C2005/5639, Transcript of Proceedings [2005] AIRCTrans 2603 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13786-1

JUSTICE GIUDICE, PRESIDENT

C2005/5639

APPEAL BY ENTERTAINMENT DEVELOPMENT GROUP PTY LTD
s.45 - Appeal to Full Bench
(C2005/5639)

MELBOURNE

10.05AM, FRIDAY, 16 DECEMBER 2005

PN1

MR N HARRINGTON: I seek leave to appear for the appellant employer, Entertainment Development Group Pty Ltd.

PN2

MS S SAVRIMOOTOO: I am the respondent in this matter.

PN3

JUSTICE GIUDICE: Yes. You understand that Mr Harrington’s a lawyer and he needs to seek leave to appear?

PN4

MS SAVRIMOOTOO: That’s right.

PN5

JUSTICE GIUDICE: Do you object to him appearing for that company?

PN6

MS SAVRIMOOTOO: No.

PN7

JUSTICE GIUDICE: Ms Savrimootoo, there’s no need to come to the centre. The microphone near you will pick up your voice.

PN8

MS SAVRIMOOTOO: Okay.

PN9

JUSTICE GIUDICE: Thank you. Yes, leave is granted, Mr Harrington.

PN10

MR HARRINGTON: Thank you, your Honour. Your Honour, have you had much of an opportunity to look at the material, or any of the material?

PN11

JUSTICE GIUDICE: Well, I’ve certainly read the decision.

PN12

MR HARRINGTON: Yes, okay. Perhaps, your Honour, it would be appropriate to hand up to you the following documents which is the appellant’s outline of argument on stay application, a copy of the decision in Coal & Allied Operations Pty Ltd v B J Crawford & Ors PR909182, a copy of the decision in Rofin Australia Pty Ltd v K J Newton P6855, a copy of the decision in Australian Liquor Hospitality and Miscellaneous Workers Union and J C Bell v McArthur River Mining Pty Ltd Q1629 and a copy of the decision in BMS Entertainment Pty Ltd v Sawiris PR953325. Your Honour, I'll hand those up to you. I have provided a copy of all that material to Ms Savrimootoo in the minutes prior to you entering the room today.

PN13

JUSTICE GIUDICE: Yes. Well, I think if you just proceed and then if
Ms Savrimootoo needs any time to consider what’s been put or to discuss the relevance of the authorities then I'll give her some indulgence in that respect.

PN14

MR HARRINGTON: Certainly, your Honour. Your Honour, the appeal is against the decision and the orders of Commissioner Eames arising out of the termination of Ms Savrimootoo and the hearing of same. As your Honour will be well aware, for the Commission to grant a stay today it is incumbent upon the appellant to demonstrate an arguable case on the appeal, an arguable case on the question of leave and if the balance of convenience favours a stay. Those principles are summarised in Coal & Allied Operations v B J Crawford, which is before you, and I don’t think they’re particularly controversial, your Honour.

PN15

Your Honour, I might just observe from the outset that the decision and the orders were made on 23 November 2005 and pursuant to the relevant orders the orders were to come into effect 21 days from that date, which was 14 December 2005. It’s now 16 December, so in effect the orders are in operation, but the Commission did list this matter as soon as it was possible to list.

PN16

JUSTICE GIUDICE: What date was the appeal filed?

PN17

MR HARRINGTON: It was filed on 13 December which was the day before the 14th when the orders came into effect. But as your Honour is aware it requires a presidential member to hear a stay application and I understand the Commission has been rather busy of late.

PN18

JUSTICE GIUDICE: Yes.

PN19

MR HARRINGTON: The first argument as to arguable case is the determination by Commissioner Eames that tips or gratuities constitute remuneration the employee would have received had she continued to work for a further one year period. Your Honour, the argument is relatively straight forward in that tips or gratuities, monies passing from strangers or members of the public to bar staff in this particular context and it is submitted by the appellant that such monies that were paid to the respondent employee in the past can not be taken into account in the context of construing the phrase remuneration under the Act.

PN20

JUSTICE GIUDICE: Yes. Is the Commission limited to making an order in relation to remuneration?

