C2005/4585, Transcript of Proceedings [2005] AIRCTrans 2242 (27 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13172-1

VICE PRESIDENT ROSS

C2005/4585

APPEAL BY VITASOY AUSTRALIA PRODUCTS PTY LTD
s.45 Appeal to Full Bench
(C2005/4585)

SYDNEY

11.11AM, FRIDAY, 14 OCTOBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

Reserved for Decision

PN1

MR C O'GRADY: I seek leave to appear on behalf of the appellant.

PN2

MS C SERPELL: I seek leave to appear on behalf of Ms Schirmer, the respondent in this stay.

PN3

THE VICE PRESIDENT: Thank you, Ms Serpell. Leave is granted in both cases. I think for some reason this appeal has been put on the Sydney appeal roster hence I'm here, although dealing with other matters today and you're all in Melbourne. Do I take it though that in relation to the hearing of the substantive appeal that it's the desire of everyone that that take place in Melbourne?

PN4

MS SERPELL: I don't have precise instructions as to that, your Honour, but I would expect that they are the instructions I receive.

PN5

MR O'GRADY: And we're in the same position, your Honour.

PN6

THE VICE PRESIDENT: Okay. Well, perhaps you can advice my associate in due course, Ms Serpell, if there's any change in your position and I can advise the President's chambers accordingly. In relation to the application for a stay, I have had an opportunity to read the decision subject to appeal, the grounds of appeal and some of the material in the appeal books. I have also received a written outline of submission from Mr O'Grady that it might be convenient to mark.

EXHIBIT #A1 OUTLINE OF SUBMISSION FROM
MR O'GRADY

PN7

MR O'GRADY: Thank you, your Honour.

PN8

THE VICE PRESIDENT: I have gone through that and perhaps if I can take you to it now. There's no need to read it but perhaps if I identify some issues and then you can say whatever you wish to say by way of supplementation. I take it you have got a copy of this, Mr Serpell, is that right?

PN9

MS SERPELL: I received a copy of this, yes, shortly before you came on this morning, your Honour.

PN10

THE VICE PRESIDENT: Yes, so did I. Do you want some time to look at it?

PN11

MS SERPELL: Your Honour, I'm about half way through I think and I did have a flick through the back section. I think I will be all right to proceed at this point.

PN12

THE VICE PRESIDENT: Well, what we can do is I can put my questions, we can hear from Mr O'Grady, have a short adjournment to give you whatever opportunity you need to complete your review of it.

PN13

MS SERPELL: Thank you, your Honour, I would be grateful for that.

PN14

THE VICE PRESIDENT: Mr O'Grady, you set out the principles in respect of the granting of a stay and in respect of the arguable case matter probably I think the gravamen of your argument is at paragraph 8 of your outline where you point to what you say is the error, or one of the errors you identify and that is that rather than the Commissioner considering for herself on the basis of all of the medical evidence that was before her, whether there was a valid reason for the termination, she confined her analysis to whether the employer on the basis of the material before the employer had a valid reason for the termination and you say that a review of the evidence and you have highlighted some passages from the evidence, would support the proposition that there was a valid reason rather than simply looking at the medical certificates in isolation. They had to be seen against the context of the medical evidence in the case itself.

PN15

MR O'GRADY: Yes, your Honour.

PN16

THE VICE PRESIDENT: Where the employer only had the medical certificates available at that time.

PN17

MR O'GRADY: Indeed.

PN18

THE VICE PRESIDENT: Is that the essence of your argument in relation to that point?

PN19

MR O'GRADY: It is, your Honour. This is an unusual case of course where the applicant at this stage hasn't worked for the respondent for some 13 months and hadn't worked for the respondent for 13 months at the date of the termination. In that time there had been some significant changes at the workplace, both with respect to the allocation of duties and with respect to the rostering systems. Now, the medical certificates that were issued by her treating doctors at the time didn't take those changes into account. It was really only at the hearing that they were made aware of those changes and were given an opportunity to express a view as to what impact that might have on Ms Schirmer's health.

PN20

The other matter we would say is important in this analysis, your Honour, is the nature of Ms Schirmer's condition of course was an anxiety condition brought upon at least in part by the way in which she was interacting with other people in the workplace including her supervisor.

PN21

THE VICE PRESIDENT: But her supervisor had left the employment prior to the events that we're concerned with.

PN22

MR O'GRADY: Yes, your Honour, but the evidence, and I haven't extracted this part of it for your Honour, but the evidence we would say shows the way in which the applicant had tasks allocated to her and the way in which she was interacting with other people in the laboratory had contributed to her anxiety condition and those problems were still going to be there, your Honour, whether the supervisor was there or not on our case.

PN23

THE VICE PRESIDENT: I see.

PN24

MR O'GRADY: And this is of course a case where in the 13 months prior to the termination the doctors had expressed a considered view that the applicant's condition was such that she could not perform any duties whatsoever for the respondent.

PN25

THE VICE PRESIDENT: Against that and the factors the Commissioner considered are the change in circumstances, that is, I think the WorkCover matter had been resolved and the applicant's supervisor had left the employment and then some, I think two months or so, past. A point you made in your written submissions below that there was no immediate step to return, but some months after those events occurred the applicant presented to her general practitioner firstly and then later that day to her treating psychologist.

PN26

MR O'GRADY: Yes.

PN27

THE VICE PRESIDENT: What do you say in relation to that proposition that, well, the reason why there's been a change in the applicant's condition is there's been a change in the circumstances which gave rise to it or aggravated the condition?

