C2005/2396, Transcript of Proceedings [2005] AIRCTrans 992 (26 April 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11259-1

COMMISSIONER BLAIR

C2005/2396

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
SILCRAFT PTY LTD
s.99 - Notification of an industrial dispute
(C2005/2396)

MELBOURNE

9.35AM, THURSDAY, 14 APRIL 2005

Continued from 13/4/2005

PN595

THE COMMISSIONER: Good morning all, on this miserable morning. Mr Bourke.

PN596

MR BOURKE: Thank you, sir. Just a couple of matters if I could raise. Firstly, we understand that Linda I is no longer a witness.

PN597

THE COMMISSIONER: Right.

PN598

MR BOURKE: So we would ask for her statements to be removed from exhibit AMWU1

PN599

THE COMMISSIONER: Yes.

PN600

MR BOURKE: We have no objection to Mr Pinero's statement going in as part of AMWU1, and he being called as a witness, as long as it's not this week.

PN601

THE COMMISSIONER: Right.

PN602

MR BOURKE: And we have the right to file supplementary material in relation to that statement, which we will do late next week.

PN603

THE COMMISSIONER: That's fine.

PN604

MR BOURKE: We hope to do that by the end of the day next Thursday. In relation to - we could just raise something in relation to the speed of the case - - -

PN605

THE COMMISSIONER: Are we going too fast?

PN606

MR BOURKE: Yes. You know, wipe off time is always a good option. We all are concerned about health and safety. You'll recall that at the outset, I indicated that there was no objection to witnesses just adopting their witness statement.

PN607

THE COMMISSIONER: Yes.

PN608

MR BOURKE: What we felt we saw was a going over with the witness of what was in the witness statement. A lot of the matters were then raised which were matters that we would have put in cross-examination of Mr Trinh.

PN609

THE COMMISSIONER: Right.

PN610

MR BOURKE: And it's sort of been doubling up. And it's our view that we would now ask for a direction because if this exercise of people being taken to a paragraph, then asked to talk about it again, is done with every witness, it is going to double the time.

PN611

THE COMMISSIONER: Right.

PN612

MR BOURKE: And in a sense, we will then have to do the same exercise to sort of balance out the forensic exercise. What we're really wanting then is a direction that witnesses will have their evidence confined to their statement, they will adopt that, and that they be allowed to lead - the evidence-in-chief be allowed to be led as to any new matter that's arisen and, I think which would be of assistance to you, that witnesses that were involved or witnessed the events of 24 February - I'm talking about the incident - - -

PN613

THE COMMISSIONER: Yes.

PN614

MR BOURKE: - - - rather than the interviews also be allowed to give that evidence-in-chief. We see that could save a week. For example, if I have to go through all the topics in-chief of my witnesses, that's four or five days, and Mr Addison, you're talking another two or three days in-chief as well for their witnesses. So that's the proposal. I mean, in a perfect world, you'd hear everything in-chief, everything in cross-examination. There must reach a point where the cost benefits have to be taken into account. So that's the direction that we seek.

PN615

THE COMMISSIONER: Okay. Thank you. Mr Addison?

PN616

MR ADDISON: Thanks, Commissioner. Commissioner, I assume Mr Bourke can't keep up because the speed's too quick. But, putting that aside, the position that Mr Bourke's put, I don't agree with. What's being put to the witness in-chief is not his witness statement. It's issues that arise from the witness statements of my friend's witnesses. They're all obliged to do that so that my witnesses have an opportunity to respond to what is being put against them, first up; and secondly, as a matter of fairness, I need to put to my witnesses the allegations and the specifics that are put by my friend's witnesses prior to crossing my friend's witnesses. Otherwise it's not fair to my friend's witnesses.

PN617

Now, I've seen my friend on his feet, if I put a proposition to Mr Hunter or to Ms Gilmore, that I haven't first put through my witnesses, I can just see my friend on his feet now, objecting on the basis of fairness, that these propositions have not been put to my witnesses, therefore they cannot be a matter of cross. And that's happened numerous times in this Commission. And I'm doing nothing more than the normal process of taking my witness through the propositions that are put against my witness. Now, I accept that the speed has been anything but lightening quick, and maybe that's because I'm not that skilled at dealing with interpreters, and the interpreter has caused some slowing down of the process - and that's not a criticism of the interpreter either, I hasten to add. It's just a function of what occurs when you're in this position. So, I can only apologise for that but it's my view, as a matter of fairness, that's needs to be done. If the Commissioner pleases.

PN618

THE COMMISSIONER: One of the difficulties I saw with yesterday was that we appear to be going through Mr Trinh's statement, and it was only in the latter part of the day that we then started to deal with what Mr Hunter says in his statement. So, we seem to be doubling up on having the statement, adopting it, and then you going directly to questioning what Mr Hunter is going to say in respect of certain aspects of Mr Trinh's statement. But that's not the way it panned out. The way it panned out was Mr Trinh appeared to be going through everything in his statement, verifying everything in his statement again - and in some instances he didn't recognise that he'd actually said certain things - and then it was the latter part of the day we got on to Mr Hunter. If we could adopt the statements, and then if you want to question in-chief matters that arise out of the respondent's statements, I'm happy with that.

PN619

MR ADDISON: Commissioner, I think - what I tended to do yesterday - and maybe I did it badly, I don't know - but my recollection of yesterday is that the first part of the day was taken up with the respondent's documents. They were the documents which they had at tabs 5, 6, 7, 8, 9, I think, of the respondent's documents which were the written warnings and the counsellor sessions. Now that took up a considerable amount of time. That's not the material that's dealt with in Mr Trinh's statement, because Mr Trinh's statement deals with the events of 24 February and a little bit of the lead up and a little bit of - in terms of the process that followed that. So it doesn't deal with those matters. They're new matters that the employer puts and the first part of my cross-examination dealt with those documents, if you recall.

