C2006/3116, Transcript of Proceedings [2006] AIRCTrans 1269 (6 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16171-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER BLAIR

C2006/3116

APPEAL BY EYRE, EDWARD
s.120 - Appeal to Full Bench
(C2006/3116)

MELBOURNE

10.03AM, WEDNESDAY, 22 NOVEMBER 2006

PN1

MR B SHAW: I seek leave to appear for the appellant.

PN2

MR P WHEELAHAN: I seek leave to appear for the respondent.

PN3

JUSTICE GIUDICE: Thank you. Yes, Mr Shaw.

PN4

MR SHAW: Your Honours and Commissioner, this appeal is an appeal against the decision of Vice President Watson. It's going to be mercifully brief, my submissions, anyway.

PN5

JUSTICE GIUDICE: That's a bit self deprecating, Mr Shaw.

PN6

MR SHAW: In the sense that there is a very narrow issue that's being appealed here and the grounds of appeal perhaps reflect the fact that I received instructions on the 20th day, rather than being properly considered and thought out, but the issue is not so much the valid reason for the decision, the issues of 170CG(3)(a) to (c) that Vice President Watson considered, the issue is that the termination as such was harsh, unjust and unreasonable because of the time it occurred.

PN7

It's common ground and it's reflected well in the Vice President's decision, I think, but Mr Eyre was employed and had been employed for a considerable time by the Department of Human Resources and its predecessors, that he was in a relatively senior position, that he had applied for other jobs and been informed that his experience wasn't broad enough for it, but, in fact, applied for and got a job with the Deaf Blind Association which was, indeed, not a fixed term job, but it was in fact a job, potentially a permanent job, that he applied for leave without pay so he could do that job for 12 months and that that was initially denied, but he then sought a review of that decision and the review panel which it's conceded has powers to make recommendations, not decisions as such, or not determinations, but the review panel did find in fact that he should be granted some time to perform that job and in particular found that there was - in fact, didn't find, it noted it had been agreed by the employer and the employee that there was no conflict of interest or potential for confidentiality breaches arising from that employment and his substantive position in the public sector.

PN8

It's also common ground that following on that, he performed that job and was given time to - he was supposed to return to work on 17 January 2006 and that he in fact declined to do so, was disciplined, but during the course of that discipline process did apply for a further review, having been at that stage granted long service leave on half pay and he sought to continue performing the job for the Deaf Blind Association whilst on long service leave. That was denied and there was quite a bit of evidence that sits there in transcript from Ms McLaughlin as to why, the reasons she gave for denying that application, but as I said, it's not my intention today or in these proceedings to argue whether the actual reason was fair or not.

PN9

The fact is that the process which was provided for by the legislation and the process which my client indeed availed himself of as of 30 January 2006 was not completed by the end of March and when the termination took place, so his right of review was denied him. Now, it was stated in writing to my client the fact that he had applied for the grievance review, or review through the grievance procedure did not necessarily injunct the disciplinary procedure.

PN10

Now, that was stated, but in my submission that clearly ought not be correct and I refer the Commission the case of Parris v The Public Service. In that case, the Federal Court, Young J did in fact determine that the process or a grievance process should in fact injunct a termination. In that case it was a summary dismissal by a government department, the Victorian government Department of Infrastructure against an employee. Indeed, at that point, the grievance process wasn't even formally in place, but the court did hold and I can refer the Commission to paragraph 25 on page 8 of this particular print-out where the court did hold that if the termination were to proceed, she would be deprived of important statutory rights and protections, in particular her rights to access the review mechanism under the Act and regulations.

PN11

In my submission, that is exactly what happened here. Whilst one can draw conjecture as to why the process in October took two weeks and the process early this year was not completed after six, that's not really relevant. The department could have in my submission waited for the outcome of the review, at which point there may have been nothing to argue about. My client may have been directed to return to work and resigned from the other job and failure to do so would have clearly left him without a leg to stand on.

PN12

This issue was raised below and at paragraph 34 of his decision, his Honour does refer to it and almost gives the impression he's going to accept it at that stage, but as often is the case in judgments and decisions, at paragraph 35 he finds to the contrary, but in my submission at paragraph 35 in particular, he goes far too far in the second last sentence where he draws the conclusion that the situation is unlikely to change as a result of the grievance.

PN13

In my submission, there's no way that anybody could predict that, particularly in the light of the principles that have been adopted by the first grievance process, that there was no conflict involved. It may well have been that the approval was granted. Mr Eyre was at that stage already on long service leave. He wasn't working for the department. The department wasn't being deprived of his services by him having another job. It may well have been the case, but I suppose I'm committing my own sin here by going into the merits of the actual potential decision, whereas in fact our submission is that the termination itself was harsh, unjust and unreasonable and the Commission should, whilst it's not argued that there may have been a valid reason, it's certainly argued that there wasn't at the time a valid reason for section 170CG(3)(a).