PN21

MR HARRINGTON: Your Honour, if I take you to section ..... it’s one of the matters to take into account in assessing compensation. Your Honour, section 170CH(7).

PN22

JUSTICE GIUDICE: And you say the Commissioner wrongly took tips and gratuities into account in consideration remuneration loss or that would have been earned?

PN23

MR HARRINGTON: Yes. 170CH(2) of the Act says:

PN24

The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated.

PN25

So to use the term that’s used regularly in division 3 of part VIA which is remuneration and then moving across to section 170CH(7), this is the section that is concerned with orders of compensation. Sub-section (c) is effectively reproduced there, your Honour. In the written submissions I’ve handed up to you at page 2 paragraph 5 there is reference to a Full Bench decision in J C Bell v McArthur River Mining where the phrase rate of remuneration is considered. Moving down the page I’ve underlined the relevant part of the extract which refers to an assessed annual rate of cash payments made or liable to be made.

PN26

Now, rate of remuneration, of course, is a composite term that is relevant to what’s known as the statutory cap if you like, your Honour. Here we are concerned with simply the notion of remuneration itself.

PN27

JUSTICE GIUDICE: Leaving aside that issue about whether tips and gratuities are remuneration, would the Commissioner have been able to take into account the fact that tips and gratuities that might have been earned would not be earned? When I use the word earned, I suppose that’s - - -

PN28

MR HARRINGTON: Received perhaps.

PN29

JUSTICE GIUDICE: Received, yes.

PN30

MR HARRINGTON: That might be a matter going to harsh, unjust or unreasonable at large, but this part of the submission is concerned specifically with compensation and for the Commissioner to take a matter such as that into account it’s my respectful submission that you look to the section itself, which is what I’ve just taken you to and I'll just go back to 170CH, your Honour. Arguably (e) any other matter. The Commissioner is entitled to take other matters into account, but here in my respectful submission if you read the decision of the Commissioner he takes tips and gratuities into account as an aspect of remuneration, at least on the face of the record that is his decision. In my submission it doesn’t appear that the Commissioner purported to take that matter into account under sub-paragraph (e).

PN31

JUSTICE GIUDICE: Yes.

PN32

MR HARRINGTON: I was referring to the decision of the Full Bench in Rofin Australia v Newton P6855 where the Full Bench way back in 1997, your Honour, said:

PN33

Remuneration in our view is properly defined as the reward payable by an employer to an employee of the work done.

PN34

More recently, your Honour, you may recall I appeared before you - sorry, I withdraw that. If I might just go back to the decision in J C Bell. I referred in my submissions to paragraph 32. Paragraph 45 of the decision in J C Bell is also relevant. At that paragraph the Full Bench led by Munro J stated as follows:

PN35

For such a benefit to be a component in a rate applicable to an employee, it might reasonably be expected ...(reads)... as a quantified benefit or part of the employee's remuneration at some material time during the employment.

PN36

Your Honour, I make reference to that paragraph as a forerunner to the decision in BMS Entertainment Pty Ltd v Sawiris, which was a decision of a little over a year ago, 13 months ago in fact. Your Honour, you sat on that Full Bench and that you might recall involved the issue of Lacy SDP determining that the terminated employee, the applicant in that case or the respondent to the appeal, was entitled to a payment of $4000 being the after tax amount taxed as ordinary income in respect of a bonus that had not been paid prior to termination. Do you recall that case, your Honour? Sort of?

PN37

JUSTICE GIUDICE: Yes.

PN38

MR HARRINGTON: Well, what it involved is - and I appeared for the appellant on that case - it was simply an argument that because his Honour had determined it in that way and he used the language of contract, that it was a contractual entitlement, the failure to pay it had been a repudiation of the contract, the argument was upon determining that in his final decision and in making his orders Lacy SDP had effectively determined that the relevant employee, Ms Sawiris, had exceeded the jurisdictional cap or the rate of remuneration. Because if you grossed up the $4000 net it put her over. Your Honour, taking you to that decision, particularly at paragraph 14:

PN39

It is well established that to ascertain the rate of remuneration pursuant to s.170CBA(5)(b) it is necessary to look to the legal obligations of the employer pursuant to the contract of employment. In this case, the bonus not having been in fact paid, the question is whether BMS had a contractual or other legal liability to pay it.