PN28

MR O'GRADY: Well, your Honour, we don't say that there might not have been - that those factors may not have played a role, but as we read the decision the Commissioner has decided that the only restriction on the applicant was that after three weeks - shouldn't couldn't perform normal hours for three weeks and that the validity of the reason for termination has to be assessed on that basis.

PN29

THE VICE PRESIDENT: Yes.

PN30

MR O'GRADY: And in my respectful submission that approach doesn't take into account the other factors I've adverted to, your Honour, and it doesn't take into account the medical evidence given by the treating doctors at the hearing.

PN31

THE VICE PRESIDENT: Yes.

PN32

MR O'GRADY: Because as you will have seen from the excerpts that I've put in the outline, your Honour, that they do speak in terms of this being a trial or this being reviewed. Now, the Commissioner might have said, well, I find that it doesn't constitute a valid reason for and employer in those circumstances to deny the applicant an opportunity to trial a return. But in my respectful submission that's not what the Commissioner has done, because she does seem to have focused on the pre-emptive way, to use her term, that the respondent reached the conclusion that it was going to terminate the applicant's employment.

PN33

THE VICE PRESIDENT: And you set out your arguments in respect to the arguable case regarding the remedy at paragraph 9 and I understand what you say there. In respect of balance of convenience, this issue was dealt with in a Full Bench decision in Coal and Allied v Crawford.

PN34

MR O'GRADY: Yes.

PN35

THE VICE PRESIDENT: And as I understand the test from that decision it's a requirement to have regard to all of the circumstances and in that context the matter you have raised, that is, the repayment of the sums, is a consideration, as is the hardship that might be visited on the respondent by not being paid pending the determination of the appeal.

PN36

MR O'GRADY: Yes, your Honour.

PN37

THE VICE PRESIDENT: You have proposed one method of securing repayment or ensuring that it's not an issue. Another method that is adverted to in that Full Bench decision is to require that money only be paid if some procedure is to adopt the - to protect the appellant rather - sorry, is to require money only be paid if some procedure is adopted to protect the appellant in the event that the appeal succeeds. The procedure may be an undertaking to repay or a requirement that the money be preserved in an interest bearing account, which is the option that you have proposed.

PN38

MR O'GRADY: Yes.

PN39

THE VICE PRESIDENT: Perhaps I should put Ms Serpell on notice as to that issue also when you come to address this point. The Full Bench is clearly indicating that it's an issue that needs to be addressed, the question of, well, what happens to this money in the event that the appeal succeeds.

PN40

MR O'GRADY: Yes, your Honour. With respect to balance of convenience, your Honour will have seen it in paragraph 3 of the outline but we of course do rely upon the principle that was annuciated by Munro J in the Herald & Weekly Times case and was picked up by Senior Deputy President March in the Toby Container Terminals case, that the starting point we would say, or the prima facie position where you're dealing with the intervention of the Commission imposing a duty or obligation upon an appellant is that the status quo prior to the imposition of the obligation would be the normal outcome.

PN41

I say that, your Honour, simply saying that that's a matter that your Honour would have to take into account notwithstanding the other matters that your Honour has raised.

PN42

THE VICE PRESIDENT: Just bearing with me for a moment.

PN43

MR O'GRADY: Yes, your Honour.

PN44

THE VICE PRESIDENT: Yes.

PN45

MR O'GRADY: Your Honour, I don't believe this has been forwarded to the Commission but there has been an exchange - well, the position that I flag in paragraph 10 of the outline about the money into an account, we have written to the applicant's solicitors putting that offer to them, but my understanding is that's been rejected and your Honour of course has a very broad discretion under section 45(4) with respect to the conditions upon which a stay would be granted and, you know, if there are other ways of addressing any concerns that the applicant might have that these moneys wouldn't be paid, you know, we're happy to obviously explore those.

PN46

THE VICE PRESIDENT: Okay. Thank you, Mr O'Grady. Was there anything you wished to add to the material that you've submitted?

PN47

MR O'GRADY: No, your Honour.

PN48

THE VICE PRESIDENT: Ms Serpell, do you want a moment or how do you want to proceed?

PN49

MS SERPELL: A moment would be very handy, your Honour, and in fact if I could have, perhaps 10 minutes would be useful.

PN50

THE VICE PRESIDENT: Certainly.

PN51

MS SERPELL: Thank you, your Honour.

PN52

THE VICE PRESIDENT: We will adjourn for 10 minutes. Thank you.

<SHORT ADJOURNMENT [11.25AM]
<RESUMED [11.46AM]

PN53

THE VICE PRESIDENT: Yes, Ms Serpell, I'm sorry it was a little bit longer than I anticipated, I got caught up on the telephone.

PN54

MS SERPELL: Thank you for the time, your Honour. Your Honour, I will go through various parts. Firstly I will just a couple of points in the submissions of the appellant, certainly commencing at the first page. We don't take issue in my submission with matters set out in principles at paragraphs 2 and 3 however we do take issue, and it's a point I will come back to with your Honour's discretion, I'll come back to when I get into my submissions proper.

PN55

THE VICE PRESIDENT: I'm sorry, you don't take issue with 1, 2 and 3 or you do?

PN56

MS SERPELL: 1 and 2, we do take issue with paragraph 3.

PN57

THE VICE PRESIDENT: I see, yes. Yes, I see.

PN58

MS SERPELL: But if it's convenient, your Honour, I will address that later in my submissions.

PN59

THE VICE PRESIDENT: That's fine.

