C2006/1750, Transcript of Proceedings [2006] AIRCTrans 343 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14341-1

SENIOR DEPUTY PRESIDENT DRAKE
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMMONDS

C2006/1750

APPEAL BY TAKACS, ROBERT MICHAEL
s.45 - Appeal to Full Bench
(C2006/1750)

SYDNEY

10.15AM, MONDAY, 27 FEBRUARY 2006

PN1

SENIOR DEPUTY PRESIDENT DRAKE: Good morning. Mr Takacs, you’re appearing in this matter for yourself? Are you the appellant?

PN2

MR R TAKACS: Yes.

PN3

MR D MURRAY: If the Commission pleases, I’m from the Australian Industry Group. I appear for the respondent.

PN4

SENIOR DEPUTY PRESIDENT DRAKE: Mr Takacs, this is your appeal - - -

PN5

MR TAKACS: That’s right.

PN6

SENIOR DEPUTY PRESIDENT DRAKE: From a decision of Peter Lawson, Commissioner.

PN7

MR TAKACS: Yes.

PN8

SENIOR DEPUTY PRESIDENT DRAKE: I have, and have copied to the other members of the bench, the issues that you put in writing. Do you want to rely on those documents as your appeal? Do you want to read them to us or do you want to rely on them and add anything to them?

PN9

MR TAKACS: I’ve got three sets of documents here.

PN10

SENIOR DEPUTY PRESIDENT DRAKE: Do you want me to check that they’re the same as the ones that I have? Give them to me.

PN11

MR TAKACS: Well, they’re all - I was told to give three sets to the Commission.

PN12

SENIOR DEPUTY PRESIDENT DRAKE: Good, thank you.

PN13

MR TAKACS: I’ve given three sets and I hope that’s - I’m not a lawyer but I have set it out the best and the simplest way I could.

PN14

SENIOR DEPUTY PRESIDENT DRAKE: All right, thank you. Are they the same as the documents that you had prepared?

PN15

MR TAKACS: I think so.

PN16

SENIOR DEPUTY PRESIDENT DRAKE: Yes, I’ll just check that now.

PN17

Mr Takacs, they’re the same as the documents that we have read. Do you want to add anything to them, say anything to expand on any of them?

PN18

MR TAKACS: Well, having heard the questions for the respondent, the two representatives of Brownbuilt who were at the hearing on 20 January - - -

PN19

SENIOR DEPUTY PRESIDENT DRAKE: Yes. You should stand, Mr Takacs.

PN20

MR TAKACS: Sorry. A few questions then but they’re not here so - - -

PN21

SENIOR DEPUTY PRESIDENT DRAKE: What you should - - -

PN22

MR TAKACS: Maybe could I ask their representative?

PN23

SENIOR DEPUTY PRESIDENT DRAKE: Well, you don’t have to worry about what they think. This is all about what you say to us, the three of us.

PN24

MR TAKACS: Yes, okay, all right.

PN25

SENIOR DEPUTY PRESIDENT DRAKE: If you’re more comfortable you can sit, if you like.

PN26

MR TAKACS: I have a work related back injury.

PN27

SENIOR DEPUTY PRESIDENT DRAKE: All right, have a seat.

PN28

MR TAKACS: Work related foot injury and I need to sit, stand constantly.

PN29

SENIOR DEPUTY PRESIDENT DRAKE: Well, as you please, up and down as you like.

PN30

MR TAKACS: Thank you.

PN31

SENIOR DEPUTY PRESIDENT DRAKE: What I want you to do is concentrate on the matter of speaking to us because what you - - -

PN32

MR TAKACS: I - sorry.

PN33

SENIOR DEPUTY PRESIDENT DRAKE: No. What you have to ask yourself is what you say was wrong with what Lawson C did and why it was an error of his not to extend the time for you. In doing that, you should concentrate on the matter of the 24 days that you were late in filing. We understand from everything you have put to us that you say that your termination of employment was harsh, unjust or unreasonable. We understand that you say that. All right?