PN40

And going over the page, your Honour, at paragraph 18 of the decision of BMS Entertainment:

PN41

It was common ground that in order for the bonus to be part of Ms Sawiris' remuneration there would need to be a legal obligation on BMS to pay her the bonus. Counsel for BMS suggested that a contractual liability arose because Mr Berman had promised to pay the bonus and Ms Sawiris performed work under the contract by way of consideration. We can find nothing in the evidence to support such a proposition. It is clear that the bonus was not part of the written contract of employment.

PN42

And then the Full Bench goes on in that decision, your Honour. The submission in respect of the first ground for arguable case is that the tips or gratuities can not form part of the remuneration because there was no obligation on the employer to pay those tips or any amount to the employee by way of tips. Furthermore, your Honour, it was not a term of the contract between the employer and the employee that tips be paid and it follows it was not a contractually enforceable entitlement. At paragraph 71 of the decision Commissioner Eames determines because the appellant had some level of control over the tips in that the tips were deposited in a jar and that the coins and cash were turned into notes at the end of the night and handed back, the Commission ought to the receipt of same into account when assessing remuneration.

PN43

In my respectful submission, at least at this arguable cash stage, that is not the appropriate test. The test is not one of control in that sense, the question or the test is one of contractual right or entitlement. If anything the appellant employer was simply a bay lead at will, your Honour, in respect of the monies because at all times the monies passed from the stranger, the person at the club to the waiting staff as a recognition of their service levels. If the employer was in control of that money at any point in time it was simply a situation of barmen, your Honour.
Mr Barnier who appeared for the employer in the first instance hearing did take issue with the inclusion of times.

PN44

He said to Commissioner Eames it would be new law - and that’s at PN949 - if the Commission were to take the average quantum of tips into account as an aspect of remuneration. At page 4, your Honour, the second arguable case point is that the inclusion of superannuation in the calculation of remuneration under section 170CH(7)(c) was an error and, your Honour, the submission by the appellant here is not that superannuation can not form part of the remuneration because clearly it can, it’s an employee entitlement under statute that an employer is obliged to pay.

PN45

The submission that we make today on arguable case is that in the 12 month period preceding termination, a period in which the employee, Ms Savrimootoo, had worked on average one shift per week. the employee, Ms Savrimootoo, has not earned more than $450 gross per calendar month and therefore there was no obligation upon the employer to make any contribution to Ms Savrimootoo’s relevant or nominated superannuation trust fund. In fact, your Honour, the employer - the appellant today - had not made any such contributions because by law it was not required to do so.

PN46

JUSTICE GIUDICE: Was this dealt with?

PN47

MR HARRINGTON: In the decision?

PN48

JUSTICE GIUDICE: Well, I know it’s dealt with in one sense in the decision, but was it dealt with - - -

PN49

MR HARRINGTON: Yes. At transcript, your Honour - - -

PN50

JUSTICE GIUDICE: There’s no need to take me to it, but the things that you’re telling me now about the absence of any liability under the relevant superannuation guarantee, that was explained to the Commissioner?

PN51

MR HARRINGTON: Yes. Your Honour, at PN118 Ms Savrimootoo said she had received superannuation, and I think that’s true of earlier times. She worked for two and a half years, but in the last year of her employment she’d only worked a shift a week on average. So that was the evidence. It was put very generally that she had received it from the past. Mr Barnier at PN956 of the transcript made submissions at the conclusion of the evidence in respect to superannuation and he says the contract says she gets super if it applied. So the submission there was - that’s preceded, sorry your Honour, by PN954 when Mr Barnier said:

PN52

The super threshold, of course, is $450 a month.

PN53

And then he goes on to say what I just said, the contract says she gets superannuation if it applies.

PN54

JUSTICE GIUDICE: Yes.