PN60

MS SERPELL: Your Honour, at paragraph 5 we certainly say it was entirely open to Commissioner Cargill to indeed come to the view that she does that it was unreasonable for the employer to reject what was expressed in the medical certificate without consulting the applicant's treating doctors and this is a point that will also come up and again and again within the context of the decision that Commissioner Cargill made. She expresses at paragraph 5 that indeed - and your Honour, you will also too have already no doubt or well aware that extensive evidence material provided in this case is substantial and she indicates at paragraphs 5:

PN61

That whilst I might not specifically refer to each and every issue in reaching my conclusions I have had regard to all relevant materials and evidence before me.

PN62

Your Honour, we say that's it's incumbent upon the appellant to demonstrate an error of the exercise of the discretion and in my submission it's very clear that there is no such demonstration of any error and I will go into this in more detail shortly, your Honour. Your Honour, putting to one side for a moment the submissions of the appellant and just addressing points raised verbally in exchanges with your Honour shortly before the adjournment, certainly it's my submission that it will be incorrect reading of the decision to say, as the appellant does, that Commissioner Cargill confined her analysis to whether or not the employer had a valid reason, rather than undertaking her own assessment of all the evidence and all the material before her, as she expressly identifies in paragraph 5.

PN63

Your Honour, it was said on behalf of the appellant that the nature of
Ms Schirmer's condition, namely, anxiety, was brought upon by interaction with others in the workplace including the supervisor. Your Honour, I appreciate you probably have not had sufficient time to go through the transcript which is reasonably extensive but in my submission that is certainly not a fair reading of the evidence. As your Honour indicated, it was the supervisor herself, not others in the workplace that was the culprit if you like and as your Honour correctly identified, she was no longer there at the time of the termination. It was not others as has been put by Mr O'Grady and in my submission that's not putting the evidence fairly.

PN64

Indeed really, your Honour, it's my submission that is the appellant is effectively seeking to usurp the Commissioner's discretion rather than identifying a demonstrable error. Your Honour, it's said that there was only a consideration by the Commissioner as to the time frame of the return to work and again, your Honour, within the context of that paragraph 5 statement by the Commissioner it cannot be said that really because Commissioner Cargill doesn't refer to each and every item thrown by the respondent in the hearing which took some considerable time that she therefore did not take those matters into account.

PN65

It was the exercise of her discretion in my submission and that discretion in my submission was one that was entirely open to her. Your Honour, I am just moving through the points raised in response to your questions to Mr O'Grady and I will just completely those shortly and move into addressing more specific matters if you like.

PN66

THE VICE PRESIDENT: Just while you're doing that, Ms Serpell, before you move to the balance of convenience issue will you come to paragraph 9 of the appellant's outline as well? I'm not suggesting you need to do it now, in your own time.

PN67

MS SERPELL: Yes, your Honour. Paragraph 9 of the appellant's submissions this morning?

PN68

THE VICE PRESIDENT: Yes.

PN69

MS SERPELL: Yes, thank you, your Honour. I will make a note of that and put it in the order I have in this pile underneath my hand.

PN70

THE VICE PRESIDENT: Okay.

PN71

MS SERPELL: Your Honour, it was put by Mr O'Grady that the appellant had put an offer to Ms Schirmer that the moneys otherwise owing to her as at - and this is on and from with the effect of the order, 17 October, starting Monday coming, that they put that money in an interest bearing account. Your Honour, the history there is important to understand so that the correct reflection is given and indeed that was an offer that was made late yesterday that was only received by me by fax this morning in response to an offer some days ago by Ms Schirmer to otherwise consent to the stay if moneys paid and owing to her were otherwise paid to her with, your Honour, an undertaking, a written undertaking that she would repay the moneys in the event that the appellant was successful in its appeal.

PN72

Your Honour, that was a letter dated 11 October and there was for some considerable time no response at all to that offer and only very late yesterday a fax through sent putting a contrary offer or counter position by the respondent which in my submission, your Honour, really doesn't address matters that I will take you to shortly as to hardship presently placed on Ms Schirmer who if the stay is granted will not get the benefit of the reinstatement order in the financial sense, not in the other senses of putting aside perhaps for one moment the other advantages any employee is likely to get from being able to participate in meaningful work.

PN73

Your Honour, I will now turn to the - I have got here before me the appellant's notice of appeal and I note, your Honour, that there is nothing addressed in the notice of appeal addressing the public interest ground that in my submission there is no arguable case for on any public interest based on my submission that there is no demonstrable error disclosed and no arguable case as to a demonstrable error, as required in order to grant a stay. Your Honour, at paragraph 1 of the notice of appeal on the first page it's said that the Commissioner failed to determine for herself, as I referred to before, the question of valid reason.

PN74

Your Honour, with the decision in hand, it's my submission that a reading, as I appreciate you have at least a reading of the decision of Commissioner, Cargill, at paragraphs 101 through to 105 clearly disclose that Commissioner Cargill did engage in a proper process in coming to an appropriate and indeed wholly desirably outcome on the part of Ms Schirmer in relation to ..... indeed it's entirely open to her. Moving through, your Honour, the matters that follow on the next page, it's said by the appellant that Ms Schirmer's incapacity to perform duties for a period of 13 months was not given any or sufficient weight and other matters below, your Honour, I have against (c)(i), paragraph 112 of the Commissioner's decision and indeed, your Honour, I am happy to revert to those paragraphs and go into more detail.

PN75

THE VICE PRESIDENT: Mr O'Grady, when you're shuffling your papers can you be careful you don't hit the microphone, otherwise I can't hear what
Ms Serpell is saying.

PN76

MR O'GRADY: I apologise, your Honour.

PN77

THE VICE PRESIDENT: No, that's fine. Sorry, Ms Serpell.