PN34

MR TAKACS: Okay. And unlawful.

PN35

SENIOR DEPUTY PRESIDENT DRAKE: And unlawful. But what we want to know is why you say that the decision not to extend the time - - -

PN36

MR TAKACS: Okay, all right.

PN37

SENIOR DEPUTY PRESIDENT DRAKE: Can you concentrate on that?

PN38

MR TAKACS: Yes. I believe the unlawful aspect of it, which is the terminating my employment inside the required five week period, I was only aware of that on approximately 18 January 2006. It was after the respondent had given me a 42 page submission and I went right through all the information and I got the calendar out and I thought, “I’d better check these dates, the five weeks” and I check it about three times and I thought, “That’s not right”, you know, and I - so then I contacted WageNet. I got two emails to David Quental of WageNet. I asked him two questions.

PN39

The first question was, if the letter indicating my termination is dated 18 August 2005, when does the five week termination expire, and he come back to me and said, at the end of business on 22 September. That was his first one. And then I emailed him again and I said, another question, if I receive my termination on the 26th of the 8th and it was dated 18th of the 8th, when does the termination five week period expire? And he come back to me and he says that is up to the Commissioner’s discretion.

PN40

I’ve looked up a case and I say to the Commission that Brownbuilt were aware that I did not receive my termination letter dated 18th of the 8th until the 26th of the 8th. Brownbuilt knew that because it was a registered letter, person to person. I was not home on the 19th when the postman arrived to deliver the letter person to person. I was not there so he could not hand the letter to me. He left a note which - all it said was, “Registered article at Oak Place Post Office”. That’s all it said.

PN41

On the 26th of the 8th I picked that article up and that was the notification that my position was terminated - on the 26th of the 8th. So I say that the five week - and Brownbuilt knew that. I say the five week period should have been after that, from that date on, so that the expiry period should have been 30 September 2005. Now, Brownbuilt terminated me on the 20th because the information - - -

PN42

SENIOR DEPUTY PRESIDENT DRAKE: Mr Takacs, if that was the case then the time - and your five weeks is fine on 30 September - if that argument was correct and you’d had 21 days to file that would have been 21 October.

PN43

MR TAKACS: Yes, still.

PN44

SENIOR DEPUTY PRESIDENT DRAKE: And so you are still late.

PN45

MR TAKACS: Yes, okay.

PN46

SENIOR DEPUTY PRESIDENT DRAKE: Why were you still late?

PN47

MR TAKACS: I’m getting to that.

PN48

SENIOR DEPUTY PRESIDENT DRAKE: Could you get to that because it’s the most important thing.

PN49

MR TAKACS: Yes, okay. On 20 September the respondent drew up - they implemented my termination, on 20 September. They gave two false documents. They wrote out two false documents. The first one was separation certificate which I did not even request.

PN50

SENIOR DEPUTY PRESIDENT DRAKE: No, Mr Takacs - - -

PN51

MR TAKACS: Yes, hang on.

PN52

SENIOR DEPUTY PRESIDENT DRAKE: No. Stop. What you’re doing is concentrating on something that won’t help you so I want to help you - - -

PN53

MR TAKACS: Okay. But no, I’m moving along.

PN54

SENIOR DEPUTY PRESIDENT DRAKE: Concentrate on - I know. I want you to concentrate on the thing that you should - - -

PN55

MR TAKACS: Yes. Well, it - - -

PN56

SENIOR DEPUTY PRESIDENT DRAKE: - - - which is what you were doing from October.

PN57

MR TAKACS: Well, the reason - I received the separation certificate, the false separation certificate and the entitlements of termination and a cheque on the 21st, the next day. I immediately checked the information and the separation certificate hadn’t been completed. It was incomplete, it was false, wasn’t completed correctly and I just said it’s not right. Two days later, on the 23rd I rung the union, AMWU, and complained to them and I complained four times to Noel Castle and he did not contact Brownbuilt until 20 October, which was already - and I hadn’t even considered unfair dismissal because I wasn’t sure what was going on, I’m given untrue documents, false documents, and all I wanted was it to be corrected.