PN55

MR HARRINGTON: Your Honour, in that respect might I just hand up to you a copy of Superannuation Guarantee (Administration) Act 1992 section 27, Salary or Wages: General Exclusions. Sub-section (2):

PN56

If an employer pays an employee less than $450 by way of salary or wages in a month the salary or wages so paid are not to be taken into account for the purpose of making a calculation in relation to the employer and employee under section 19.

PN57

I'll hand that section up. There’s also an extract from section (6) which defines month as calendar month and then there’s an extract from the ATO superannuation website as well there, your Honour.

PN58

JUSTICE GIUDICE: Thank you. Was that before the Commissioner?

PN59

MR HARRINGTON: The section was not specifically before the Commissioner, but the submission at large was made.

PN60

JUSTICE GIUDICE: Yes.

PN61

MR HARRINGTON: Finally, your Honour, the third point in respect of the third submission in respect of arguable case, goes to the fact of jurisdiction itself in that the appellant will contend on appeal that there was no termination at the initiative of the employer. So it will be put that the jurisdictional fact or facts were not established to support such a finding. In summary, your Honour, at paragraph 19 of Commissioner Eames decision dated 23 November 2005 there is part of a summary of the applicant’s case where Mr Campbell submitted and as recorded by Commissioner Eames:

PN62

Secondly, the assault on the Applicant by Mr Reeves, was conduct by the employer which caused the employment relationship to be terminated.

PN63

Your Honour, at paragraph 57 Commissioner Eames then determines:

PN64

In this case, I am satisfied that Mr Reeves, was a promoter and not the employer, or responsible on behalf of the Respondent in terminating the Applicant. However the applicant did not know that at the time.

PN65

Finally, your Honour, paragraph 59:

PN66

I am satisfied that the assault and the words “You’re fired” spoken by
Mr Reeves did constitute a termination.

PN67

Mr Reeves was the promoter on the night, not an employee of the company that is now before you as an appellant, your Honour, and it’s submitted that the Commissioner should have determined that there was no termination at the initiative of the employer in light of what I’ve taken you to, but also paragraph 17 of page 5 of the written submissions that I’ve handed up, your Honour, as a brief summary of the evidence that the appellant will rely upon. I won’t read all those out, your Honour. Perhaps you can read them.

PN68

But particularly at 17(b) the assault in the workplace by Reeves was not the final act which brought the contract of employment to end, in my submission, because there’s evidence that the respondent employee continued to work later that evening, was paid for such work, the managing director spoke with the respondent employee on the evening and apologised for the incident. Furthermore, and this is at paragraph 5 of the employer’s outline of argument tendered before Commissioner Eames:

PN69

The appellant at all times continued to treat the respondent as an ongoing employee in the period after 5 March 2005. The respondent was rostered on for further shifts and there was considerable correspondence between the parties.

PN70

There was also in evidence that the appellant operated other venues in other locations which Mr Reeves had no reason to attend and the respondent today was offered work at those other locations. In my respectful submission there was no finding of constructive dismissal on the evidence, although perhaps that’s implicit, your Honour. So, your Honour, those are the three submissions with respect to arguable case. On the question of leave it’s my submission that all those matters go particularly to the jurisdiction of the Commission and the matters raised on the appeal are of sufficient proper importance such that in the public interest leave should be granted.

PN71

Furthermore, in respect of the balance of convenience favouring the stay. it’s submitted of paragraph 20 of the written outline that the arguable case on error at a minimum with respect to calculation of compensation based on remuneration, that is strong and in respect of a stay as it pertains to the particular circumstances of Ms Savrimootoo in this case, Ms Savrimootoo on her own evidence is a non-resident studying in the country and one assumes on some form of student visa, although that wasn’t particularly in evidence. There is some risk of dissipation of funds. The respondent today on her own evidence at the time the evidence was given had worked very little since leaving the applicant’s employ.

PN72

That simply goes to her financial circumstances. If the appellant were to succeed on appeal, your Honour, it might have difficulty in recouping compensation paid to the respondent pursuant to the orders. At the last sentence, at paragraph 23, it’s simply unclear what the respondent’s future claims in terms of staying in this country are. Finally at paragraph 24, your Honour, the appellant is prepared to forgo the use of the money until such time as the appeal is determined. In that sense it will get no direct benefit. If a stay is granted and, your Honour, it might be appropriate for you to order that the relevant net funds be placed in an interest bearing or an interest earning bank account upon trust for the respondent until such time as the appeal is determined.