PN14

There certainly can be no argument raised by me or on behalf of my client that section 170CG(3)(b) wasn't abided by, or followed or indeed 170CG(3)(c) clearly and again Vice President Watson goes through that and makes findings, positive findings for justifying the termination, but in my submission on this occasion the Commission should be exercising its discretion under section 170CG(3)(e) that the actual termination based on its timing prior to the completion of the review process which may have in fact found that there was no reason for a termination, that it was in fact itself harsh, unjust and unreasonable and subject to any questions, those are my submissions.

PN15

JUSTICE GIUDICE: Yes, I do have a couple of questions. Can you just remind me of the precise date of termination?

PN16

MR SHAW: Well, there was an investigation, I think it was 22 March 2006.

PN17

JUSTICE GIUDICE: The second matter I wanted to ask about was the grievance process itself. What were the powers of the - or what could be the outcome of the grievance process?

PN18

MR SHAW: The outcome of the grievance process as I conceded earlier, your Honour, were that it would make a recommendation. It wouldn't have been necessarily binding, the department could indeed have ignored it, the management could have, but it appears certainly from their first actions that they do accept such recommendations.

PN19

JUSTICE GIUDICE: Is there any relevant history or practice in relation to undertaking word while on long service leave, indeed work for another employer? It's really a question of evidence in this case. Was there any?

PN20

MR SHAW: There was certainly no - again, to make the appropriate concession, there was no evidence about the taking of other work on long service leave. However, it's not uncommon for people to be given leave without pay to undertake work that's going to help them in their future employment with the department. The issue was raised, as you'll probably see from having read the decision as to the relevance or otherwise of the Victorian Long Service Leave Act which in fact makes it an offence to work for somebody else whilst on long service leave, but this agreement clearly has a very comprehensive long service leave provision, the certified agreement which we submitted and it was accepted by Vice President Watson that it covered the field and excluded the Act, although he did allude to the principle in that Act as to whether it was a good thing to work on long service leave or not.

PN21

JUSTICE GIUDICE: Now, the period of employment with the Deaf Blind Association commenced without the approval of the employer, is that right?

PN22

MR SHAW: It had retrospective approval when it commenced in 2005. It continued without the approval. In other words, the approval expired I think it was 17 January or 15 January and it continued. In fact, it continued until early August when my client in fact resigned from that position.

PN23

JUSTICE GIUDICE: That's August this year?

PN24

MR SHAW: This year, yes.

PN25

JUSTICE GIUDICE: So the period of retrospective validation, if I could put it that way, was not intended to be prospective at all? There was a direction to resign?

PN26

MR SHAW: Yes. The recommendation which the department accepted was for a limited period, three months, and it was effectively an extension of that my client was seeking when he was terminated. In fairness, to save my learned friend pointing out, when I say extension, of course it was a different basis. He was saying I'm now on long service leave, I'd like to be able to keep working here, where the previous one, he was allowed to take recreational leave and some other leave entitlements.

PN27

JUSTICE GIUDICE: I must say, speaking at a level of generality, these sorts of arrangements are a bit of a surprise to me. I've never come across this idea of people taking leave to work for somebody else on the basis that it might lead to permanent employment. Is this something which occurs in this area?

PN28

MR SHAW: The evidence was that certainly leave without pay to perform other work for other organisations was not uncommon. The suggestion that the position might be a permanent one was relatively unique, but, of course, it didn't have to be a permanent one. The Deaf Blind Association also knew my client's position when they engaged him and, indeed, as it turned out, he had resigned before his long service leave would have expired in any event, for different reasons.

PN29

JUSTICE GIUDICE: Thanks, Mr Shaw. Mr Wheelahan.

PN30

MR WHEELAHAN: Thank you, your Honour. I've got a three page submission just in answer to the grounds of appeal. I note my friend takes no issue that there was a valid reason for the dismissal and the issue in the exercise of the discretion that he has taken the Commission to with respect to the grievance was dealt with by his Honour at paragraph 29 and paragraphs 32 to 35. In my submission, having dealt with that same submission that's put to this Full Bench, there's no appealable error in the way that his Honour has dealt with that.

PN31

With the sequence of events, of course, and my learned friend says, well, if the second grievance had gone to its end, it may well have resolved the matter, that can't be right because firstly when he commenced employment, there was unauthorised employment. As a result of the grievance which gave him a period of grace which in effect equated to a probationary period with the Deaf Blind Association, at the end of that period he was then in unauthorised employment again and he was told to cease that employment which he didn't and as his Honour noted, even at the time of the inquiry on 10 March, he still had not ceased that employment, so at all times he was in breach of that direction to cease unauthorised employment.

PN32

JUSTICE GIUDICE: When you say at all times, this is probably an indication that I haven't fully grasped the facts, but the period covered by the recommendation which your client accepted, do you say that's simply, or did that simply retrospectively authorise the period, but didn't go on into the future? Is that how it worked?

PN33

MR WHEELAHAN: It did in part - I should say at all material times that he had a period of grace and at the expiry of that period, which was retrospective and also prospective, because the grievance was in October of 2006 and he had that period up until 17 December and 17 January to make a decision and either resign or not.

PN34

JUSTICE GIUDICE: I see.