PN58

COMMISSIONER SIMMONDS: But you knew you had been terminated.

PN59

MR TAKACS: On the 26th, yes.

PN60

COMMISSIONER SIMMONDS: Yes.

PN61

MR TAKACS: Yes, but I did not know - on the 21st when I read their documents, I believed it was unfair, unjust and unreasonable.

PN62

COMMISSIONER SIMMONDS: I understand that. Yes, that was on 21 September.

PN63

MR TAKACS: Yes.

PN64

COMMISSIONER SIMMONDS: And you lodged your application on
7 November.

PN65

MR TAKACS: Yes, but I’ll get to that. I contacted the union four times.

PN66

COMMISSIONER SIMMONDS: But let’s be clear. Back on - I think you said 26 September you believed that your termination was unfair. That’s what you just said, isn’t it?

PN67

MR TAKACS: Well, I always believed it was unfair.

PN68

COMMISSIONER SIMMONDS: All right, but when was the first time you thought it was unfair.

PN69

MR TAKACS: Well, as soon as I got - on 26 August.

PN70

COMMISSIONER SIMMONDS: Yes, okay.

PN71

MR TAKACS: I believe it’s unfair but before you lodge and unfair - you have to - look, I’ve never done this before and you got to look into it and I was a member of AMWU so I thought, well, they’ll sort it out for me.

PN72

COMMISSIONER SIMMONDS: Did you raise with them that the termination that was unfair and ask them to do something about it, or were you simply raising with them the issue of your separate certificate?

PN73

MR TAKACS: Well, they knew it was unfair.

PN74

COMMISSIONER SIMMONDS: Well - - -

PN75

MR TAKACS: Well, yes, I - - -

PN76

COMMISSIONER SIMMONDS: My question wasn’t whether they knew. My question was whether you - - -

PN77

MR TAKACS: I told him on the 23rd when I first notified AMWU, I told Noel Castle that I’m going to lodge an unfair dismissal, this is not sorted out, and I’m going to do it on my own bat because the union had virtually left me high and dry because I was locked out of my employment for 9 months and they just did nothing about it.

PN78

SENIOR DEPUTY PRESIDENT DRAKE: Yes, go on.

PN79

MR TAKACS: And on 20 October, when the 21 days already had expired, the union finally gets to Brownbuilt with their letter and immediately the respondent gives me another separation certificate which is - she changed the reason for termination. In the first separation certificate there was no reason given. And that’s one of my main problems, they failed to give a decent reason for my termination and that is unfair and unjust and I believe unreasonable.

PN80

SENIOR DEPUTY PRESIDENT DRAKE: All right, thank you. Have you concluded?

PN81

MR TAKACS: No.

PN82

SENIOR DEPUTY PRESIDENT DRAKE: Sorry.

PN83

MR TAKACS: On the 20th and then when I received this documentation, I rung Noel Castle again and said it’s no good, got to get sorted out, and he was trying to confuse the situation so I said, okay, don’t worry about it, I’ll do it myself. On the 25th of the 10th I wrote to Brownbuilt saying I reject the separation certificates, they’re incorrect and please give me a correct one, and they refused. On 3 November she wrote back and said, “I spoke with Centrelink, they said everything’s sweet with the separation certificates” and that’s ridiculous saying that because it’s - Centrelink even says:

PN84

What exactly are employment separations used for? They are used to ensure that only eligible people get paid an allowance and that they get paid the right amount when - from the correct date. This means we have to know all the information on the other side of this form, such as when the person finished work.

PN85

And that’s the main beef. They’re saying I’ve - the last I worked was the 15th of the 12th and I’ve got evidence that that is incorrect and they refused to change that and the second separation certificate they wrote 15th of the 12th and the correct date is 5 January 2005. So, separation certificates are false and misleading. And she changes - in the first separation certificate she says, “No compensation claim made”. On the second one she changes it to “Yes” - from “No” to “Yes”. And then on the third separation certificate, which was given to the Commission on the 13th of the 1st by the respondent’s representative, is a forgery.

