C2006/2651, Transcript of Proceedings [2006] AIRCTrans 919 (31 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15420-1

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT WATSON
COMMISSIONER CRIBB

C2006/2651

APPEAL BY PAUL O’MEARA
s.120 - Appeal to Full Bench
(C2006/2651)

MELBOURNE

10.31AM, TUESDAY, 18 JULY 2006

Reserved for Decision

PN1

MR P WHEELAHAN: I seek leave to appear on behalf of the appellant.

PN2

MR G MCKEOWN: I seek leave to appear on behalf of the respondent, Stanley Works Pty Ltd.

PN3

JUSTICE GIUDICE: Thank you. Leave is granted in each case. Mr Wheelahan?

PN4

MR WHEELAHAN: Thank you, your Honour. I might hand up initially before I even start - there is one case I'm going to rely on, which is the decision in Wright v Australian Customs Service, 23 December 2002. Then attached behind that, for convenience, I have just stapled together the relevant certificate in this matter and the letter by the Commissioner to the applicant's solicitors seeking further information under section 170CF, and a letter from the applicant's solicitor dated 13 April 2006.

PN5

JUSTICE GIUDICE: That was the letter responsive to the Commissioner's - - -

PN6

MR WHEELAHAN: Correct. I've handed that up just in case it is not all on file or hasn't yet been copied.

PN7

JUSTICE GIUDICE: Thank you.

PN8

MR WHEELAHAN: This matter, the applicant was employed as a storeman by the respondent for about five and a half years, from 10 August 2000 until 6 February 2006. That is set out in the form R18 application. That application claims relief on the ground that the termination was harsh, unjust or unreasonable and also failure to give notice. It is on that first ground that the certificate was issued with respect to. The brief summary of reasons put in that application is as follows:

PN9

Forced resignation. Please refer to the applicant's letter attached dated 6 February 2006.

PN10

That letter, which I take it is before the Bench, attached to the application, in relevant part sets out that the applicant wishes to resign, but then goes - - -

PN11

JUSTICE GIUDICE: Just a moment, Mr Wheelahan. I'm not sure we do have that letter. Was that filed?

PN12

MR WHEELAHAN: Well, it's referred to as attachment to the application.

PN13

JUSTICE GIUDICE: Yes.

PN14

MR WHEELAHAN: Do you need - - -

PN15

JUSTICE GIUDICE: I have the original file here which it's on, but I don't think it's been filed as part of the appeal papers, which is normally - it probably should have been.

PN16

MR WHEELAHAN: I'll just hand up three spare copies.

PN17

JUSTICE GIUDICE: Very well. Thank you. Two will be sufficient, if you need one for your opponent.

PN18

MR MCKEOWN: No, I don't need a copy. I'm actually offering assistance to my learned friend, your Honour.

PN19

JUSTICE GIUDICE: I'd expect no less, Mr McKeown.

PN20

MR MCKEOWN: Your Honour, I should just before my learned friend continues, it might be best if I wait until - I wouldn't want it seen that my silence would indicate that I'm accepting in terms of the letter of response by the applicant's solicitors to the Commission for obvious reasons. I allude to that at this stage.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR WHEELAHAN: Now, on the Commission file is the letter of resignation. Its terms are that it firstly states it resignation, but then it's qualified:

PN23

I've been concerned for some time about health and safety not being taken seriously by management, and wish again to draw attention that I have already sustained two injuries. I feel I will sustain more injuries if I remain, and am leaving for that reason. There are certain people who are dangerous and should be cautioned. As the situation remains, I have no alternative but to resign.

PN24

Then he goes on about referring this letter. So the principal case there is he's put, if this was a matter of pleading, that he was in the position where he had no alternative but to resign, which as a matter of law, the case would be put as an acceptable repudiation of the contract, but this is dealt with later in the letter from the applicant's solicitor. Now, a conciliation conference was held before the Commissioner on 10 April 2006. As to the conduct of that conciliation conference, I refer to the letter that you have in your bundle from the applicant's solicitor dated 13 April 2006, on the second page, under the heading First Ground. Now, the position the appellant takes is that, firstly, this letter is part of the materials before the Commissioner, but the case I put on behalf of the appellant is that what is stated here is how the conciliation conference was conducted.

PN25

I've asked my learned friend if that's an agreed matter and he said it's not, which leaves therefore two courses of action; (1) under section 45(6), because this is a Pre-Reform matter, I seek leave to call the applicant's solicitor to attest to the contents of this letter being true and correct. For the moment, I'll just go to the letter and - - -

PN26

MR MCKEOWN: If I could indicate, your Honour, because I think in terms
of - I do object to the letter because in effect, what appears to be attempting to be done is tendering of the letter. It is said then that, "Oh well, I might call the solicitor for the applicant" in terms of matters which were raised in the conciliation conference and I object to evidence being led in terms of what was said in terms of the conciliation conference. I object also in terms of the letter; in my submission, the letter is nothing more in terms of - or should be seen in terms of a self-serving document which asserts to be a position as to what occurred in terms of the conciliation conference. I maintain my objection, your Honour, in terms of 104(5) of the Act and also as to the probative value in terms of the attempted tendering of the letter and the contents therein.