PN35

MR WHEELAHAN: So thereafter, it can't be contested that there's a period where again he is directed to cease that unauthorised employment and he does not. At paragraph 5 I've dealt with the issue of the reasonableness of the direction. That doesn't seem to be disputed at today's hearing, but I've referenced in any event much of the evidence upon which it would be reasonable for his Honour to draw the conclusion that it was reasonable direction.

PN36

The other ground of the appeal which I've noted and I've already referenced the paragraphs at paragraph 29, his Honour has squarely dealt with the submission that the unresolved grievance meant that either, (a) there was not a valid reason or in terms of section 170CG(3)(e) which he then deals with at paragraphs 32 to 35. In the grounds of appeal it's said that he wrongly took into account the application of the state Long Service Leave Act.

PN37

You'll see in paragraph 35, although referring to it, he does in fact note that it may not apply, so again he's dealt with it but made no material error and it wasn't for him, because it wasn't an issue in the case to determine whether or not the terms of the certified agreement dealing with long service leave covered the field and included the state Act.

PN38

JUSTICE GIUDICE: What was the relevance of it if it didn't apply and a different situation existed under the agreement?

PN39

MR WHEELAHAN: Because he was not so much - the agreement is silent on whether you have alternative employment whilst on long service leave. The agreement deals a lot more with the quantum of long service leave, so the relevance in the context of reading it is the purpose of long service leave and the purpose of long service leave is to take a break and as was put to Ms McLaughlin, to go and sun oneself and I've referenced the appeal book at page 78 and transcript 715 to 716 and it's in this context that he's discussing what the purpose of long service leave is, so it's noting the provisions of the state Act and there certainly wasn't a decision put before his Honour to say that the state Act did not apply, so it was left open and I should add that he asked for written submissions from both parties, but I was instructed by the department to make no submission about whether or not it did.

PN40

JUSTICE GIUDICE: Whether or not?

PN41

MR WHEELAHAN: The certified agreement covered the field.

PN42

JUSTICE GIUDICE: The question of law.

PN43

MR WHEELAHAN: Well, yes, it is, but I was instructed not to make a submission about whether or not it did, so that it is still left open and he has left it that way and said, well, it may apply, but it's just a relevant matter in the context of what the purpose of long service leave is.

PN44

JUSTICE GIUDICE: Yes. Is there any practice or material to indicate that your client has given approval to undertake employment during periods of long service leave before?

PN45

MR WHEELAHAN: My understanding is that there's not and I was looking for the reference there. I think Ms McLaughlin or Mr Joyce said that they had never granted an approval personally, or it must be Mr Joyce, it was only Mr Joyce had the delegation, but again what reverts - even if there is, though, the evidence overwhelmingly was that there was sound reasons for not granting Mr Eyre approval and those reasons I've referenced at paragraph 5 of the written submissions and that's generally where they talk about the requirement to have stable management.

PN46

He had a very senior position and leaving to take up another very senior position wasn't a satisfactory way to not have an end date. It wasn't for a fixed term position and the evidence was that there was an ongoing contract and for those primary reasons, the application was denied and then dealing with long service leave as his Honour noted, well, that was a separate entitlement to long service leave which is really a separate issue to being given leave to work at an open ended senior position with an alternative organisation.

PN47

In any event, his Honour dealt with all those issues and in my submission he didn't make any material errors. Just dealing with Parris v Department of Infrastructure, that is a different review process that we're talking about. This is a review process under section 62. It's different to this grievance and again, of course, it was an interlocutory application to a court where they need only argue a serious issue to be tried and the balance of convenience, but it certainly can be distinguished from the facts of the present case. If the bench pleases.

PN48

JUSTICE GIUDICE: Thanks, Mr Wheelahan. Mr Shaw.

PN49

MR SHAW: There's nothing really to be said in reply in relation to the way I've conducted the submissions in any event, although it was hotly contested that the reasons given by the department for the direction or the decision was valid or not was the stable management issue. The submissions we put at the time was it was fairly irrelevant when he was already on long service leave, in any event. The place was without him for that period of time regardless, but that's not really a primary submission.

PN50

JUSTICE GIUDICE: Thanks, Mr Shaw. Thank you, gentlemen, for your submissions. We shall adjourn for a short time to consider what's been put and we will return and give an indication of how the appeal is to be finally resolved.

<SHORT ADJOURNMENT [10.30AM]
<RESUMED [10.41AM]

PN51

JUSTICE GIUDICE: Thank you for waiting, gentlemen. We've been able to reach a decision. This is an appeal for which leave is required against a decision given by Vice President Watson on 31 August 2006 dismissing an application by Mr Edward Eyre for a remedy in relation to termination of employment by the Department of Human Services. The facts are fully set out in the Vice President's decision and the reasoning is clear.

PN52

We've considered what's been put on the appeal by Mr Shaw. We've not been persuaded the Vice President's decision is affected by any relevant error. He appears to have taken all relevant matters into account, did not take any irrelevant matters into account and made no error of fact or law. The determination was not harsh, unjust or unreasonable, was within the discretionary bounds applying to cases of this kind. There's no reason of a public interest or otherwise why leave should be granted to appeal and leave to appeal is refused. We shall now adjourn.

<ADJOURNED INDEFINITELY [10.43AM]