PN86

SENIOR DEPUTY PRESIDENT DRAKE: Mr Takacs, I want you to move on from the certificates now.

PN87

MR TAKACS: Okay, all right. So on 3 November she refused to give me a new separation certificate so I carefully considered my situation and I decided that my termination was unfair, unjust and unreasonable and on 18 January I realised it was also unlawful and I bought it up to Commissioner Lawson and it meant nothing to him. And also I believe Commissioner Lawson didn’t give me a fair hearing.

PN88

SENIOR DEPUTY PRESIDENT DRAKE: In what respect?

PN89

MR TAKACS: Well, he asked me half an hour before the hearing, “Have you got legal representation?” and I said, “No”. He said, “Okay”, and then he’s jumped on me straight away, confused me, and then when I was giving evidence he even tried to stop me giving my evidence by saying, “You’re incriminating yourself”. Now, how could I be incriminating myself when I’m telling the truth? The people who are really - see, there’s two sides to every story. My side’s true, their side’s not, and I’m here to prove that.

PN90

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN91

MR TAKACS: And I’ll also say this: the respondent cannot even agree to the right - on their documentation, the right date of termination. On the 13th of the 1st they say 21 September is the - the termination took effect and on 24 February, his submission, he says the 22nd is - termination took effect on the 22nd. So he doesn’t even know which day - he’s confused about which day is the correct date. And the actual termination date is actually the 20th, because that’s when Brownbuilt wrote up the termination and the separation certificate. So, on their calculation, they’ve terminated me two days inside the required period and my interpretation, it’s nine to ten days. That’s it.

PN92

SENIOR DEPUTY PRESIDENT DRAKE: Thank you. That’s it?

PN93

MR TAKACS: And after the respondent refused on 3 November to give me a correct separation certificate and give me a reason for my termination, I thought I had no choice and I was compelled to lodge an appeal - to lodge an unfair dismissal action.

PN94

SENIOR DEPUTY PRESIDENT DRAKE: Yes. We have heard you, Mr Takacs. We’re going to consider what you say before we decide how to further proceed with this matter. We’ll take a short adjournment. We’ll resume in 15 minutes.

<SHORT ADJOURNMENT [10.32AM]
<RESUMED [10.57AM]

PN95

SENIOR DEPUTY PRESIDENT DRAKE: Mr Murray, we don’t need to hear from you.

PN96

MR MURRAY: Thank you, your Honour.

PN97

SENIOR DEPUTY PRESIDENT DRAKE: No, Mr Murray, we don’t intend to hear from you.

PN98

MR MURRAY: You don’t need to? Pardon me. My hearing is not the best.

PN99

SENIOR DEPUTY PRESIDENT DRAKE: Mr Takacs, we have considered this matter and have reached a decision and we will place the decision on transcript, a written version of our decision will be available to you.

PN100

We heard your oral submissions and they’re in support of the written materials that you have provided to the Commission and which you provided another copy of to the members of the bench today. You say that your termination of employment was harsh, unjust and unreasonable and also unlawful. However, the matter that’s on appeal today is the decision of Lawson C to refuse your application for an extension of time because you were late in filing that application and that decision is the decision that we are reviewing today as a result of your appeal.

PN101

Despite the opportunity provided to you, you have not provided an explanation, in my view, and in the view of this bench for the delay in filing your application. And insofar you have done so in relation to the certificates, it is not an acceptable explanation. You make complaint also about the manner in which Commissioner Lawson heard the application in refusing you an opportunity to be properly heard and conducting the matter in a manner that was unfair to you.

PN102

We have read the transcript and perused the materials in the file and we are not persuaded that there are any grounds for such a complaint.

PN103

Having had regard to all of the grounds of your appeal and the matters raised today, we do not intend to grant leave to appeal.

PN104

There are no other matters. We’ll publish our written reasons.

<ADJOURNED ACCORDINGLY [10.59AM]