PN27

Or the alternative position being put, that they wish to call the applicant's solicitor. We were not put on notice prior to proceedings this morning that such a course of action would be attempted to be taken, and I'd need to take instructions further in terms of issues as to whether, depending on the decision made by the Full Bench, as to my objections.

PN28

JUSTICE GIUDICE: Yes. What do you say about that, Mr Wheelahan?

PN29

MR WHEELAHAN: Well, your Honour, the certificate of course is issued without any evidence per se. At the moment, all you have is what is on the Commission file. This letter is squarely part of the material taken into account by the Commissioner. So firstly on that basis, it must also be considered by this Full Bench and the appeal. If there are matters that are then disputed, as my friend says he's yet to take instructions, all the more reason why the applicant's solicitor should be called and he can be cross-examined.

PN30

JUSTICE GIUDICE: Well, what do you say to the objection based on section 104(5) of the Pre-Reform Act?

PN31

MR WHEELAHAN: Well, the difficulty is that it's already on the Commission file as part of the material, so it's already there. In effect, my friend is asking you to ignore it, but you can't because it's part of the matter that you must look at, part of the materials used upon which the Commissioner made a decision to issue the certificate.

PN32

JUSTICE GIUDICE: Well, speaking for myself, I'm not sure that that's a very satisfactory basis to submit that 104(5) doesn't bind us. I mean, 104(5) is there.

PN33

MR WHEELAHAN: You did touch upon this, your Honour, in your decision in Wright v Australian Customs Service. I'm in the same position as my friend. I didn't know there was any objection until a moment before your Honour took the Bench.

PN34

JUSTICE GIUDICE: As far as the question is whether this is an arbitration proceeding, the opening words of 104(5)?

PN35

MR WHEELAHAN: As a submission, I'll submit that it's not.

PN36

JUSTICE GIUDICE: Yes. What is it?

PN37

MR WHEELAHAN: It's an appeal from an order under section 45(1)(b), disposing of the applicant's rights.

PN38

JUSTICE GIUDICE: Yes.

PN39

MR WHEELAHAN: By way of example, paragraph 38 of the decision handed to you, in that case McCarthy DP had a more - called for submissions from the party, written submissions in the conciliation process, and again, he has identified that part of the difficulties, what matters may or may not be common ground, and that of course there is no sworn evidence given, so the alternative submission is for - if it's put by the respondent that, well, what the applicant says is just not true, the only way to remedy that is to call evidence. The alternative is, by the nature of the very application, that these matters - the certificate should not have issued unless it was manifestly untenable, that one has to accept without hearing sworn evidence what the applicant wishes to argue.

PN40

Now, ultimately at the hearing, the applicant would be arguing what is contended for by his solicitor. So in the way of a nature of pleading, it has to be accepted at that level for the purposes of this appeal.

PN41

JUSTICE GIUDICE: Well, I don't think in Wright there was any objection by anybody to the material that tended to indicate what had occurred in conciliation, that by mutual consent that material went in and in fact it was part of the Deputy President's decision in any event.

PN42

MR WHEELAHAN: That's correct, your Honour. Perhaps one way would be
- there are four dot points here with respect to the conduct of the conciliation. It might be appropriate to find out which of those matters are in fact contested because the first dot point says, well, there was one settlement offer put. Now, if that's contested, perhaps we should hear from my friend and dissect what, from that letter referring to the conduct of the conference, is not accepted.

PN43

JUSTICE GIUDICE: Yes. I might turn to Mr McKeown again for a moment, Mr Wheelahan.

PN44

MR WHEELAHAN: I'm sorry, your Honour, I didn't hear that.

PN45

JUSTICE GIUDICE: I might ask Mr McKeown a couple of questions. Mr McKeown, I suppose the issue is how is the Commission or the Full Bench to make any judgment at all on the Commissioner's certificate without some knowledge of the case as put by the parties, either in conciliation or otherwise? I mean, any judgment at all, whether it's from the appellant's perspective or from the respondent's perspective?

PN46

MR MCKEOWN: Your Honour, I would say firstly in terms of as was pointed out in the Wright decision, it's completely within the statutory requirements of the Act that a certificate is issued without reasons. That was noted in the judgment in terms of:

PN47

Further, it is possible the Commission may merely issue a certificate without reasons.

PN48

Part of the respondent's case - and I am placed in a difficulty if my friend wants to proceed with this sort of point-by-point analysis of the letter, in terms of getting instructions and things of that nature. I still maintain my original objection for the very reason that the safeguards exist in terms of the conciliation conference process. But in terms of what the respondent's position, your Honour, if I could briefly put, is that there were materials before the Commissioner. There was the letter of resignation, there was the unfair dismissal application under 170CE which set out in terms of what the position the applicant was trying to maintain. He had that before him. In terms of the issue, they did not apply under Rule 46, which they had that option.

PN49

They had the option within seven days of the certificate being issued to seek reasons. Instead, what they said to the Commissioner in their response is that, "Look, we don't see any need to put in further information." Part of the respondent's case, they did qualify it by saying, "For reasons said below", but the critical issue was, your Honours and Commissioner, that they indicated - and it flows from the reading, the straight reading, in my submission, the reading of the 170CF, that all the requirements were met by Commissioner Raffaelli. That's in reference to 170CF(2), 170CF(3) and in my submission, it's not appropriate for an in-depth examination of contested facts in issue. That's not what occurs because this is an interlocutory process.