PN620

THE COMMISSIONER: Yes.

PN621

MR ADDISON: And we stepped through them quite in depth. Because my friend in his opening, takes issue, particularly with the supposed and alleged incident with Mr Gueterrez, or Mr Cortez, I think it is, back in 2000. That needed to be dealt with, had to be dealt with, Commissioner. Particularly given my friend's opening, it had to be dealt with. So I stepped my witness through those. The next part of the day which was after lunch, I took my witness to paragraphs 6 and 7 of his statement. It was the only time I dealt with my witness's statement. And that's where the confusion arose as to whether he'd actually said that or not, and you'd recall, Commissioner, I put to you that Ms Chew had done the translation, and while she was a qualified lawyer, she wasn't a qualified translator.

PN622

THE COMMISSIONER: We've made arrangements for security to remove her at some point.

PN623

MR ADDISON: Indeed, indeed. And then, Commissioner, I moved on to 24 February. And what I did on 24 February and in terms of chief, I pointed my witness to the inconsistencies between his statement and Mr Hunter's statement. I think that's where we left it last night. Now, I accept that speed has not been great in this, but that's what I attempted to do yesterday. That's what I thought I'd done yesterday. I'm happy to continue down that vein. I think we've got 24 February to deal with and then processing following. And, I will be as speedy as I can in the circumstances. That's the best I can say, Commissioner. If you want to rule that I confine myself somewhat narrower than that, then obviously I'm in your hands.

PN624

THE COMMISSIONER: Right. Thank you. Mr Bourke?

PN625

MR BOURKE: Sir, I really didn't want to get into the rights and wrongs of what Mr Addison did yesterday. What my point was, is that if we're governed by a direction as to how we conduct ourselves then there can be no criticism. And my point was that, for example, Mr Addison saying that I would complain if matters weren't put to their own witnesses and are then put to ours. I won't complain. We'd be operating pursuant to the direction so we say that, weighing up the costs and investing an enormous amount of time, et cetera, et cetera, involved in the approach currently being taken, as against an approach where we are obliged to put any other matters to the witnesses, Mr Addison will have the opportunity in re-examination to deal with them.

PN626

We see that as the most convenient way of confining the case, unless a discrete matter arises during the running of the case that they can then allow their witnesses to express a view on chief, and that the crunch point in relation to 24 February you hear first hand in-chief those witnesses. So, we do press for that direction. We won't - I'm not saying that Mr Addison did anything wrong or whatever, I'm just saying that if we have this direction, we won't have this problem. We won't be criticising Mr Addison in relation to fairness or whatever.

PN627

Can I also just say something about the interpreter? I don't want to criticise the interpreter, but it was a concern to me yesterday that there was very little - often you'll see an interpreter, Commissioner, simultaneously translate, so as the question is being asked, the interpreter will be very close to the witness and be simultaneously - - -

PN628

THE COMMISSIONER: Yes.

PN629

MR BOURKE: - - - translating the question and then simultaneously translating the answer. But what I saw yesterday was essentially, often after a very long question is being asked, we had to cross our fingers that the interpreter then translated that question. And I would ask possibly that a direction be made that, as best as possible, the interpreter attempt to interpret as the questions are being asked and as the answers are being given. And I think that also might assist in speeding up the process.

PN630

THE COMMISSIONER: Right. Mr Addison?

PN631

MR ADDISON: Can you just direct, the salient points that's been put. I mean, if my friend is saying that he withdraws his reliance upon previous disciplinary matters, he withdraws his reliance upon the documents behind tabs 5, 6, 7 and 8, then I'll deal with 24 February as the only issue. But my friend's not saying that. What my friend's trying to do is narrow me down to 24 February and narrow my witnesses down to 24 February and only deal with 24 February, and leaving the other matters silent. Well, that's highly, highly unusual and highly unfair, in my submission. If my friend wants to remove his reliance and my friend wants to say he no longer relies on those other documents, then I'm happy to deal only with 24 February.

PN632

But my friend can't put a raft of material before me, which he's done. I mean, the notes themselves go to some 31 documents. My friend can't put 31 documents to me and say - and then complain about the time it takes to deal with the 31 documents. I mean, you can't have it both ways, Commissioner. My friend wants to have his cake and eat it. And he can't. He either says, well, I remove those documents, they're not part of the case any more, you don't have to deal with them, which will certainly speed things up, or he says they're there, and I then I must deal with them. I've got no choice but to deal with them, Commissioner. And I'm sorry for the time this is going to take. That's why we attempted to try and resolve this thing yesterday. It is going to take a lengthy period of time. I put that to the Commission yesterday. I'm caught between two stools, Commissioner. I've got nowhere to go. If the Commission pleases.

PN633

THE COMMISSIONER: Can we deal with it this way? Mr Bourke, if you could provide what you seek by way of directions in writing, so I could have a look at it?

PN634

MR BOURKE: Yes.

PN635

THE COMMISSIONER: It might be that those directions may apply to other witnesses.

PN636

MR BOURKE: Yes.

PN637

THE COMMISSIONER: But I think, in regards to Mr Trinh, and to Mr Hunter in particular - - -

PN638

MR BOURKE: Yes.

PN639

THE COMMISSIONER: - - - I think we need - and possibly Ms Gilmore - - -

PN640

MR BOURKE: Yes.

PN641

THE COMMISSIONER: - - - we need to be, I think, as flexible as possible.

PN642

MR BOURKE: Yes.

PN643

THE COMMISSIONER: But we may be able to narrow the other witnesses.

PN644

MR BOURKE: Yes, thank you.