PN78

MS SERPELL: Thank you, your Honour. As you can see at paragraph 112, the Commissioner clearly states:

PN79

In all of the circumstances of the case and having had regard to all of the above matters in my findings, I determine that the termination of the applicant's employment was harsh, unjust and unreasonable.

PN80

And she talks about the remedy that she turns to there. Your Honour, when you move down to paragraph 116 with respect to - and this is (1)(c)(ii), she actually identifies the consideration and indeed the speculation required where she weighs up and she says, and this is the second sentence in paragraph 116:

PN81

On one hand, if the applicant returned to work in August 2004 she may have had difficulty coping with the various changes that had taken place ...(reads)... comparatively short period of time.

PN82

Your Honour, there she identifies and as she does in other parts of her decision, exactly what it was she was grappling with, which are clear indications in my submission of the many and numerous matters that were raised by the respondent in relation to Ms Schirmer's ability to return to work and it's never a hidden factor that she hadn't been there for some 13 months. That was something repeatedly reverted to in transcript.

PN83

Your Honour, those other issues that fall under (c) are again covered in my submission with reference to paragraphs 116 and 117 and the next relevant section or part of the decision is really paragraph 121 and particularly, and this is in relation to (1)(d), the last two dot points of paragraph 121. You can see there, your Honour, the Commissioner speaks of her satisfaction, her positive satisfaction. She talks about and weighs up the considerations. She talks about satisfaction that Ms Schirmer is able to be retrained in relation to new duties and the respondent has repeatedly in its notice of appeal identified the ground of that not being taken into account, the other duties that might be required of her, and these are new duties she talks about in that paragraph:

PN84

Within a reasonable period of time and her willingness to work rotating rosters.

PN85

These are considerations that she has in fact made and it is in my submission quite wrong of the appellant to say that they are matters to which she has not given sufficient weight or properly adverted, that she's somehow not carried out a thorough and proper approach as required. Your Honour, paragraph 104 with respect to (1)(e) of the notice of appeal of the appellant, and this is on page 24, your Honour, and page 25 - sorry, it's the first dot point. Your Honour, it's the first dot point on page 23 of Commissioner Cargill's decision where she identifies the medical certificate and talks about the fact that they are somewhat at odds with each other, but then goes on to identify precisely in the second paragraph she accepts the evidence of Dr Sowden and Dr Williams as the reason for the issue of the two certificates.

PN86

So the discrepancy or any concern there is specifically identified by Commissioner Cargill and dealt with. She goes on to say that there was no other medical opinion before the respondent, that it wouldn't have unreasonable for the concerns to have been raised by the respondent. Your Honour, again the point that I make is quite simply that Commissioner Cargill has had a proper consideration of the matters to which the appellant says have not been given sufficient weight and in my submission that just does not amount to and certainly doesn't provide an arguable case that there is a demonstrable error.

PN87

That also applies to the hours and the duties. Indeed, your Honour, it's quite clear that these are specific matters that are covered absolutely by paragraph 5 of her decision, save many trees being put to death to support a decision that goes into each and every aspect. Your Honour, in my submission quite clearly Commissioner Cargill has addressed the relevant and the decision and the findings that she came to were absolutely open to her. Your Honour, really as we move through the rest of the grounds of appeal there is a repetition of much of what I have adverted to already, other than it flows on into the second dot point of paragraph 104 of Commissioner Cargill's decision where she describes that the respondent's efforts to attempt to have the applicant return to work and she simply is evident by then she prefers the applicant's evidence.

PN88

Your Honour, I will move onto my submissions on the law and on the balance of convenience, your Honour, on that question it's submitted that the appellant has produced nothing that should sufficiently persuade your Honour to depart from the general position and that general position in my submission is that a successful litigant ought to be entitled to the benefit of the order made and I refer to a judgment of Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd.

PN89

THE VICE PRESIDENT: And I'm sorry, Myer Emporium?

PN90

MS SERPELL: Myer Emporium, your Honour, Ltd, that's [1986] HCA 13; (1989) 160 CLR 220 at 222 to 223.

PN91

THE VICE PRESIDENT: Yes.

PN92

MS SERPELL: Your Honour, his Honour said there:

PN93

It's well established by authority the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances ...(reads)... determination of any appeal.

PN94

He goes on in that same paragraph to state:

PN95

Special circumstances justifying a stay will exist when it's necessary to ...(reads)... from being nugatory.

PN96

Your Honour, I further refer you to a decision of a Full Bench of this Commission of which your Honour was a part, namely Edwards v Telstra, being print Q2467 and your Honour, the passage I quote from that decision is this:

PN97

We only wish to note that previous Commission decisions have suggested that where the intervention of the Commission has imposed an ...(reads)... and employees. The same problem -

PN98

And this is the important part, your Honour:

PN99

The same problem does not arise in respect of an order under section 170CH which is directed at an individual applicant.

PN100

And it goes on, the quote further down:

PN101

In our view previous statements about the prima facie position favouring the granting of a stay require reconsideration in the context of section 170CH ...(reads)... was harsh, unjust or unreasonable.

PN102

And again, your Honour, there's a cite within that decision to the matter of re Thiess Watkan's White Group and Others, being print J0194, a Full Bench decision, your Honour, where it said:

PN103

These appeals are made on the basis that the result obtained by the ...(reads)... affected by the granting of such a stay.

PN104

And this is the most telling point, your Honour:

PN105

It may be that in a case where there's no apparently substantial challenge to the jurisdiction of the Commission to make an order for reinstatement ...(reads)... by the employer in these proceedings.