PN73

JUSTICE GIUDICE: Yes. When you say the net funds, what do you mean?

PN74

MR HARRINGTON: Well, after tax funds because that’s the benefit that the respondent would receive if she were to receive her monies now. It would be after tax amount. The Commission ordered on a gross basis.

PN75

JUSTICE GIUDICE: Yes, I see. Those amounts haven’t been ascertained?

PN76

MR HARRINGTON: No, but one would assume it’s an ETP issue of 31.5 per cent deduction, an eligible termination payment, your Honour.

PN77

JUSTICE GIUDICE: Is that regardless of the level of income?

PN78

MR HARRINGTON: Well, the ETP rate is regardless. The ETP rate is attracted by virtue of the nature of the payment, which is if it’s a payment upon termination - I mean, there might be an argument that it should be the standard tax rate attracted by the sum.

PN79

JUSTICE GIUDICE: I don’t know.

PN80

MR HARRINGTON: Unfortunately, your Honour, I’m not a tax lawyer, but for example with settlements they’re taxed as an ETP. My experience is - well, my experience might not be yours, your Honour - when Commission makes orders and amounts are paid I have some recollection that the ETP rate applies, but I could be wrong in that in at law it may not apply.

PN81

JUSTICE GIUDICE: Yes.

PN82

MR HARRINGTON: Those are the submissions, your Honour.

PN83

JUSTICE GIUDICE: Yes. Something that caught my eye. In this case of Sawiris there was a Mr Berman involved as well.

PN84

MR HARRINGTON: Yes.

PN85

JUSTICE GIUDICE: It’s not the same Mr Berman, is it?

PN86

MR HARRINGTON: I believe it is. It’s a different company, but the company Mr Berman - - -

PN87

JUSTICE GIUDICE: I’m sure nothing turns on that anyway.

PN88

MR HARRINGTON: No.

PN89

JUSTICE GIUDICE: All right. Ms Savrimootoo, is there anything that you want to explain in what Mr Harrington said about the case?

PN90

MS SAVRIMOOTOO: Yes, your Honour.

PN91

JUSTICE GIUDICE: Yes. You can remain where you’re standing, but which ever is more comfortable for you. If you’d like to use the lectern.

PN92

MS SAVRIMOOTOO: Okay. We’ll take it this way. Your Honour, I wish to oppose the stay application. The argument that I will put in favour of this again, it’s on the ground of arguable case and balance of convenience. For arguable case based on the three appeal points, the first appeal point is that there was a termination at the initiative of the employer. I gave evidence at the hearing of the facts of the matter and that evidence was uncontradicted. It was not contested. I was not cross examined on any of this. Mr Reeves who terminated me was not called to give evidence and both myself and another manager of the venue gave evidence that Mr Reeves was in fact a part owner of the business and that none of us were cross examined on that.

PN93

JUSTICE GIUDICE: Yes. Didn’t the Commissioner make a finding that
Mr Reeves was not the employer?

PN94

MR HARRINGTON: Your Honour, at paragraph 57.

PN95

JUSTICE GIUDICE: Yes.

PN96

MS SAVRIMOOTOO: So the other manager’s evidence can be found at PN246 of the transcript where he does say that Mr Berman was the new joint venture part owner of the Next Blue.

PN97

JUSTICE GIUDICE: Yes. That’s Mr?

PN98

MS SAVRIMOOTOO: Mark Karbonicek

PN99

JUSTICE GIUDICE: Yes, but he was speaking there about who? Mr Reeves or Mr Berman?

PN100

MS SAVRIMOOTOO: Mr Reeves.

PN101

JUSTICE GIUDICE: Mr Reeves, yes.

PN102

MS SAVRIMOOTOO: That’s right.

PN103

JUSTICE GIUDICE: Thank you. Yes, continue.