PN645

THE COMMISSIONER: If that's of some assistance.

PN646

MR BOURKE: Yes. I'll do that over lunch, sir.

PN647

THE COMMISSIONER: Okay. Thank you. Mr Interpreter - - -

PN648

THE INTERPRETER: Can I say something for myself?

PN649

THE COMMISSIONER: Yes, can you - you've heard what Mr Bourke has said, and it's not a criticism but - is that possible?

PN650

THE INTERPRETER: That is not possible. That is what I was going to say, because, I mean, if Mr Bourke has used the interpreters, he should be able to know that that is not - that is actually an impossible situation. You can't do a simultaneous translation in this situation. If you understand how the Chinese and English works, sometimes they work backwards.

PN651

THE COMMISSIONER: Right.

PN652

THE INTERPRETER: You have to wait until the whole sentence is completed. So when an interpreter is used, the time has to be doubled up. I can try to interpret as fast as I can, but I can't do a simultaneous translation or interpretation, unless you engage simultaneous interpreter for the purpose. I've been through many cases like this and this is the only time where I'm asked to give - render a simultaneous interpretation.

PN653

THE COMMISSIONER: Right.

PN654

THE INTERPRETER: And I think that will slow down the process even more, because if I do that, I doubt that the witness would be able to understand what I'm saying.

PN655

THE COMMISSIONER: Okay. Well, I accept what you say. I mean, I think - - -

PN656

THE INTERPRETER: I can only try my best by doing as fast as I can.

PN657

THE COMMISSIONER: Sure. I've got to say, as an observation yesterday, I think one of the difficulties was that either Mr Trinh didn't understand the question that was put to him. He kept going back over the same answer relating to something else, or he deliberately was evasive.

PN658

MR ADDISON: As I said yesterday, I think your first observation is correct, that Mr Trinh did not understand some of the questions put. And that's probably a deficiency on my part, Commissioner.

PN659

THE COMMISSIONER: It's that accent you've got.

PN660

MR ADDISON: Mr Bourke and I had a bit of a giggle about that this morning too, Commissioner. I speak English, but I only do it badly.

PN661

THE COMMISSIONER: The problem is you don't speak Australian. That's your problem.

PN662

MR ADDISON: That's half the problem, Commissioner. I've said for years that I speak in English but everybody around me listens in Australian. It's a real problem. So all I can do is my best, Commissioner. Mr Trinh - well, there'll be submissions with regard to those two points you put, Commissioner. I think we can guess what my submissions are at this point in time.

PN663

THE COMMISSIONER: Okay, all right. Well, let's press on as best we can. In regards to - is it Siu Fa Li that will not be giving - - -

PN664

MR ADDISON: Sorry, would you say that name again?

PN665

THE COMMISSIONER: I hope I said it right. Ms Siu Fa Li.

PN666

MR ADDISON: Yes, she is - well, she's withdrawn and Ms Linda I, I can confirm, has also withdrawn from the proceedings. Both are uncomfortable with the process. Well, I think that's wrong. Both are probably cowered by the process, rather than anything else. And as I understand from Mr Bourke, Miguel Pinero's statement Mr Bourke has no objections to, but reserves his right to respond to that early next week I guess.

PN667

MR BOURKE: Thursday.

PN668

MR ADDISON: Thursday next week.

PN669

THE COMMISSIONER: Okay, and Linda I is not giving evidence as well?

PN670

MR ADDISON: Correct, Commissioner.

PN671

THE COMMISSIONER: Both statements?

PN672

MR ADDISON: So both those statements can be withdrawn from the record.

PN673

THE COMMISSIONER: Yes. And that has been done so. Right.

PN674

MR ADDISON: Thanks, Commissioner. Yes, Ms Chew has just assisted me. In terms of the diary proposition that Mr Bourke put last night, I'm instructed that my diary is free between 26 and 29 April. So I think you had some - I think - yes - Mr Bourke's free as well. Not on those dates?

PN675

THE COMMISSIONER: And the unfair dismissal matter that I had on the 26th has now been asked to be put to another day, so that frees up all those four days.

PN676

MR ADDISON: So should we lock those four days in, Commissioner?

PN677

THE COMMISSIONER: I'm happy to do that at this point.

PN678

MR ADDISON: Good.

PN679

THE INTERPRETER: Can I just add something to the accent?

PN680

THE COMMISSIONER: To the whole problem.

PN681

THE INTERPRETER: Yes, to the accent.

PN682

THE COMMISSIONER: To the accent?

PN683

THE INTERPRETER: Of Mandarin, because we speak Mandarin Chinese.

PN684

THE COMMISSIONER: Right.

PN685

THE INTERPRETER: Here, Mr Trinh, I understand, is originally from Vietnam, so he is speaking Mandarin as a Vietnamese Chinese. I come from mainland China. I speak Chinese as well, but my Chinese sometimes - - -

PN686

THE COMMISSIONER: Yours is Chinese Chinese, and his is Vietnamese Chinese.

PN687

THE INTERPRETER: I'm pure Chinese, and he is a Vietnamese Chinese, if I can put it that way. So when I speak Chinese, he sometimes does have a little bit of difficulty understanding the expressions - - -

PN688

THE COMMISSIONER: Yes.

PN689

THE INTERPRETER: - - - I use. As I understand, in the factory, the interpreter, or the factory worker he used - - -

PN690

THE COMMISSIONER: Mr Trinh?

PN691

THE INTERPRETER: - - - was actually speaking to him in Vietnamese. They communicated with each other in Vietnamese, not in Chinese.

PN692

THE COMMISSIONER: Okay.

PN693

THE INTERPRETER: So he can speak Vietnamese and Chinese, the Vietnamese variety of Chinese.