PN106

Your Honour, it's submitted that - excuse me, your Honour. I refer to the decision of Coal and Allied Operation v Crawford, your Honour I believe has that decision in front of him, that the Full Bench considered the approach and what was said in Edwards, found no inconsistency with the approach it took about balance of convenience and the Full Bench there went on to identify where an order for payment under 170CH has been made and here, your Honour, the order for reinstatement is one that has the obvious intended consequence of bringing with it a financial benefit to Ms Schirmer and really the absence of an order for payment, I should point out, I'm not sure whether your Honour is award, there is actually a separate appeal that has been lodged.

PN107

THE VICE PRESIDENT: Yes, in relation to the failure to make an order with respect to lost remuneration.

PN108

MS SERPELL: Precisely, your Honour. That's right, your Honour. But in Coal and Allied the Full Bench stated:

PN109

It's appropriate to have regard to the financial position of the person who stands to benefit from the remedy.

PN110

This is at paragraph 16.

PN111

THE VICE PRESIDENT: yes.

PN112

MS SERPELL: And it's said:

PN113

Where the person is suffering financial hardship the stay order might be moulded to provide some access to the remedy pending the appeal.

PN114

In my submission there it determines that it's appropriate to order a stay would be appropriate in all the circumstances. If your Honour is minded to grant the stay then it would be appropriate to make a particular term or condition of that stay that the respondent be required to make prompt payment on .....

PN115

THE VICE PRESIDENT: Mr O'Grady.

PN116

MR O'GRADY: Sorry, your Honour. I'm not touching the microphone but apparently it transmits through the table.

PN117

THE VICE PRESIDENT: You're touching something.

PN118

MR O'GRADY: I'm sorry.

PN119

THE VICE PRESIDENT: No, that's all right.

PN120

MS SERPELL: Should I go back a little, your Honour?

PN121

THE VICE PRESIDENT: Yes, if you wouldn't mind, Ms Serpell. I lost you after you said if I minded to grant a stay.

PN122

MS SERPELL: Yes, your Honour. Okay, thank you. In my submission, your Honour, it would be appropriate, if that's what you were minded to do, to make a particular term or condition of such an order to be that the appellant is required to make prompt payment on and from 17 October 2005 to Ms Schirmer through her solicitors in order for it to be monitored carefully, and indeed there is a history in this matter of somewhat the delays in payment that are otherwise been conceded are properly paid.

PN123

Your Honour, the other point I wanted to make, your Honour, is that there's certainly no evidence of Ms Schirmer not being able to repay in the event of the appellant being successful in its appeal and that indeed is supported by the precise wording of the letter which contained the offer made to the appellants in the previous few days where it is her written undertaking to repay the moneys in the event that the appellant is successful and in my submission your Honour ought to be satisfied that Ms Schirmer is suffering hardship, financial hardship.

PN124

The evidence in the hearing of the application before Commissioner Cargill certainly demonstrated that fact. Ms Schirmer hasn't been in paid employment since 18 June 2003 when she suffered the psychological injury in the workplace and Ms Schirmer is unable to obtain paid employment easily elsewhere. Those matters are referred to - - -

PN125

THE VICE PRESIDENT: I think the point was made that Ms Schirmer is 61 and in the location where she resides - - -

PN126

MS SERPELL: Precisely, your Honour.

PN127

THE VICE PRESIDENT: Alternative employment is not readily available. That's adverted to in the decision.

PN128

MS SERPELL: That's correct, your Honour, and it's adverted to directly by the Commissioner as well as addressed in the summary of submissions on behalf of Ms Schirmer that she sets out.

PN129

THE VICE PRESIDENT: Is it still the case that Ms Schirmer is not employed?

PN130

MS SERPELL: That's correct, your Honour.

PN131

THE VICE PRESIDENT: Okay. So she's not receiving any remuneration from work?

PN132

MS SERPELL: That's correct. Indeed the transcript reveals that she was on a Newstart allowance and my instructions are that that position hasn't changed and certainly not a particularly lucrative income, your Honour. Apart from her age and her geographic location, the mere fact that she is an employee with a workplace injury history of some substance also makes it difficult for her to obtain paid work elsewhere and, your Honour, at paragraph 77 of Ms Schirmer's statement there's a reference to her husband's working situation as well which I'm instructed has not improved very much at all since making that statement.

PN133

You will find in transcript reference to the fact that on the day of the hearing he had been given a day's work but that not does not change with any real effect the position that's set out at paragraph 77 of the applicant's statement which in more detail, your Honour, simply indicates that he had not been able to obtain work himself for some considerable time. That related to some physical injuries he obtained the workplace.

PN134

THE VICE PRESIDENT: Yes.

PN135

MS SERPELL: Your Honour, at paragraph - - -

PN136

THE VICE PRESIDENT: Just before we leave for that a moment can you just bear with me a moment?

PN137

MS SERPELL: Yes, your Honour.

PN138

THE VICE PRESIDENT: So the order that was made on 19 September was to operate within 28 days. When is the 28 days up, is that Monday?

PN139

MS SERPELL: The 28 days in my calculation, your Honour, is 17 October. That would be four weeks from the Monday which was 19 September.

PN140

THE VICE PRESIDENT: And when you say they should make prompt payment to Ms Schirmer, of what amount and on what basis do you calculate that

PN141

MS SERPELL: Your Honour, it would be the amounts she would otherwise be paid if she were appointed to the position or a similar position that she was in prior to her termination and the income she would have received had she been working there at this time. Your Honour, my understanding is that the people in the section, the laboratory, it's a laboratory position that we're talking about, were all on the same income other than supervisors and other people who were on a different level.