PN104

MS SAVRIMOOTOO: So I clearly wrote two letters to the company requesting answers and assurances and in both letters I clearly asked whether Mr Reeves had the power to terminate staff members and what would be placed to ensure my safety in the workplace and these concerns were never addressed and again this evidence is uncontested and that can be found in the transcript PN524 to PN541.

PN105

JUSTICE GIUDICE: But at that time, according to the Commissioner, you were told that you should go back to work, you should resume working.

PN106

MS SAVRIMOOTOO: I was told that there had been a misunderstanding.

PN107

JUSTICE GIUDICE: Yes. Didn’t that indicate to you that the company or the employer were saying that your employment had not been terminated?

PN108

MS SAVRIMOOTOO: Right. Like I said I wrote to them to clarify the situation and assess as to what was going to be put in place to ensure my safety because I do maintain that I was assaulted on that night. And it is said in the transcript that in the decision, point 54 of the decision of Commissioner Eames, he does say:

PN109

In the above circumstances I am persuaded by Mr Campbell submissions that the assault, combined with the lack of response from the Respondent, to assure the Applicant that the workplace was safe, meant that the Applicant could not be expected to continue working under those conditions.

PN110

JUSTICE GIUDICE: Yes.

PN111

MS SAVRIMOOTOO: So I guess I was referring to the pages in the transcript PN524 to PN541 where Elizabeth Anne Turner in fact acknowledges that she didn’t at any point respond to any of those questions.

PN112

JUSTICE GIUDICE: Yes.

PN113

MS SAVRIMOOTOO: The second appeal point concerns the question of tips. Our submission with regard to this is laid out in PN913 to PN917 and that includes the points of law that Mr Campbell used on the day.

PN114

JUSTICE GIUDICE: Yes.

PN115

MS SAVRIMOOTOO: There is evidence of a system for tips whereby the supervisor would count the tips and change them from coins into notes and there was evidence from two managers attesting to that fact. I gave evidence of the dollar amount for tips and that evidence was uncontested.

PN116

JUSTICE GIUDICE: Yes, thank you.

PN117

MS SAVRIMOOTOO: The third point of the appeal concerns superannuation. I gave evidence that superannuation was paid and I was not cross examined on that. It’s also worth mentioning that superannuation was in my employment contract.

PN118

JUSTICE GIUDICE: Well, Mr Harrington says that the contract provided that the superannuation, if it was payable - - -

PN119

MS SAVRIMOOTOO: I'll just retrieve it. From memory it doesn’t actually stress that.

PN120

JUSTICE GIUDICE: It doesn’t?

PN121

MS SAVRIMOOTOO: Okay.

PN122

The employer will make superannuation contributions at the rate prescribed under the Superannuation Guarantee Legislation, presently nine per cent of gross earning for all employees, into a complying fund post plus.

PN123

That’s all it says.

PN124

JUSTICE GIUDICE: Yes. Well, I suppose Mr Harrington’s point is that if a reference to the legislation is a relevant aspect from his point of view, that it was no legal requirement then. It wasn’t intended that the superannuation would be paid. But in any event, I see the point quite clearly that there’s an argument about that.

PN125

MS SAVRIMOOTOO: No other witnesses gave evidence on the payment of superannuation.

PN126

JUSTICE GIUDICE: Yes.

PN127

MS SAVRIMOOTOO: It’s also worth noting that the total amount of superannuation referred to in this case is less than $250. So our position is that there may be an issue in applying the public interest test on leave to appeal.

PN128

JUSTICE GIUDICE: On that issue?

PN129

MS SAVRIMOOTOO: Because it is such a small amount.

PN130

JUSTICE GIUDICE: Yes.

PN131

MS SAVRIMOOTOO: So we contend that the appeal point as mentioned above, a week, your Honour, and that much of the evidence was uncontested. But another issue that I would like to address is the balance of convenience.

PN132

JUSTICE GIUDICE: Yes.

PN133

MS SAVRIMOOTOO: I understand that if the stay is not granted the money will need to be paid back in part or in full and I wish to state that I am in a position to do so and I will pay it back if need be. But I also need to say that, your Honour, if you’re not with me on this point I would be prepared to compromise whereby I would accept that the funds be paid in trust into my solicitor’s account and that it not be moved without an order of the Commission or an agreement between the parties.