PN694

THE COMMISSIONER: It's the same as a Queenslander talking to the rest of Australia, I suppose?

PN695

THE INTERPRETER: Wider. Two hundred times.

PN696

THE COMMISSIONER: Same thing.

PN697

MR ADDISON: I was going to say Newcastle English as opposed to Melbourne English.

PN698

THE COMMISSIONER: All right. Thank you, Mr Addison.

PN699

MR ADDISON: Thanks, Commissioner.

<DE TRINH, RECALLED ON FORMER OATH [9.55AM]
<EXAMINATION-IN-CHIEF BY MR ADDISON, CONTINUING

PN700

MR ADDISON: Now, Mr Trinh, when we left yesterday, we were talking about 24 February and I think we got to the point where you had spoken initially to Mr Hunter and then gone back to your workstation?---Well, he didn't answer, he just went back.

PN701

Yes, he went back to his workstation. Mr Hunter says that he went to check some trolleys, that the trolleys were about 10 metres away from your workstation. When he was checking the trolleys, you called out to him and you said, hey, hey and called him over to you, to your workstation. Is that true?---No.

PN702

Can you tell the Commission how Mr Hunter came to be in your workstation?--- I went to toilet and I came out of the door of the toilet. And I saw Mr Hunter and Aaron standing at end of the - on the same row that led to the toilet. I went up to him, as I came out, then he said to me, did you go to toilet? You have to tell Leanne or me. I did not make a response to that. I went back to my workstation. Several minutes later, he came - he came again to my workstation and said, you have to tell next time the leading hand or me if you go to toilet. Then I quarrelled with him. He did not go to trolley part because he not have time to go to another place when he's ..... How could be possibly have found other time to go to check other things? That's how it all happened.

PN703

Okay. So do you say Mr Hunter came to your workplace without you asking him to?---No.

PN704

Sorry?---No, I didn't. I didn't call out to him.

PN705

Okay. Now, Mr Hunter says that when he got to your workplace, you attacked him. Is that correct?---No. I abused him, yes. Then he got very close to me, then I pushed him aside.

PN706

I think you're missing the words said. Let me step through this. Mr Hunter says, you called me to your workplace. You say you didn't?---No, I didn't call him to.

PN707

Mr Hunter says when he got into his workplace, you said to him, I go to the toilet. Did you say that?---No I didn't.

PN708

Okay. He says, I can't find - he says you said to him, I can't you or Peter. Who do I fucking tell? Is that correct or not?---No, I didn't.

**** DE TRINH XN MR ADDISON
PN709

MR ADDISON: You have to translate that?

PN710

THE INTERPRETER: Yes. I said that because in those words, did he say that. So I just said those few words, because he had limited English himself.

PN711

MR ADDISON: Okay. Mr Hunter will say that while you were saying those words to him, you were being aggressive, that you were aggressively pointing your finger at Mr Hunter and that you were moving closer towards him in a way that your finger was moving back and forth and pointing at him and that your finger was only a few inches from his face. Is that correct?---I did not - I did not point to him. I pointed to myself.

PN712

Okay. Why were you pointing to yourself?---I said, were you looking for me? Like that, pointing to my head, or were you troubling or making trouble for me?

PN713

Okay. Now, Mr Hunter will then say that after this incident - - -

PN714

THE COMMISSIONER: I'm sorry. I'm not quite sure - did he say that he actually swore at Mr Hunter?

PN715

MR ADDISON: No, he said that's not correct, is my understanding of the evidence. He said he quarrelled with Mr Hunter.

PN716

THE COMMISSIONER: What was the quarrel - what does he define as a quarrel?

PN717

MR ADDISON: Well, I haven't got there yet.

PN718

THE COMMISSIONER: Okay.

PN719

MR ADDISON: I'm just working through Hunter's propositions.

PN720

THE COMMISSIONER: Right.

PN721

MR ADDISON: So, I'm just trying to work through a bit at a time. Mr Hunter will then say that he was concerned that you were going to get physical and that he was moving slightly back from you and he was clearly apprehensive. Is that - do you recall that?---I said to him as I pointed to my own face, were you making trouble for me? Then he came up - or he left - then he left. He moved, he moved off.

**** DE TRINH XN MR ADDISON
PN722

He moved off?---He left and went to make a phone call.

PN723

Right. Mr Hunter says he didn't. Mr Hunter says - Mr Hunter will say that following these incidences that you shoved him, you struck him in the chest just below his right shoulder. Is that correct?---No, I didn't.

PN724

Okay. He will say that the push that you gave to him was strong and vigorous?
---No.

PN725

He will say it was that strong that due to the impact, he lost his balance and slightly moved backwards before he regained his footing?---No.

PN726

And then he will say that he said to you De, please don't touch me?

PN727

THE INTERPRETER: I don't know what he said but he mixed English with Chinese. I don't understand that little bit. It sounded like dung cha, so I don't understand that.

PN728

THE COMMISSIONER: Don't touch.

PN729

THE INTERPRETER: Don't touch, yes, he said - he meant to say don't touch but something else came out. Well, don't touch. All right. Okay. He said, don't touch him.

PN730

THE COMMISSIONER: Ms Chew, you come up and sit on the bench with me and you can interpret.

PN731

MS CHEW: I can interpret his Vietnamese English.

PN732

THE COMMISSIONER: Can you?

PN733

THE INTERPRETER: Don't touch, yes. I don't understand that.

PN734

MR ADDISON: Well, Commissioner, if he breaks into Scots or Jordie I'll have a chance.

PN735

Okay. You disagree with almost everything I've just said there that Mr Hunter will say?---Yes, I agree.