PN50

The very rationale, the very underlying reason in terms of 170CF, the test is for the Commissioner to make an assessment in terms of the applicant's application. This was recognised, and I realise you were part of that, your Honour, with leading that Full Bench in terms of the Wright decision. The issue there, as I have indicated, there didn't have to be reasons provided. There's enough material, in my submission, for the Full Bench, in analysing the sub-requirements of 170CF, that Commissioner Raffaelli has fulfilled his duties. He has exercised his discretion.

PN51

JUSTICE GIUDICE: Leaving aside questions of what was said or wasn't said in conciliation, in your client's submission why was this application destined to fail and manifestly untenable?

PN52

MR MCKEOWN: Well, it's interesting you put it that way, your Honour, because really, as was indicated in the Wright decision, it's not for the respondent. The respondent doesn't get the opportunity to put in further information. The Full Bench in Wright's case recognised that and said that's because we're look at the, if you like, drawing from the common law tests, the decision in General Steel. There's a discussion, your Honour, going from paragraphs 25 through to 27 about the common law tests, and then finally at the bottom of page 356 of the reported decision, there is the test that the Commission applies in terms of it. But more importantly, your Honour, also what was recognised, and again this is at paragraph 29 of that decision, is that we're not looking at an in-depth analysis. What we're looking at - because what was noted in that case:

PN53

In considering the merits, the Commission has not had the benefit of sworn evidence and is not therefore in a position to make finding of fact on contested issues.

PN54

That's very much the case. Because we are a conciliation which was recognised that often in conciliation processes, we'll have parties that will concede certain issues, but lo and behold, if it doesn't settle all those issues become a fault and they are in dispute. In my submission, to adopt the course that's being proposed by my learned friend, it really goes into the area of no longer being common law interlocutory test, so to speak, it's more getting into the area of examination of the factual issues in dispute, and does it stop at - well, is the Commissioner to be called? Who's the best person in terms of it? Do we - - -

PN55

JUSTICE GIUDICE: So are you saying that a decision of this kind can never be subject to appeal?

PN56

MR MCKEOWN: Sorry, your Honour?

PN57

JUSTICE GIUDICE: Are you saying that a decision of this kind can, in practical terms, never be subject to appeal, can never be challenged - - -

PN58

MR MCKEOWN: No, definitely not, your Honour, because clearly it can. There's been a lengthy discussion in your Wright decision as to the fact that a certificate is quoted to an order, it's disposing of a matter summarily, it's quite a
- what I'm saying is, it's not the respondent's - the Act, when you read the Act, particularly 170CF(3), it's not the respondent who has to be putting in further information. It's the applicant. The applicant is invited because the test, in terms of the tests recognised - well, the final test recognised by the Full Bench was:

PN59

It would therefore appear the strict test for determining whether or not an application for judicial review should be summarily dismissed is as in the case for the issue of a 170CF(4) certificate, whether the substantive application has no reasonable prospect of success.

PN60

That's the test, according to the Full Bench's view there. That test is drawn from a common law. When you look at the common law tests, you're looking at interlocutory steps. It's not an issue where the Commissioner can be expected
- and in my submission, such an exercise in terms of proceeding through, because we will get into an area of - - -

PN61

JUSTICE GIUDICE: Mr McKeown, I understand that point, but I think I've been trying to draw your attention to a more fundamental issue about appeals of this kind. Perhaps I can approach it this way; do you say the Commissioner's decision was correct?

PN62

MR MCKEOWN: Yes.

PN63

JUSTICE GIUDICE: Why?

PN64

MR MCKEOWN: On the basis that we have a letter of resignation. Despite what my learned friend wants to dress up with the qualifications, we say it is a clear-cut act by the applicant that he wanted to resign. "I wish to resign."

PN65

JUSTICE GIUDICE: Yes.

PN66

MR MCKEOWN: We have his application then made to this Commission. He doesn't seek reinstatement. Now, it goes without saying in my submission that you have the situation where, if he's saying he's forced to resign, what you would immediately want to do is seek reinstatement. If he's saying that's the true position. But unless you have other motives which may be of a political nature or - I'm not going to surmise on that, but we say we have an experienced Commissioner who conducted a conciliation, who had before him the documents in terms of the letter of resignation. He had an application in which the person was not seeking reinstatement under the Act, the primary remedy under the Act. We have a person who, in terms of - - -

PN67

JUSTICE GIUDICE: Yes. We're only still dealing with this issue about what material - - -

PN68

MR MCKEOWN: Sorry.

PN69

JUSTICE GIUDICE: You have indicated the basis. What do you say about the other allegation, that there was no serious attempt to settle the matter, the ground along those lines, you know the one I'm referring to?

PN70

MR MCKEOWN: What we say, your Honour, is that one has to look at the contextual background to this matter. We are dealing with termination at the initiative of the employee. These types of cases invariably can be fairly black and white in terms of what the parties' positions are. You have one party who says, "Well, hang on a minute, why are they taking this to court, because they resigned?" You've got the other party who has said, "Look, hang on a minute, I felt pressured about this, I was worried about Occupational Health & Safety."