PN134

JUSTICE GIUDICE: Yes. Have you discussed that with Mr Harrington at all?

PN135

MS SAVRIMOOTOO: That’s the worst case scenario.

PN136

JUSTICE GIUDICE: Yes. All right.

PN137

MS SAVRIMOOTOO: And I also wish to state that the funds had not been paid within the 21 days. So the applicant is in breach of the order as we speak.

PN138

JUSTICE GIUDICE: Yes.

PN139

MS SAVRIMOOTOO: And I also wish to say that the appeal was lodged late, indeed at the eleventh hour and I am of the understanding that the Commission can take this into consideration.

PN140

JUSTICE GIUDICE: Yes.

PN141

MS SAVRIMOOTOO: I also understood that your Honour can exert his discretion about stays and in this case it is my respected submission that it not be granted.

PN142

JUSTICE GIUDICE: Yes. Thank you, Ms Savrimootoo. A very clear and well prepared submission. Mr Harrington, anything in reply?

PN143

MR HARRINGTON: Your Honour, I’d seek to want to refer to the fact that the payment of superannuation issue, I made reference to the fact that the applicant gave evidence that she had received superannuation and the evidence of the appellant today is that none was paid and that is the case because in evidence before the Commission as a part of Ms Savrimootoo’s own statement at exhibit SS8 is fairly illegible, unfortunately, breakdown of payments over the last period of time and there’s no superannuation contributions recorded there. That’s the only matter I wish to raise in reply, your Honour, unless there’s something you wish to raise with me.

PN144

JUSTICE GIUDICE: No thank you, Mr Harrington. Thank you both for your submissions. I have reached the view that there is a sufficiently arguable case on the question of whether or not in the matter before the Commission a termination of employment at the initiative of the employer. This is a matter of some legal complexity which has not been comprehensively dealt with by a full bench. Having said that the cases in which it’s alleged that there has been a termination of employment at the initiative of the employer constituted by a constructive dismissal all tell on their own facts.

PN145

The Commission has made a number of findings in this case to which
Mr Harrington referred, particularly at paragraphs 57 and 60. The question is whether those findings of fact are correct. Secondly, even if they are insofar as the findings constituted findings of the legal effect of what occurred in this case there is some doubt, on my view, as to the correctness of the decision. Whether or not there’s a termination at the initiative of the employer in any case is obviously a foundational jurisdictional question. In light of that conclusion I don’t intend to deal in this hearing with the further submissions that there is a sufficiently arguable case on other basis, particularly the inclusion of tips and gratuities and an amount in relation to superannuation included in the amount awarded by the
Commissioner.

PN146

That brings me to the balance of convenience. Taking submissions of both parties into account it seems to me in this case the appropriate course is that the monies be paid into an interest bearing account net of tax as suggested by Mr Harrington and that that account be in the nature of a trust account. I’m going to adjourn for a few moments to enable the parties to talk about exactly what that account should be. I don’t anticipate any problem.

PN147

MR HARRINGTON: Your Honour, I must just indicate from the outset that I have spoken with my instructing solicitor about this and he is a sole practitioner who doesn’t actually operate a trust account. So that’s one that I wish to place before the Commission, so I have less bargaining power, if you like, than I would normally have. And that leaves either my clerk’s trust account as one option or an account that my client could establish or set up a bank account, if you like, and hold the monies on trust in that way or the other alternative as raised by
Ms Savrimootoo which is her solicitor’s trust account, which I must say I’m not disposed to do that. I think that creates other issues of complexity, your Honour. Potentially that is. But I just wanted to bring those matters to your attention.

PN148

JUSTICE GIUDICE: Well, I think you should try and sort this out yourselves. I mean, it’s a fairly small point, but a significant one. I'll adjourn and enable you to have some discussion about it. So in conclusion I'll just indicate that I do think there is a sufficiently arguable case that leave would be granted to appeal and the appeal would be successful on the question of whether or not there was in this case a termination at the initiative of the employer. I think the balance of convenience does favour a stay of the application, but I’d only grant the stay on the condition I’ve indicated. I will adjourn until 11 o'clock and then consider further the account into which the monies should be paid pending the determination of the appeal. Do you have any questions, Ms Savrimootoo?