**** DE TRINH XN MR ADDISON
PN736

Now, can you tell the Commission in your own words what you say happened after Mr Hunter came into your workplace?---From the very beginning or - - -

PN737

From when Mr Hunter came into his workplace, after the toilet incident?---After I came back from the toilet, he came to my workstation and told me several minutes later - I mean, several minutes later he came to my workstation and he told me, next time when you go to toilet you have to tell Peter or me - that's him. Then I swore at him because I knew that he would make trouble for me when things happen. So I abused him. That's it.

PN738

When you say you swore at him, what did you say to him?---(Direct) Fuck up. Fuck off.

PN739

THE INTERPRETER: He said that.

PN740

THE COMMISSIONER: Well, you'd better say it for the transcript?---(Through interpreter) Fuck up. Fuck off.

PN741

THE COMMISSIONER: Yes. It's a term that I'm familiar with.

PN742

THE INTERPRETER: Yes. Fuck off meaning to go away.

PN743

MR ADDISON: Get out, go away.

PN744

THE COMMISSIONER: I understand.

PN745

THE INTERPRETER: He explained in Chinese what that meant.

PN746

MR ADDISON: Okay. So Mr Hunter came to you, Mr Hunter told you that in future you have to tell him or the leading hand and you told him to fuck off, yes?
---Right.

PN747

Then what happened after that?---Then he moved away.

PN748

Why did he say to you, don't touch?---When I - when I swore at him, he got very close to me.

PN749

Right?---And I pushed at him and he said, don't touch. And he said don't touch.

**** DE TRINH XN MR ADDISON
PN750

How hard did you push him away?---Just like that, to get him off me.

PN751

Okay. Can we do the demonstration again?

PN752

THE COMMISSIONER: What he's saying is different to what he said a few minutes ago.

PN753

MR ADDISON: I know. I know, Commissioner. I think the evidence - the evidence is that - and it's in his witness statement, Commissioner. I don't think the evidence has been - I don't think the witness was being abusive. The witness is having some difficulties understanding what's being put to him. Or he's not listening.

PN754

THE COMMISSIONER: Well, I understand that might be your submission but - and I understand where there might be a slight interpretation of the actual event. But what was said a few minutes ago was very clearly - very clearly - something different to what he is saying now. He said that Mr Hunter turned around and walked off and made a phone call and he never touched him.

PN755

MR ADDISON: Yes. I think if you go into the witness's witness statement, Commissioner, would that - maybe the witness ought to step out while we do this but - for fairness sake. I don't know. If you go to paragraph 15 of the witness's witness statement, what he's said is consistent with his witness statement, not the first bit, the second bit - the second time rather. He says in paragraph 15:

PN756

I felt very frustrated and I told him to fuck off. He then came and stood very close to me and looked threatening and angry. Maybe he did this because he wanted to scare and intimidate me. He is much taller than me but more broadly built. He came very close. I pushed him with my right hand. I did this without thinking because he came too near to me.

PN757

That's what the - that's what we see in the witness statement.

PN758

THE COMMISSIONER: I understand that's what is in his statement and I understand that's what's he's trying to say now.

PN759

MR ADDISON: Yes.

PN760

THE COMMISSIONER: But that's not what he said a few minutes earlier. He was very clear in that he never touched Mr Hunter. Mr Hunter turned around, walked off and made a phone call. That's what he said.

**** DE TRINH XN MR ADDISON
PN761

MR ADDISON: If you carry on in the witness statement, and on that matter, Commissioner, I can only go on what's presented here too. I mean, you can tell that I haven't coached this witness. He says:

I didn't push him very hard. He saw my hand come and moved a little backwards. He then said, don't touch. I said, okay, okay. He then walked away and I saw him go and pick up the phone.

PN762

Now, I suggest to you, Commissioner, that what he's put is not necessarily - it's disjointed but it's not inconsistent, if I can put it in that way. The witness is being disjointed.

PN763

THE COMMISSIONER: Well, to the extent where he did make mention of going to make a phone call, but he was very clear that he says he didn't touch Mr Hunter.

PN764

MR ADDISON: His original answer to me - - -

PN765

THE COMMISSIONER: Yes, and - - -

PN766

MR ADDISON: - - - when I asked the question, and then he said he did it. And Commissioner, I think when you review this transcript you will find that there is more than one occasion where this has occurred.

PN767

THE COMMISSIONER: I'm sure there'll be many more.

PN768

MR ADDISON: And I - well, this is not the appropriate time but all I can do is continue.

PN769

THE COMMISSIONER: Yes, sure.

PN770

MR ADDISON: That's all I can do, Commissioner.

PN771

Okay. So you pushed Mr Hunter?---I gave him a little push to get him off and he moved away.

PN772

When you say a little push, can you just show us how hard you would have pushed?---When I was intending to push him, he at once moved away so I only gave him a little push. And that did not touch his body and was - did not yet reach his body.

**** DE TRINH XN MR ADDISON
PN773

MR ADDISON: Maybe, Commissioner, it's appropriate if we get Mr Trinh to demonstrate that say on Mr Arun.

PN774

THE COMMISSIONER: Yes.

PN775

MR ADDISON: Can you show us - can you move backwards. Where was Mr Taylor? Pretend Mr Arun is Taylor - Hunter, sorry.

PN776

THE INTERPRETER: Sorry, he's Mr Hunter?

PN777

MR ADDISON: He's Hunter.

PN778

THE INTERPRETER: Right, okay. And how he wants to be positioned themselves.

PN779

MR ADDISON: Well, Mr Trinh will have to tell us what the positioning was. I don't know what the positioning was?---I'm standing like - I'm standing like this waiting and he's - he is coming around from there - just walk over there, yes. Yes. And he was telling me to tell leading hand or him and then I swore at him saying fuck off. And then he got very close to me, very aggressively towards me and I used my right hand to push him. I used my right hand, he got close, I wanted to push him and he already moved.