PN71

JUSTICE GIUDICE: I see. Well, you say that in order to defend the appeal, you don't need to have reference to any of the material that was discussed on conference, but isn't there an argument that when the Commissioner asks for more material and he gets more material - - -

PN72

MR MCKEOWN: With respect, he doesn't, your Honour. If you read the letter, the sentence reads - just bear with me, your Honour. The sentence begins, and this is the fourth paragraph down, your Honour:

PN73

With respect, for the reasons set out below, we see no reason to provide further information.

PN74

Now, in my submission, your Honour, that clearly meets the requirement that the Commissioner was obliged to meet in terms of 170CF(4)(a). Just on that alone. He doesn't have to read further. They have said, "We're not going to provide you any further information." They said it with respect, so that was nice. But reading the section, because it says:

PN75

If in relation to an application to which subsection (3) applies, the applicant does not provide further information regarding the applicant's claim - - -

PN76

COMMISSIONER CRIBB: Mr McKeown, how do you deal with the last sentence of the paragraph that you referred us to? Which says:

PN77

However, we do take the opportunity to restate and clarify the submissions that have already been put to the Commission.

PN78

MR MCKEOWN: Which paragraph is that, Commissioner?

PN79

COMMISSIONER CRIBB: The one you referred us to, Mr McKeown, the fourth paragraph.

PN80

MR MCKEOWN: Yes.

PN81

COMMISSIONER CRIBB: The one that starts "With respect"?

PN82

MR MCKEOWN: I'm indebted, Commissioner, because I actually have that sentence highlighted as well. In my submission, it still reflects what they've said above, even though "We see no reason to provide further information". My submission is, all of their reasons that they present there below, they're simply supporting what they've already said. Or it could be that - no, I won't take it further, Commissioner.

PN83

JUSTICE GIUDICE: Mr McKeown, can I just ask you one more question about this. Section 105(4), why does that apply to this appeal?

PN84

MR MCKEOWN: 105(4)?

PN85

JUSTICE GIUDICE: I'm sorry, 104(5).

PN86

MR MCKEOWN: Well, we clearly say this is part of an arbitration proceeding. This is very much - it's one of the steps that can be taken in terms of an arbitrated proceeding, and that's a matter for under the Act. Clearly, if you like, it's the certificate being issued is the dismissal of an arbitrated proceeding. I think I understand the point where your Honour might be heading towards in terms of whether or not that argument about conciliation proceedings and arbitration and when the commencement takes place, it would be my submission, when you're looking - the certificate is the summary form of the termination. In my submission, it is within the meaning of arbitrated proceeding.

PN87

JUSTICE GIUDICE: Until a certificate is issued, the matter is still in conciliation, I suppose. It might be said that if a certificate is issued which dismisses the matter, the stage of arbitration hasn't been reached. It might also be said that this proceeding is about whether or not there should be arbitration rather than arbitration itself.

PN88

MR MCKEOWN: Yes. Very well. Is there anything else you'd like to put to us, Mr McKeown, on the objection? We'll adjourn shortly to consider what's been put and I'll give Mr Wheelahan another opportunity as well.

PN89

MR MCKEOWN: Thank you, your Honour.

PN90

JUSTICE GIUDICE: Thanks, Mr McKeown. Mr Wheelahan?

PN91

MR WHEELAHAN: Just two points, your Honour. Section 104(5), the qualification at the end, of course, in relation to matters in dispute that remain unsettled, and that also lends to the reason, what is it that is in dispute about what is put by the applicant's solicitor? Secondly, and more importantly, returning to paragraph 38 of the decision in Wright, you'll note there, and you asked my learned friend about what material should be examined, in that case squarely, you see the sentence there midway through the paragraph:

PN92

Be that as it may, from an examination of the material that was before the Deputy President in this matter -

PN93

Now, just so the chronology is clear, the letter from the applicant's solicitor dated 13 April 2006 is dated one day after a letter from the Commissioner providing an opportunity to provide further information. In my submission, the case put by the respondent that no material was provided should be rejected, that the letter from the solicitor goes for some pages and detail which is part of the material to be relied on. The paragraph that says, "We see no reason to provide it, but we will anyway." It doesn't say we're not going to provide information. You can take it that the four pages is providing information that forms part of the material to be considered. If the Full Bench pleases.

PN94

JUSTICE GIUDICE: Very well. We'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.03AM]
<RESUMED [11.20AM]

PN95

JUSTICE GIUDICE: Yes. In relation to the tender of the letter to Commissioner Raffaelli dated 13 April 2006 from McLawyers on behalf of the applicant, Mr O'Meara, we have decided to accept the tender. We will, in due course in our reasons for decision, elaborate on why we've made that decision. I should make it clear that we don't see the need for any sworn evidence in relation to the letter. We are interested in the letter because it was material furnished to the Commissioner in response to a request in his letter of 12 April 2006. We accept the tender on that basis.