PN142

THE VICE PRESIDENT: But the certificate, the second certificate doesn't have any prospect of full time employment. In the first week it's four hours a day for three days and a week and I think the second is four hours a day for five days a week, the third is six hours a day for five days and then in full time employment.

PN143

MS SERPELL: That's correct, yes.

PN144

THE VICE PRESIDENT: So you're proposing some sort of pro rata based on that certificate

PN145

MS SERPELL: No, your Honour, that certificate relates to a period back just prior to the termination of Ms Schirmer's employment in August 2004, early August 2004. The decision and the evidence of Ms Schirmer and the doctors was indeed equally supportive of her simply returning to work without any graduated return on and from 17 October and indeed, your Honour, Ms Schirmer made contact with the company indicating she was ready, willing and able to work in recent weeks. So your Honour, in my submission there's no need for any pro rata or graduated return. It would merely be the same amount that she would otherwise be entitled to for full time work.

PN146

THE VICE PRESIDENT: And is there a medical certificate to that effect?

PN147

MS SERPELL: Your Honour, there is no medical certificate. It's the order of Commissioner Cargill that reinstates her without any reference to it being a graduated return, but indeed, your Honour, that is something that may well be addressed by doctors and it could indeed perhaps form a part of your Honour's order, that it be the amount be referrable to any medical certificate obtained in relation to her ability to return to work on and from 17 October.

PN148

THE VICE PRESIDENT: I suppose the difficulty with that is that there's an element of artificiality about it in that there's evidence in the proceedings before Commissioner Cargill that at that point the medical advice was in favour of a graduated return to work. Mr O'Grady has referred to some of that material, also the reference to a trial, et cetera. Even if one obtained a more recent assessment that suggested a graduated return, there would be an element of speculation on my part that that graduated return would work well in practice.

PN149

MS SERPELL: In my submission, your Honour, speculation is not required. My primary submission is simply that the order ought be reflected in the consideration you have which is, which does not account for or make any allowance for a graduated return and that has not been something that Ms Schirmer or her doctors have brought to her attention as being something that's required. She has received recent medical advice and she has not been told that she needs a graduated return to work.

PN150

THE VICE PRESIDENT: I don't have any evidence about that though.

PN151

MS SERPELL: I appreciate that, your Honour, but in my submission there's two ways to deal with it. First would be to simply take the order as it is which does not require any graduated return to work, in the alternative I would certainly be content to obtain some instructions from my client to obtain a - seek my client obtain a medical opinion as to her capacity to return to work as at 17 October.

PN152

THE VICE PRESIDENT: Okay.

PN153

MS SERPELL: Your Honour, further to the difficulty of financial hardship of Ms Schirmer, the paragraph number and this is in the transcript, it's 1121,
Ms Schirmer says that she wants to go back because she needs the money. It's not that she just want to fill in her time, she otherwise have a life that does permit her to get on with things without earning an income. At paragraph 21 in Coal and Allied v Crawford, your Honour, the Full Bench rejected the argument by the appellant there that there was no evidence or no sufficient evidence that the employees were suffering hardship. Indeed there was only evidence directly of hardship of one of a number of employees and it was held sufficient that the form of order was directed to those who were wholly or partially income in a relevant fortnight.

PN154

In the matter before your Honour Ms Schirmer hasn't received as indicated earlier paid income for nearly two and a half years and in Coal and Allied the Full Bench go on to say:

PN155

We think without income is a fair proxy for hardship.

PN156

THE VICE PRESIDENT: Yes.

PN157

MS SERPELL: On the question of balance of convenience, your Honour, it's submitted that as a matter of principle no suggestion that the situation couldn't be reversed. There's simply no suggestion that Ms Schirmer could not address repayment issues when proceedings are finally decided if the appellant were successful. As I indicated, she made a written undertaking to that effect which was reflected in the letter forwarded by my instructing solicitors to the appellant. Your Honour has asked me to specifically address paragraph 9 of the submissions made on behalf of the appellant and, your Honour, other than the submissions already made on that point it's my submission that there really isn't any modification that is required to the hours, the duties.

PN158

Commissioner Cargill refers to the changes in the workplace within her decision and in my submission there simply isn't a need for further order to specifically seek to address the matters thrown by the respondent - sorry, by the appellant in this matter. Unless there any other matters I can assist your Honour with, those are my submissions.

PN159

THE VICE PRESIDENT: Thank you, Ms Serpell. You have referred to the letter that you sent to the other side regarding the proposal you were advancing. I can give you a ready way for you to put that in front of me, perhaps if you read it.

PN160

MS SERPELL: I am happy to read it, your Honour. I am sure Mr O'Grady will jump up if I divert in any respect from the letter that he has in front of him. Would your Honour be seeking I read out the whole letter or simply the paragraph that refers to it?

PN161

THE VICE PRESIDENT: Just the relevant paragraph I think. If Mr O'Grady wants to draw my attention to another part of it he will do that.

PN162

MS SERPELL: Thank you, your Honour. Your Honour, this is a letter from Harris Lieberman Boyd to Clayton Utz dated 11 October 2004 and it's to the address of Rose Bryant-Smith who is present in court today, in the Commission today. Your Honour, at the fourth paragraph which commences on the bottom of the first page it states:

PN163

Our client's instructions are that they/she would consent to a stay of the order for reinstatement subject to your clients paying her salary from 17 October 2005 (the last date by which pursuant to the orders your client was to reinstate our client), until the appeals are determined. Our client undertakes to repay salary received in the event that this is required as a result of the outcome of the appeal. I would appreciate your taking urgent instructions with respect to this proposal.