PN780

Show us how that happened?---I was intending to push at him then he moved off. He responded to that by moving away.

PN781

THE COMMISSIONER: Mr Trinh says he intended?---Yes, correct, I was intending to push him.

PN782

Did he actually make contact with Mr Hunter?---No, I did not reach his body. Because everyone can respond - have a response so when it was about to reach him, he moved away. His reaction was - - -

PN783

So he never touched him?---No, I didn't.

PN784

MR ADDISON: What happened after that incident?---He went away and made a phone call.

PN785

He went away and made a phone call, right. Now, did you follow him?---When I saw him pick up the phone, I went over and talked to him.

**** DE TRINH XN MR ADDISON
PN786

What did you say?---I just said two words - - -

PN787

THE INTERPRETER: I'm not quite sure about, wun fang, what he said, wun fang.

PN788

THE WITNESS: Office.

PN789

THE INTERPRETER: He is saying something that sounds like literally house which in his lingo means the office. All right. He said I was saying to him, are you going to take me to the office?

PN790

MR ADDISON: Why did you ask that question?---Because when the incident occurred he was the supervisor. He had the right to take every worker to the office.

PN791

Mr Hunter will say that after the incident he tried to get to his desk and that you followed him and you said to him, you fucking chicken and also come here, you fucking chicken. Is that true?---No, I didn't. I didn't. Absolutely not.

PN792

Now, Mr Hunter will then say that he called out to another worker, a person by the name of Justin Hollow. Do you know Justin Hollow?---No. Some - Peter, yes, he was calling out to Peter.

PN793

Mr Hunter will say he was calling out to Justin Hollow?---Yes, also. Yes, yes.

PN794

He says that Justin Hollow then intervened between Mr Hunter and Mr Trinh, is that correct?---No.

PN795

He will say - Mr Hunter will say that Justin Hollow said to Mr Trinh, De, calm down, calm down?---No.

PN796

No? That was never said?---It wasn't.

PN797

Then Mr Hunter says that you brushed Justin Hollow aside?---No.

PN798

That you chased - that's probably the wrong word, sorry. I apologise and withdraw that. You brushed Justin Hollow aside. Then you pursued Mr Hunter to his desk, that Mr Hunter was behind his desk and that you said to him, you are going to fucking take me to HR?---No, I didn't.

**** DE TRINH XN MR ADDISON
PN799

Is any of that correct?---No. It's all wrong.

PN800

Okay. What do you - no, he's already done that. Now, after you asked Mr Hunter if he was going to take you to the office, can you tell the Commission in your own words what occurred?---I asked him, are you going to take me to the wun fang or office?

PN801

Yes, and what occurred then?---Then he got onto the path that led to the office and I followed him until he reached the office. That's it.

PN802

Why did you follow him?---To the office.

PN803

Yes, but why did he follow him?

PN804

THE INTERPRETER: He followed him?

PN805

MR ADDISON: He followed Hunter.

PN806

THE INTERPRETER: Yes.

PN807

MR ADDISON: I'm asking him, De, why he followed Hunter.

PN808

THE INTERPRETER: Yes. I think he answered. Because he wanted to take me to the office because of this incident that had occurred.

PN809

MR ADDISON: Did Mr Hunter ask Mr Trinh to come to the office with you?
---He said go and I asked him whether, you want me to go to the office? He put down the receiver and said go. Then I followed him.

PN810

Okay. Did you take Mr Hunter to be asking you to follow him?---Yes.

PN811

Okay. That's fine. Mr Hunter will say that he went to the office, that you followed two or three steps behind him, that you were pointing your finger at him, and you were repeatedly saying, fuck you fuck you. Is that true?---No.

PN812

He says you were not saying it but rather yelling it at the top of your voice?---No.

PN813

So that's not true?---Not true.

**** DE TRINH XN MR ADDISON
PN814

What happened when you got to the office?---He asked me to sit there.

PN815

All right. So when you say he asked him to sit there, was that Mr Hunter or somebody else?---Yes, Mr Hunter.

PN816

And where did he ask him to sit?---He asked me to wait in the office for Rosina.

PN817

Did he sit?---He asked me to sit down and wait, so I just sat.

PN818

How long did you sit for?---For several minutes I sat. Several minutes.

PN819

Then what happened after that?---I saw Rosina coming out.

PN820

And?---And she said she did not have time right now and asked me to go back to my workstation. So I did.

PN821

What time was this in the day? Does he have any idea what time this was?
---Between 9 and 10.

PN822

So it was early-ish in the morning?---Yes, about that time.

PN823

He was asked to go back to his workstation; what did he do then?---I went back to my workstation.

PN824

And when he got back there, what happened?---I went back to my workstation and I was there for about 10 minutes when Mr Hunter saw me and he stopped me from working there. He got Peter, the leading hand, to come over and this job cannot be - you are not allowed to do this job. So I went away. Without a job to do I had to wait.

PN825

So where did you go?---Around the workstation.

PN826

Does he mean around - - -?---An area outside the workstation where I just walked up and down.

PN827

Mr Hunter will say that about 15 minutes later, after you'd been in the office, he saw you at your workstation, that he tried to telephone the human resources department, that he went to talk to you but he arranged for a leading hand, Vong and Justin Hollow, to come with him. And he said to you, excuse me, De, can you please stop work? He will say that you then pointed your finger at him and that you screamed, fuck you, you fucking chicken. Is that true?---No, it's not.

**** DE TRINH XN MR ADDISON
PN828

He says that you repeated that a number of times and that you got louder and louder each time. Is any of that true?---No, it's not true.