EXHIBIT #W1 LETTER TO COMMISSIONER RAFFAELLI FROM APPLICANT'S SOLICITORS DATED 13/04/2006

PN96

MR WHEELAHAN: As to the conciliation conference on 10 April 2006, the appellant relies as to its first ground, which also marries with the notice of appeal on the third paragraph there in the four dot points about the conduct of the conference. On 12 April 2006, the Commissioner wrote a letter to the applicant which is also part of the materials on the file. Does the Full Bench wish that letter to also be tendered as part of the material before the Commissioner?

PN97

JUSTICE GIUDICE: That is part of the appeal documents, isn't it? Wasn't the letter of 12 April filed?

PN98

MR WHEELAHAN: I'll just check that.

PN99

JUSTICE GIUDICE: It doesn't make a great deal of difference. If you want it marked, we can mark that.

EXHIBIT #W2 LETTER TO APPLICANT'S SOLICITORS FROM COMMISSIONER RAFFAELLI DATED 12/04/2006

PN100

MR WHEELAHAN: Thank you. That letter was sent in accordance with section 170CF(3). W1 is the response to that letter. In that letter, and I might say that although in a chronological way the applicant's solicitor has put the first and second ground, by way of submission on disposing of this appeal, I put that the second ground in itself is enough to dispose of the appeal without having to refer to the first ground about whether appropriate attempts to settle the application by conciliation were made. I say that for this reason; that is apparent even from the letter of resignation and what my learned friend has said about it, there is manifestly an issue to be tried.

PN101

In addition to the letter attached to the resignation of 6 February 2006, the applicant's solicitor sets out on the second ground and puts the case of the applicant to the Commissioner. You will see the first paragraph it's put that this is a case of constructive dismissal in that the respondent has repeatedly breached its duty to provide a safe workplace for the applicant, and further contended the respondent's negligence with respect to OH&S obligations has caused the applicant to be physically injured on two occasions, caused the applicant to be assaulted by his supervisor, and thirdly, placed him at risk of serious injury on other occasions.

PN102

Now, I might note in passing, as to the second one of the assault, you will see the last line, two paragraphs down the applicant's solicitor has said that that allegation wasn't answered in the conciliation conference. The critical point for the purpose of this appeal is again it is a disputed fact upon which sworn evidence ought to be received. The next paragraph says, and this is the crux of it:

PN103

It was said the respondent's conduct in this regard was so serious that it amounted to a repudiation of the employment contract which ultimately caused the applicant to cease his employment.

PN104

Now, I won't read the other paragraphs, but I just draw your attention to one other paragraph above the subheading, Conclusion:

PN105

Since the case has legal grounding, is a constructive dismissal, and the parties are in dispute about the facts of the case, it cannot be said that the applicant has no reasonable prospects of success at arbitration.

PN106

Now, over the page, the applicant's solicitor then drew attention to the case that I handed up and having had his attention drawn to that, the Commissioner on 15 May, issued the certificate pursuant to section 170CF dismissing the applicant's application so far as it relates to section 170CE(1)(a). Now, the principles in Wright are set out at paragraphs 20 to 34, and I in particular refer to paragraphs 25, 26 and 27. If one looks at the first paragraph, 25, of the quote from Barwick CJ set out therein, and looks at the facts in this case and the material and the submissions made by the applicant's solicitor, it just cannot be said that this case is manifestly groundless, or in the words:

PN107

- so manifestly faulty that it does not admit of argument.

PN108

Again, using the term quoted at paragraph 26, where the High Court has been quoted with approval by the Full Bench in this case:

PN109

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

PN110

In my submission, it is blatantly clear that there is a real question to be tried because the very letter which is said to be a resignation in the following paragraphs has been qualified by the applicant. He has put that he had no alternative to resign and that is a matter that needs to be the subject of evidence. Secondly, there will be questions of law that will need to be put on a proper arbitration of this matter. Now, I just say by way of closing, my friend has just kindly handed to me a folder of authorities and just looking at the types of cases that he is proposing to rely on such as Mohazab v Dick Smith Electronics Pty Ltd, about whether there was a termination at the initiative of the employer, if my friend seeks to rely on those types of cases, that is the very reason why this matter should be the subject of a proper arbitration so that these questions of law can be properly considered with sworn evidence.

PN111

If the Commission pleases.

PN112

JUSTICE GIUDICE: Thank you, Mr Wheelahan. Mr McKeown?

PN113

MR MCKEOWN: Thank you, your Honour. As I understand my learned friend, his submissions are that he only relies on the ground 2 in effect - - -

PN114

MR WHEELAHAN: No.

PN115

MR MCKEOWN: I've put that too high? Well, then I'll retract that. I will start off in terms of could I just clarify with the Full Bench that there has been a provision of a folder with cases, tabs 1 to 8?

PN116

JUSTICE GIUDICE: Yes, thank you.

PN117

MR MCKEOWN: I'd like to start, if I could, because it does set the factual context of this matter which in my submission is very important in terms of the type of case that the Commissioner was dealing with. My learned friend tries to assert that, well, for that very reason, there is a need for the determination by way of evidence that an arbitration must take place. In my submission, that's clearly wrong. It loses sight of the fact as to the very reason why you have section 170CF in the Act. It's in the Act because it is to dispose of the proceedings which the Commissioner or other member of the Commission views has great difficulties in succeeding at arbitration. It is a method by which the process can be short-circuited to ensure that the Commission is not clogged up with unnecessary applications, particularly in the case of terminations at the initiative of the employer.