PN164

And that's the end of the letter, your Honour.

PN165

THE VICE PRESIDENT: Okay. Thank you, Ms Serpell. Anything in reply,
Mr O'Grady?

PN166

MR O'GRADY: Just briefly, your Honour. Your Honour, with respect to
Ms Serpell's reliance on paragraph 5 of Commissioner Cargill's decision, your Honour, as to the issue of valid reason in my respectful submission the focus really should be on what the Commissioner said at paragraphs 104 and 105 and for the reasons that I've put in the written outline it's clear that there the Commissioner is not asking herself whether she believes that there was a valid reason at the date of termination but rather whether the respondent would on the material before it had found a valid reason.

PN167

With respect to the nature of the tensions that led to Ms Schirmer's anxiety condition, if I could simply refer your Honour to paragraphs 18 and 20 of the submissions we filed below. I understand you have got those, but they highlight the types of matters that led to Ms Schirmer being unable to work for 13 months and included things along the lines of a dispute over paperwork with other employees and the like which Ms Schirmer attributed to her supervisor but which we would say there was no evidence that that was indeed the case.

PN168

As to the nature of the appeal, my friend says that there is no evidence of public interest. We of course note that if there is an error of the type we believe that we would say gives rise to public interest with the grant of leave - - -

PN169

THE VICE PRESIDENT: Well, in any event, public interest isn't required for leave to be granted.

PN170

MR O'GRADY: That was the next submission that I was going to make, your Honour. Your Honour, with respect to the balance of convenience points, your Honour, rely upon the Toby and Herald & Weekly Times line of authority. I accept that your Honour did comment, as a member of a Full Bench did comment on that line of authority in Telstra v Edwards. Your Honour will have noted of course that the Toby decision was to decide by SDP Marsh some two years after your Honour's observations in the Telstra v Edwards case and in my respectful submission it's still the appropriate approach.

PN171

My friend's reliance upon cases in other courts where the rules expressly require special or exceptional circumstances for a grant of leave in my respectful submission doesn't assist the Commission in this case.

PN172

THE VICE PRESIDENT: Well, in relation to her Honour's decision that predates Coal and Allied which is really the authority that I'm obliged to apply and Coal and Allied makes it clear that care should be taken, and I quote from paragraph 16 of the decision:

PN173

The Commission has wide powers to make orders and require undertakings to meet the circumstances of particular cases. Care should be ...(reads)... All of the circumstances must be considered.

PN174

Well, isn't that really directed at both your submissions and Ms Serpell's who have each sought to characterise the balance of convenience in a particular way?
Ms Serpell by reference to what Dawson J said regarding access to the fruits of victory and your reliance on the earlier authorities of where convenience might generally lie. Isn't really a question for me to have regard to all of the circumstances in the case and make a decision on that basis?

PN175

MR O'GRADY: I accept that, your Honour, although in undertaking that task we would say that it is significant that the orders that we're seeking to have stayed would otherwise impose an obligation upon us to do something that we're not otherwise required to do and - - -

PN176

THE VICE PRESIDENT: Well, stays are only sought where there's an order that imposes something on you that you would otherwise not be required to do.

PN177

MR O'GRADY: I accept that, your Honour, but here we have a requirement - your Honour would have regard in my submission to the nature of what we've been required to do and the consequences that would flow from that and we've explained why in my respectful submission they are powerful considerations in favour of a stay.

PN178

THE VICE PRESIDENT: Yes.

PN179

MR O'GRADY: If your - - -

PN180

THE VICE PRESIDENT: I'm sorry, Mr O'Grady. So in that context when the circumstances would relate to issues such as absent a stay there would be a requirement to terminate the employment of another employee. It's the convenience arguments if you like that were advanced against the order of reinstatement in the first place, is that the - - -

PN181

MR O'GRADY: Indeed, your Honour, and they also include issues along the lines of the need to retrain Ms Schirmer. Now, the Commissioner addressed that and expressed a view that that could be done within a relatively short time frame but there is going to be disruption that flows from that and we would also be relying upon the potential of further injury to Ms Schirmer associated with her being reinstated and those matters were set out in the submissions that we've already had regard to, your Honour.

PN182

Your Honour, my friend has said that there's no evidence of hardship, however she has gone on to - sorry, my friend has said there's no evidence that moneys couldn't be repaid but then gone on and put a number of submissions with respect to hardship. In my submission the matters adverted to by my friend under that heading, those suggest that there might be some very real concerns about capacity to repay. At the moment according to Ms Serpell Ms Schirmer is on a Newstart allowance. One assumes that if payments were made to her that allowance would cease.

PN183

THE VICE PRESIDENT: Cease or - yes, be varied in some way.

PN184

MR O'GRADY: Indeed, your Honour, and then we're in a situation where if there is a requirement for money to be repaid if the appellant was successful in this appeal then Ms Schirmer is going to be considerably worse off financially than she would be if these moneys weren't paid to her in the first place and in my submission that's a power consideration against an order that moneys be paid to Ms Schirmer and/or that she be reinstated in the interim. Your Honour, in that regard of course whilst Ms Schirmer has asserted in the correspondence that you've been taken to that she would repay the moneys if ordered to do so by the Commission there's been no evidence as to how she would facilitate that.

PN185

The final point I would make in this regard, your Honour, is that this is not a case where somebody's income stream has been interrupted because of the decision to terminate their employment and there's an issue about, well, how do we avert the hardship that would inevitably flow from that in the relatively short time frame between the application for a stay and the hearing and determination of the appeal. In this case Ms Schirmer hasn't been receiving income from the respondent for a considerable period of time and one assumes that her finances have been tailored to accommodate that. If that status quo was interfered with it might do as we have said in our written submissions, occasion greater hardship should the appellant be successful on the hearing of the determination of the appeal.