PN829

He then says that he told Vong and Hollow that you were not to resume work and that he was going to human resources department or security and that he then - well, you wouldn't know that. Do you recall any of that occurring?---No. It was not true. When they sacked me they did the security to chase me - to accompany me to the car park.

PN830

Yes, but that's later on. After you walked around your work area, what happened then? What happened next?---I saw Goran.

PN831

THE COMMISSIONER: I saw somebody?---Someone by the name of Goran and the nurse. I saw two people.

PN832

MR ADDISON: And?---Asked me what had happened.

PN833

Yes?---Then I said I went to the toilet and he forbid from going to toilet, asking me to tell another person if I wanted to go to the toilet.

PN834

So you told them the story - - -?---And he forbid from doing that and he took me to the office. So I told the story to the nurse and Goran and that's the story.

PN835

Did you say you went back to the office after that?---Yes.

PN836

Who did you see at the office?---Rosina I saw and Goran.

PN837

So Goran, Romen and Rosina?---Yes.

PN838

Just so the Commission - I saw you looking a bit perplexed about Goran, Commissioner. He's one of the shop stewards and will be giving evidence, just so that - - -

PN839

THE COMMISSIONER: No, no, it's all right.

PN840

MR ADDISON: Sorry, I thought you were looking a bit perplexed there with Goran.

PN841

THE COMMISSIONER: No, no, there was just so many names floating around, Vong, Gong and Goran.

**** DE TRINH XN MR ADDISON
PN842

MR ADDISON: Indeed, Commissioner, yes.

PN843

THE COMMISSIONER: It reminds me of that skit in the movie where somebody yells out, somebody shoot anybody.

PN844

MR ADDISON: So you went back in the office, you saw Goran, Romen and Rosina?---Correct.

PN845

What happened after that?---Then he or she asked me what had happened. And I told him or her what had happened.

PN846

What time was this?---Around 11.

PN847

Did you work - did you go back to work after you'd been to the office?---I went back.

PN848

Did you go back to your workstation or somewhere else?---When I went back I did not have my tea yet and so I went to have my tea.

PN849

Yes?---Then I saw someone who seemed to be working in the office and he said, go to the 2000 department - 200 department to work.

PN850

So was that Rosina that asked you to do that?---A male, a man from the office.

PN851

Ms Gilmore will give evidence - Rosina will give evidence that at about
12 o'clock she called you back to the office. Do you recall that?---Three to four times. To and fro. To and fro. Three to four times.

PN852

As I understand where we're at, at this point in time, there's been an incident, you followed Mr Hunter to the office, you've gone back to your workplace, then you've back to the office and seen Rosina. Rosina's asked you to go to the 200 section?---No, no, Rosina did not say that.

PN853

Well, whoever. Somebody's asked you to go back to the 200 section. Some man in the office, I think?---200 section.

PN854

You've done some work there?---Yes, I did.

PN855

And then this is when Rosina called you back for the first formal meeting at 12 o'clock?---Right.

**** DE TRINH XN MR ADDISON
PN856

Do you remember that?---Yes. Three to four times on that day.

PN857

Well, forget the three to four, I'm only interested in 12 o'clock?---Correct.

PN858

Rosina calls you back at 12 o'clock. What happened at that meeting?

PN859

THE INTERPRETER: He said yes but he didn't answer the question. Let me clarify.

PN860

MR ADDISON: No, no. What happened at the meeting at 12 o'clock?
---Well, the story was told.

PN861

Rosina will say that at 12 o'clock she had a meeting in the Velcro Room, is that correct?

PN862

THE INTERPRETER: In the?

PN863

MR ADDISON: Velcro Room, V-e-l-c-r-o.

PN864

THE INTERPRETER: I don't know what this is actually.

PN865

MR ADDISON: Velcro strip.

PN866

MR BRADLY: It's a meeting room that we commonly use when we have discussions with the management. It's like a big board room, I suppose.

PN867

THE WITNESS: Yes. Well, that's right.

PN868

MR ADDISON: In the meeting - I'm must trying to work out who's there. Do you recall who was at the meeting?---Three people, as I could see.

PN869

And those three people were?---The big office, Mr Hunter and the officer. Actually five people as I saw.

PN870

Yes. Who were the five people?---I saw the big office, Goran and him - - -

PN871

Romen, yes?--- - - - Romen, Rosina, Mr Hunter and someone else who wasn't working in the office, a man.

PN872

So you don't know who the fifth person was but it was Goran, Romen, yourself, Mr Hunter and Rosina, is that correct?---That's the four of them and one man from the big office - - -

**** DE TRINH XN MR ADDISON
PN873

And a man he doesn't know?--- - - - that he did not know the name of.

PN874

That's fair enough. What were you asked at that meeting? When you first started at that meeting, what was said to you?---I've forgotten.

PN875

Well, this is very important that he tries to remember this. You say in your witness statement that Rosina asked you what happened and that you told her. I want you to try and remember exactly what was said to you by Rosina and what you said in response. Can you try that?---My English wasn't that good and there was no interpreter there.

PN876

Yes?---I knew that she asked me what had happened on that day.

PN877

Yes?---And every question she asked me I did not know. All I knew that there was this story involve me going to the toilet. And I swore at the supervisor.

PN878

Right?---Which is why the supervisor took me to the office and that was - and possibly this could be a warning.

PN879

Commissioner, in line with our previous agreement, maybe it's appropriate that Ms Gilmore step out at this point in time.

PN880

THE COMMISSIONER: Yes. Thank you.

PN881

MR ADDISON: Did Rosina - I withdraw that. Did you tell Rosina that you'd sworn at Mr Hunter?---Yes, I did.

PN882

When you told Rosina that you had sworn at Mr Hunter, what did she - did she ask you any follow-up questions on that?