PN118

If I take the Full Bench to the decision in Mosey v Australian Customs Service, in that particular decision, your Honours and Commissioner, we had a situation where Mr Andrew Mosey, to put it politely, was in the habit of growing certain crops which are considered illegal under certain legal jurisdictions, and made admissions. The case turned in effect that there was an argument about procedural fairness and that it was in relation to - and that's at page 7 of the decision. It refers to the leave principles that the Commission is required to undertake. More importantly, it describes the principles that have been enunciated over a series of cases in terms of how one approaches terminations at the initiation of the employer.

PN119

The most important one I wish to emphasise to the Commission, as I'm aware because of the nature of the Full Bench and the experience involved, I don't need to go through in any depth the decisions referred to at pages 7, 8 and 9, but I do rely on what is said in terms of the Full Bench in the Austar decision commencing at the bottom of page 9. Because in my submission, it is quite important in the context of the matter that was before Commissioner Raffaelli. It is said there:

PN120

The Full Bench in Austar also cited with approval, in that context, the last sentence of an observation made ...(reads)... the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee.

PN121

In my submission, that's the situation in terms of the context of this particular matter:

PN122

Rather than that of the employer that gives rise to the termination, remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is an immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure the employer's conduct said to have been the principal contributing factor in the resultant termination of employment is weighed objectively.

PN123

The test is not what the applicant himself might see as his own subjective reason as to why he resigned, the test is the objective analysis of the facts. In my submission, you clearly have a letter of resignation signed by the applicant and tendered. It's not a situation - and this would have been apparent to Commissioner Raffaelli, we're not talking about a situation as in the Reinberger's case of the heat of the moment reaction. Here we have a calculated decision, a letter which is quite clear in the sense, and despite my learned friend's assertions that it has qualifications, in my submission quite clearly the applicant made the decision to resign. There is obvious - in terms of other methods by which the applicant could have taken that he had serious issues about Occupational Health & Safety, in terms of bringing it to the employer's attention.

PN124

More fundamentally, the applicant doesn't seek reinstatement, and again that was before Commissioner Raffaelli. What I say is that it must be seen in the context of dealing with a case in which the argument is, to put it in North's words in ..... I think, whether he was pushed or did he jump? In terms of what we say, your Honours and Commissioner, is that the very nature of the case before Commissioner Raffaelli would cause him to analyse the situation and it was recognised, in terms of that - and I think it is in the Mosey decision, that what is recognised there is what is referred to a practical gloss in which the Commission can give to termination of this nature.

PN125

That is based, in my submission, on the experience of the Commission in dealing these types of applications, that we have a situation where - that's at page 9 of the Mosey decision, Mosey v Australian Customs Service 116 IR 1 at page 9, in which the Commission, after having a discussion about the Full Court's analysis of the Mosey decision, went on to say:

PN126

The points touched upon by Dowsett J -

PN127

- who was in the minority in the judgment of the Full Federal Court decision. This involved the Hale v Australian Industrial Relations Commission, Full Court decision, your Honours and Commissioner, commencing at page 7 of the report, but I wish to take you to the bottom of pages 8 and 9:

PN128

The points touched upon by Dowsett J were not argued in the submissions put on this appeal. We have no reason ...(reads)... to those principles by the Commission and applying them to particular cases should not be overlooked.

PN129

In my submission, that's quite clearly the case here in terms of Commissioner Raffaelli. It's not as my learned friend would submit, well, in my submission, terminations at the initiative of the employer are not simply - can be drawn analogous with constructive dismissal cases. What is being recognised by Full Benches of this Commission and recognised in the Mohazab decision is that it is looking at the actual statutory context in which it is placed in, and the conventions. It's not simply a say of, "Well, you have to have a repudiation of contract." In my submission, even on the grounds of repudiation of contract, they haven't been made out in this particular case. It's clear when you look at the Mosey analysis of these principles that applied in terminations at the initiative of the employer, clearly it cannot be said on the material before the Commissioner, in my submission, that the applicant had no choice but to resign in terms of the situation.

PN130

What we further say is that the Commissioner did correctly apply the principles associated with the application of 170CF. You have been taken to those principles, but I refer the Full Bench again to the analysis of the principles at page 354 of the Wright decision. If one looks through that analysis, at the time when that particular decision was made, these were relatively new provisions. So this was an important decision in terms of setting the principles to be applied. When one goes through the principles there, the new provisions impose the following additional obligations on a member of the Commission:

PN131

Once the member is satisfied that all reasonable attempts to settle the matter by conciliation are or are likely to be unsuccessful so far as concerns at least one ground of the application.