PN149

MS SAVRIMOOTOO: No, not really.

PN150

JUSTICE GIUDICE: Yes, good. All right, I'll adjourn now until 11 o'clock.

<SHORT ADJOURNMENT [10.50AM]
<RESUMED [11.04AM]

PN151

JUSTICE GIUDICE: Yes. How did we get on, Mr Harrington?

PN152

MR HARRINGTON: We didn’t reach an agreement, your Honour. The situation is this. Ms Savrimootoo would like it placed in her solicitor’s trust fund. My client would prefer to set up an account, place it in that bank account and provide evidence of that by way of letter. The alternative path or another way of moving forward as I suggested, it can be placed in my clerk’s trust fund subject to order of the Commission, of course. So those are the three positions, your Honour, and ultimately we’re in your hands on how you would like it to proceed.

PN153

JUSTICE GIUDICE: Look, I think in the circumstances the most neutral location for the funds would be your clerk’s trust account, Mr Harrington. The clerk obviously has no interest in the proceedings and I think his trust account is to that extent neutral ground and it’s probably the best way to resolve this.

PN154

MR HARRINGTON: He’ll get a shock getting any monies on trust in relation to my name, your Honour, but anyway.

PN155

JUSTICE GIUDICE: Now, your clerk is whom?

PN156

MR HARRINGTON: Foley’s, care of Foley’s List 205 William Street.

PN157

JUSTICE GIUDICE: Yes.

PN158

MR HARRINGTON: I’m not sure, your Honour, whether it’s - I don’t know how you’re going to formulate your order, but it may have to be pursuant to my - I mean, obviously it’s in trust for Ms Savrimootoo, but it may have to make some reference to me as well to make it clear. It’s a matter for you, your Honour, but for my clerk’s purposes I suspect, though, if they receive money from me, so to speak, it will have some link to my name, but I can obviously prepare a memorandum and make it clear how it’s being held.

PN159

JUSTICE GIUDICE: Yes. The order I'll make is that upon the appellant undertaking through its counsel to pay to barrister’s clerk Foley the amount to which the respondent would be entitled pursuant to the order made by Commissioner Eames on 23 November 2005, such amount to be paid into an interest bearing trust account. I order that the order made by Commissioner Eames on 23 November 2005 be stayed pending the determination of this appeal. Mr Harrington, I wonder if you’d be - I withdraw that.

PN160

MR HARRINGTON: Sorry, your Honour?

PN161

JUSTICE GIUDICE: I was going to make a suggestion which I’ve withdrawn. I'll make the order in those terms. Will you ensure that you furnish
Ms Savrimootoo with evidence of the amounts being paid?

PN162

MR HARRINGTON: I'll get my solicitor to do that. You haven’t put a time frame for payment in. It probably won’t happen today because I’m going to have to tell my solicitor to get - - -

PN163

JUSTICE GIUDICE: It’s based on the undertaking that can be done. The order will be issued, but of course if the payment isn’t made then Ms Savrimootoo would complain loudly and she’s got liberty to come back to the Commission if that doesn’t occur.

PN164

MR HARRINGTON: Obviously, it will occur before Christmas, it will happen the next few days.

PN165

JUSTICE GIUDICE: Well, I’d expect it to occur on Monday really. I wouldn’t see any reason why it would need to be delayed, would you?

PN166

MR HARRINGTON: No, simply that I’ve got to contact my solicitor and have to contact my client who has to get a cheque to me then has to go into the bank account.

PN167

JUSTICE GIUDICE: Of course. Very well. You understand that,
Ms Savrimootoo?

PN168

MS SAVRIMOOTOO: I do.

PN169

JUSTICE GIUDICE: Yes, good. All right, thank you both for your assistance and I shall adjourn.

<ADJOURNED INDEFINITELY [11.10AM]