PN883

THE INTERPRETER: He got it right but I just translated - - -

PN884

MR ADDISON: That's okay?---She did not say anything. She did not say anything.

PN885

She did ask any follow-up questions?---She asked me if I swore at him. I said, yes, I did.

PN886

Did she ask you why?---She didn't. No, she didn't ask me.

**** DE TRINH XN MR ADDISON
PN887

Did she ask you what you'd said?---I said - I told her I said fuck off.

PN888

Did you tell Rosina that you had pushed Mr Hunter?---Yes, I did. I wanted to push heavy. Or I wanted to push heavy.

PN889

All right. Can I ask the witness to be shown the volume of documents again? Can I take the witness to the document behind tab 11? Can I ask you, interpreter, if you could interpret the document for Mr Trinh so he understands what it says.

PN890

THE INTERPRETER: The whole thing or just - - -

PN891

MR ADDISON: Yes, please.

PN892

THE INTERPRETER: Yes, all right.

PN893

MR ADDISON: Do you understand what that document says?---Yes.

PN894

Rosina will give evidence that she asked you what happened and this is all you told her. Is that correct?---Yes.

PN895

Well, there's no mention in there of you telling Rosina that you told Hunter to fuck off?---Well, it's forbidden to go to the toilet.

PN896

No, none of that. None of that. I'm not interested in that. What I'm saying here is that this document that the company has put forward, this piece of paper, the company will say that that was the whole content of your discussion with Rosina at the 1 o'clock meeting. Is that correct or is it not?---It's not correct.
You told Rosina at 1 o'clock, did you? Sorry, I withdraw that. What else did you tell Rosina at the 1 o'clock meeting apart from what's on this paper?---She asked me questions.

PN897

Right. So she asked you if you'd sworn at Hunter?---Yes, she did.

PN898

And you told her that you told Hunter to fuck off?---Right.

PN899

Did she ask you whether you had touched Hunter, for example?---Yes, he did.

PN900

And did you tell her - what did you tell her in response to that?---Well, he came towards me very aggressively and very closely so I pushed him so - so I wanted to push him off.

**** DE TRINH XN MR ADDISON
PN901

And?---Yes, well, he got very close to me and I wanted to push him.

PN902

Yes, I know that?---And he moved away and made phone calls.

PN903

After this meeting at 1 o'clock what happened then?---Yes, I went to the 200 department and worked there.

PN904

You went back to working. Then do you recall a second meeting at about quarter to 3?---Yes, Goran asked me to go there to the office.

PN905

Did you meet in the same room?---Yes. Two to three different places. Two to three different offices.

PN906

The second meeting at quarter to 3, can you recall who was there?---Goran, Romen and Rosina, the three of them and I, four of us.

PN907

Was Hunter there?---No.

PN908

You sure?---You mean at the 2.30 meeting?

PN909

Yes, 3 o'clock meeting, or the 2.30 meeting - quarter to 3 meeting, yes?---2.40, yes, yes, Hunter was there. Mr Hunter was there. And another officer from the office.

PN910

Rosina will give evidence that at this meeting, at the 2.45 meeting, that was the first time that you told her that you had sworn at Mr Hunter. What do you say to that?---She asked me so I told her. If she did not ask me I would not have told her.

PN911

Ms Gilmore will say that at the 1 o'clock meeting you did not tell her that you had sworn at Mr Hunter, that the first time you told her that you'd sworn at Mr Hunter was the 2.45 meeting. Is that correct?---Yes. At 1 o'clock meeting she did not ask me whether I have sworn at him. So I did not tell her that I have sworn at him.

PN912

Well, you have just given evidence that you did tell her at the 1 o'clock meeting?

PN913

Commissioner, can I ask for a short adjournment?

PN914

THE COMMISSIONER: I was going to suggest maybe one. It's 11 o'clock so maybe - is a 10 minute break okay?

**** DE TRINH XN MR ADDISON
PN915

MR ADDISON: A 10 minute break would be lovely, thanks, Commissioner.

PN916

THE COMMISSIONER: We will reconvene at 10 past 11, thanks.

<SHORT ADJOURNMENT [10.58AM]
<RESUMED [12.47PM]

PN917

THE COMMISSIONER: The Commission has had the opportunity to have a short adjournment. This matter C2005/2396 is a section 99 notification of an industrial dispute. The dispute was originally notified to the Commission and the subject of the dispute was an alleged dispute over the employer's application of its discipline policy in relation to the dismissal of a union member. Proceedings commenced yesterday, that is 13 April 2005 under 111AA proceedings. Both parties at the outset gave a commitment to abide by the recommendations of the Commission arising from that process. However, after hearing a substantial part of the union's argument regarding Mr Trinh, and that evidence being given in-chief, and having had the opportunity to read all the material that has been provided, the Commission has formed the view that the company has no case to answer.

PN918

Accordingly, the Commission would recommend that the matter regarding
Mr Trinh be closed. However, in reading the material and hearing a substantial part of Mr Trinh's evidence, it is clear to the Commission that there are a series of underlying issues between supervision, management and Silcraft employees that in the Commission's view do not make good for a productive working relationship. In order to assist the parties to improve the working relationship, the Commission is prepared to chair a series of conferences to help the parties work through what appear to the Commission to be some underlying matters. That being said, I will await some indication from the parties as to the appropriate way in which we proceed with that.

PN919

Having declared that the company have no case to answer, and having indicated that the Commission is prepared to chair a series of conferences, it is now for the Commission to indicate that it will close the file accordingly in regards to Mr Trinh's termination. The Commission will stand adjourned. Thank you.

<ADJOURNED INDEFINTELY [12.50PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MR DE TRINH, RECALLED ON FORMER OATH PN699
EXAMINATION-IN-CHIEF BY MR ADDISON, CONTINUING PN699