PN132

Clearly, the best person to be in the position, in my submission, to make a decision as to whether the conciliation has been exhausted is the Commissioner himself. The Commissioner has considerable experience in this Commission and he's dealing with a case that does very much deal with the situation of a black and white difference. One party is saying they resigned, and the other party is saying they didn't, saying they were forced to it. In my submission, clearly he was in the best position and in accordance with the common law tests, in terms of taking the position of the applicant at its highest, the letter which has been objected to and I obviously accept the ruling by the Commission in terms of it, but what I do say about that letter is, it is a self-serving document, but accepting it's a self-serving document, it adds weight to the respondent's case in this matter because the Commissioner has got every point the applicant wishes to make in support of their case.

PN133

If one goes through that letter, the Commissioner had before him those issues we say assert that he didn't fully conciliate, and again, I would submit to the Full Bench that clearly that is an erroneous assumption, particularly considering the nature of this particular application and the length of experience of the Commissioner involved and the practical gloss that he can give to making or coming to a view with regard to the test to be applied. That test, remembering, your Honours and Commissioner, is not what the respondent has to submit, or submissions made by the respondent; the test is should it be summarily dismissed, whether the substantive application has no reasonable prospect of success. It's submitted the Commissioner did have before him, at its highest, what the applicant says is its case, and he didn't accept it.

PN134

Quite clearly, in terms of - and when it is said that part of the criticism being, that well, he didn't separate the parties. Conciliation processes are, by their very nature, a moving beast. There's no set rules. There's no - - -

PN135

JUSTICE GIUDICE: A moving beast or a moving feast?

PN136

MR MCKEOWN: Well, it depends if the sword of Damocles is over you, but I would say a beast at times and a feast at other times. It's not a structure in which one has fixed rules and which one automatically assumes that there's going to be a separation of the parties. Because what that ignores is the practical reality of the factual situation that the Commissioner was dealing with. It is not unusual in terms of if the - for a situation of parties not to be separated, in terms of it. In my submission, when one goes through, again falling back to the principles, the Commissioner correctly applied his statutory duties under the Act. He did request for further information, as he's required to do so, but more importantly, your Honours and Commissioner, the Commissioner put them on notice in terms of, "Look, my preliminary view is this", and this is in terms of his letter of 12 April in which, as he's required to do so, he states in his first paragraph in the final part of the sentence:

PN137

The Commission further considers, having regard to all the materials before it to date, the application has no reasonable prospect of success at arbitration.

PN138

He is clearly putting him on notice in terms of what his view is. He then receives - let's put it at their highest - what they say is all of their best points in terms of their case. Having received that, and in my submission, despite what's being said, it is still a reading of the Act can be that their letter - and I understand what Commissioner Cribb said in terms of the final sentence, but in my submission, what they were really saying is, "Look, we don't have to provide you further reasons. We've already done enough and here we'll go back again and elaborate on those reasons." In my submission, when you read the section of 170CF(4), it can be that the certificate is competent is either (a) or (b). It's both barrels, in effect.

PN139

The applicant does not provide further information, but then the Commissioner does recognise in terms of the certificate that he's looked at the further information. In my submission, quite clearly he has complied with his statutory obligations. There is no requirement under the Act, and that should not be ignored in terms of the fact of a requirement for reasons. If the Parliament intended for reasons to be given, they would have stated it in an obvious manner. That's not the case and it's recognised in the Wright decision that reasons do not necessarily follow in terms of the issue of a certificate. It is also important, in my submission, that when dealing with what this is drawn the analogy with in terms of the common law tests to be associated with interlocutory proceedings, that quite clearly, this is not a situation where the Commissioner is expected to decide on issues of facts on the evidence.

PN140

It's not appropriate. The whole purpose of the issuing of a certificate, in my submission, is for the dismissal of the summary nature given the high test that's involved, but in my submission, the other material that the Commissioner had before him was the Full Bench's decision in Wright. So it cannot be assumed, and in my submission it can be inferred, that he had the benefit of the Full Bench's decision in Wright's case, was aware of the principles associated in terms of it. More fundamentally, in my submission, it was the applicant who could have chosen, of course, to seek reasons under Rule 46 and chose to decline - yes, seek reasons for the decision.

PN141

It is submitted, your Honours and Commissioner, that clearly when one applies the appeal principles applicable, and this is in terms of the decision of - it's tab 2 of the folder, your Honours and Commissioner, the decision of Harry Vdoukakis v D J Cussan, Print PR949780. In terms of the principles and they start at paragraph 14 of the decision, in terms of as in this case an appeal under Part VIA of the Act being governed by 170CJ, in terms of 170CJ(2):

PN142

The avoidance of doubt and appeal to the Full Bench under section 45 in relation to an order made by the Commission under sub-Division B of Division 3 may be made only on the grounds the Commissioner was in error in deciding to make the order.

PN143

Then, without going through those principles, because I realise the Full Bench is considerably conversant with them, I do say that this is a discretionary decision and it's not affected by any errors of the type identified in the House v King which is referred to in paragraph 16 of the decision. We say that in terms of the issue of leave to appeal, that there is no grounds that are being submitted that are sufficient to warrant the granting of leave to appeal. It cannot be said on public interest grounds. This is really a discretionary decision made by the Commissioner on the facts before him. It doesn't lead to any area of principle and in my submission, in accordance with the principles enunciated by the Full Bench in Westend Pallets Pty Ltd v Lally, a decision of former Ross VP, Williams DP as he then was and Commissioner McDonald (1996) 69 IR, one that in essence in terms of leave to appeal should not be granted readily.