PN186

With respect to the issue that you discussed with Ms Serpell regarding the medical evidence, and this is a submission that we put in the submissions below, that there was no evidence that Ms Schirmer was capable of returning to work at the date of the hearing of the proceeding. Ms Schirmer's doctors were called by Ms Schirmer yet neither of them said in my view there is no reason for any limitation associated with the Ms Schirmer's return to work, and indeed that's one of the - your Honour will see that a failure to have regard to that is one of the things we've raised in the backgrounds of appeal, but in my submission your Honour couldn't assume on the evidence that Ms Schirmer could perform normal duties without modification at this juncture. If your Honour pleases, those are the submissions I wish to put in reply.

PN187

MS SERPELL: Your Honour.

PN188

THE VICE PRESIDENT: Yes, Ms Serpell.

PN189

MS SERPELL: I apologise. I don't rise obviously in the circumstances but I seek leave to address a couple of the matters very briefly and I certainly wouldn't have any objection to Mr O'Grady if he had further comments to make.

PN190

THE VICE PRESIDENT: Certainly.

PN191

MS SERPELL: But it's a few matters that have arisen from his recent address. Firstly, your Honour, in my submission it ought to be remembered that the selective passages from transcript that have been pulled out and placed in the submissions of the appellant are very selective and don't give the full flavour of the evidence that was before Commissioner Cargill who clearly isn't here to consider the issue of stay. Your Honour, the appellant has talked some length of the difficulty it speculates Ms Schirmer would have in being able to repay money if required and in my submission, your Honour, there is no evidence that she wouldn't be able to do that and it's sufficient, it's not inconsistent in my view, that she's an intelligent mature woman who is able to take into account her financial situation.

PN192

She has done that for the past over two years and it's not necessary to treat her somewhat less than a mature person who is able to handle their financial situation. She has given proper instructions that she's able to repay and will repay, but it does cause her financial hardship to be denied income that she would otherwise be properly entitled to.

PN193

THE VICE PRESIDENT: The point was made as to how it might be repaid and those sorts of issues. Well, one consideration that may be relevant is whether
Ms Schirmer's living in rented accommodation or whether she owns her own home, those sorts of considerations.

PN194

MS SERPELL: Yes, your Honour.

PN195

THE VICE PRESIDENT: Is there any material of that nature?

PN196

MS SERPELL: Yes, I'm aware that Ms Schirmer does own her own home. It's not a rented situation and I appreciate that that's evidence from the bar table, your Honour, but I certainly have precise instructions as to that matter. Your Honour, it was also said by the appellant that it would be required to make room for
Ms Schirmer if she were to be reinstated and the submissions I make on that point, your Honour, is well, the order is for reinstatement. The appellant took certain acts which placed itself in that position where it employed another person and made them a full time permanent employee, it shouldn't be a matter in the first instance that prevents Ms Schirmer getting the benefit of the orders made.

PN197

But the secondary submission, your Honour, is that the other way to deal with it would be to permit Mrs Schirmer to receive the income she would otherwise expect to receive and the status quo is otherwise to that extent maintained. But, your Honour, the other issues really in my submission as to her ability to pay and repay are matters which require some speculation on the part of the appellant, as does the issue as to whether or not Ms Schirmer would cope well in the workplace. Your Honour, in my submission that's not a matter that should tax your mind or is really appropriate for the respondent to address.

PN198

There has been considerable evidence on this point and the Commissioner has properly taken into account in my submission all the necessary matters and factors relating to that. Thank you, your Honour.

PN199

THE VIC PRESIDENT: Thank you, Ms Serpell. Anything finally,
Mr O'Grady?

PN200

MR O'GRADY: No, your Honour.

PN201

THE VICE PRESIDENT: All right. Thank you each for your submissions. I propose to reserve my decision. I will make every effort to hand it down later on this afternoon. If that's not possible then I can assure you it will be delivered by close of business on Monday. Thank you for your assistance to each of you and I adjourn.

PN202

MR O'GRADY: Your Honour, before - - -

PN203

THE VICE PRESIDENT: Yes, Mr O'Grady.

PN204

MR O'GRADY: Sorry, your Honour.

PN205

THE VICE PRESIDENT: That's all right.

PN206

MR O'GRADY: Just with respect to that second alternative, am I to understand that it's common ground that absent your Honour handing down the order this afternoon there's no requirement on my client to engage Ms Schirmer on Monday?

PN207

THE VICE PRESIDENT: I think, Ms Serpell, I can certainly advise that I will make every effort to hand down the decision this afternoon.

PN208

MS SERPELL: Yes, your Honour.

PN209

THE VICE PRESIDENT: I don't think there would be any purpose in a point being taken on Monday morning as to the - - -

PN210

MS SERPELL: I can certainly pass on those thoughts, your Honour.

PN211

THE VICE PRESIDENT: If any issue arises either of you can contact me on short notice and I can deal with it as it comes up.

PN212

MS SERPELL: Your Honour, I don't anticipate that being a big drama.

PN213

THE VICE PRESIDENT: No.

PN214

MS SERPELL: If I can indicate that much at least.

PN215

MR O'GRADY: Thank you, your Honour.

PN216

THE VICE PRESIDENT: Okay, thank you. I will adjourn.

<ADJOURNED INDEFINITELY [12.39PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSION FROM
MR O'GRADY PN6