PN144

It is a matter in terms of which - and the relevant extract, your Honours and Commissioner, would be at page 12. Unfortunately, I don't think it was included in the folder of documents, through my omission not through my instructors, but what the Full Bench does indicate there:

PN145

In our view, leave to appeal should not be granted unless the appellant can satisfy the Commission that there is an arguable case, that the member at first instance has either made a legal error or acted upon a wrong principle giving weight to irrelevant matters, failed to give sufficient weight to relevant matters, or making the statements of the facts or that the decision was plainly unreasonable or unjust.

PN146

In my submission, none of those exist in terms of Commissioner Raffaelli's decision to issue the certificate in this matter. He did have the documentation before him in terms of the letter of resignation, in terms of the applicant not seeking reinstatement, in terms of what we say is the self-serving letter of 13 April, but even taking it at its highest, which is one of the tests associated with determining whether a summary dismissal can take place, he had all of that material and he issued the certificate which was open to him and he complied with his statutory obligation. In terms of the specific grounds raised on the appeal notice, your Honours and Commissioner, in terms of ground (a) there, clearly we say that he was in the best position to judge in terms of whether there was any reasonable prospect of success. There is no error in terms of what is being submitted there.

PN147

In terms of (1)(a), again in my submission the Commissioner did proceed through the normal conciliation process and each Commissioner has their own style and method by which they conduct their conciliations. In terms of (b), I would submit that it is simply a nonsense to suggest that a Commissioner of this Commission would be hindering the prospect of a successful conciliation. And the same in terms of (i) through to (v), in my submission there is simply no evidence to support such assertions, except the self-serving document in terms of the solicitor's response dated 13 April, marked W1. In terms of, again, really the grounds (2), (3) and (4), in my submission it was clearly open to the Commissioner on the material he had before him to issue the certificate and none of those grounds have been anchored in any way to any evidence that could justify a quashing of the certificate.

PN148

Finally, I would say to the Full Bench that if they are in some way persuaded by the submissions of my learned friend, I would submit in the alternative that a proper course would be, as opposed to a quashing of the certificate, for the matter to be referred back to Commissioner Raffaelli, and a request, as I understand there was some jurisdictional dispute taken, for reasons from him - and there has been precedent for that in terms of the Commonwealth Bank of Australia v Andrew Heat, a Full Bench decision, Print PR920556. In that particular decision, the Full Bench decided that a way of proceeding was to ask her Honour to give reasons for the decision not to disqualify herself. They are the submissions on behalf of the respondent. Thank you, your Honours and Commissioner.

PN149

JUSTICE GIUDICE: Thanks, Mr McKeown. Mr Wheelahan?

PN150

MR WHEELAHAN: Just briefly in reply, it was said in the opening that section 170CF disposed of the proceedings and my quote is where there's great difficulties in succeeding at arbitration. That, of course, is not the test. It's manifestly untenable. My learned friend said that the applicant made a calculated decision. Again, the very reason why we have a contested issue that should be the subject of sworn evidence. He's making submissions to this Full Bench about the resignation letter as being a calculated decision. Thirdly, he has repeatedly made a submission that because the applicant doesn't seek reinstatement, that that somehow is a relevant matter of fact to take into account when determining whether or not this was a forced resignation or not.

PN151

I merely note in passing again one reason why reinstatement might not be sought is the allegation that he was assaulted as set out in W1; again, a matter for sworn evidence. Fourthly, my learned friend said, well it cannot be said that the applicant had no chance but to resign in terms of this situation. That's the submission being made. Well, the appellant says, yes, it can and we therefore have a contest and we have a real issued to be tried in terms of the type referred to at paragraph 26 in the decision of Wright. As to the principles being applied, it is of course the case that the Commissioner fell into error in applying the principles as are set out in Wright, and in particular at paragraph 32.

PN152

Finally, as to the leave to appeal and public interest, I rely on the notice of appeal and in addition to that, it is in the public interest that the issue of what material can be tendered in an appeal such as this and the very acceptance of the tender of W1 makes this a case where it is in the public interest that leave to appeal be granted. If the Commission pleases.

PN153

JUSTICE GIUDICE: We might, simply for completeness, mark the letter which accompanied the application. It's a letter signed by Mr O'Meara dated
6 February 2006 on NUW letterhead.

EXHIBIT #W3 LETTER SIGNED BY MR O'MEARA ON NUW LETTERHEAD DATED 06/02/2006

PN154

JUSTICE GIUDICE: Thank you, gentlemen, for your submissions. We shall reserve our decision. We will now adjourn.

<ADJOURNED INDEFINITELY [11.59AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER TO COMMISSIONER RAFFAELLI FROM APPLICANT'S SOLICITORS DATED 13/04/2006 PN95
EXHIBIT #W2 LETTER TO APPLICANT'S SOLICITORS FROM COMMISSIONER RAFFAELLI DATED 12/04/2006 PN99
EXHIBIT #W3 LETTER SIGNED BY MR O'MEARA ON NUW LETTERHEAD DATED 06/02/2006 PN153