C2007/2205, Transcript of Proceedings [2007] AIRCTrans 111 (13 March 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16547-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER WILLIAMS

C2007/2205

APPEAL BY ELIZABETH HARVEY
s.120 - Appeal to Full Bench
(C2007/2205)

CANBERRA

11.05AM, THURSDAY, 22 FEBRUARY 2007

Reserved for Decision

PN1

MR J O’KEEFE: I seek leave to appear for the applicant.

PN2

MR A MOSES: I seek leave to appear on behalf of the respondent in this matter, appearing with MS M TRIPLETT instructing solicitor.

PN3

JUSTICE GIUDICE: Mr O’Keefe?

PN4

MR O’KEEFE: Your Honour could I start by seeking to tender the additional evidence which I filed in each of the events that you should have a copy of.

PN5

JUSTICE GIUDICE: That’s the statement with the two attachments?

PN6

MR O’KEEFE: Yes, that’s right.

PN7

JUSTICE GIUDICE: I understand from an outline filed this morning you have objection to that Mr Moses, is that right?

PN8

MR MOSES: Yes, your Honour we deal with that at paragraphs 40 to 48 of the submissions which were lodged with the Commission.

PN9

JUSTICE GIUDICE: Yes, well perhaps we’ll ask Mr O’Keefe to outline why we ought to accept the evidence and then we’ll hear from you Mr Moses.

PN10

MR MOSES: I might just provide your Honours and the learned Commissioner with the bundle of the respondent’s authorities which has within it the case that’s referred to at paragraph 41 which appears to set out the principles in paragraph 42, the principles that the Commission will take into account pursuant to exercising its discretion to allow new evidence pursuant to section 120 subsection(6) of the Act.

PN11

JUSTICE GIUDICE: Yes, thank you.

PN12

MR O’KEEFE: Yes your Honour. Well the statement contains evidence of three things that the applicant considers the Commission should have regard to in reviewing the decision. There is information about, that one of the grounds that the Vice President Lawler, that justified the termination was an incident involving a colleague where she asked him to “score some dope” for her. One aspect of this new evidence is that evidence from my client that at the relevant time the alleged employee was not actually an employee he was just someone that she knew.
That evidence would change the result if it was accepted. It would certainly change the result on that particular ground.

PN13

JUSTICE GIUDICE: Well I suppose one of the issues we have to consider is whether or why such evidence wasn’t called at the time.

PN14

MR O’KEEFE: I’ve touched on this in my submission but the drug allegation, if you like, against my client, was first raised in the hearing itself. Not a lot of time was devoted to it, and I have to admit no one at the time seemed to take it all that seriously. His Honour didn’t indicate that he prime facie accepted it as a new ground and we were quite surprised when we finally saw his Honour’s reasons, to see that he actually made that his main reason for justifying her termination. Had we been – had a greater awareness of the significance of these allegations in the middle of the hearing and we have described it as an ambush, perhaps more attention would have been paid. There are two other things that are attached - - -

PN15

JUSTICE GIUDICE: Mr O’Keefe wasn’t it part of the respondent’s case that’s these requests had been made?

PN16

MR O’KEEFE: They made it part of their case mid way through the trial.

PN17

JUSTICE GIUDICE: But it was – wasn’t it in evidence, that was in a witness statement?

PN18

MR O’KEEFE: It was in a witness statement. There were a lot of things in witness statements which didn’t necessarily go to issues before the Commission. In addition to that little piece of evidence, there are two other attachments to the statement. One is a speech by the CEO of the respondent which discusses her drug use and it also contains an admission that she doesn’t – isn’t always open about her drug use. There’s a second document called Being Blood Aware, which is a policy document from the respondent which highlights, I guess, the attitude of the respondent to drugs.

PN19

If I can deal firstly with the speech Private Lives Public Policy that goes to credit and credit became a big issue in the case. Why wasn’t it raised at the time? My client has since found it on the website, I don’t think she knew about this speech prior to the hearing. The policy document we are seeking to tender that to try and assist the Commission to understand the culture of the respondent. Having read his Honour’s reasons, it appears that his Honour seems to have taken the view that perhaps there was a zero tolerance to drugs at AIVL, the respondent. When in fact, the opposite is true. It is an agency which supports the right of its members who are drug users to take drugs if they want to.

PN20

I think that policy document is tendered as evidence of that attitude. Again, the reasons for tendering that document, is that we weren’t aware until we say his Honour’s judgment that his Honour had in our respectful submission misconstrued the culture of the respondent.

PN21

JUSTICE GIUDICE: It couldn’t be said that the respondent encourages drug use, could it?

PN22

MR O’KEEFE: In fact, I think you – one probably could say that your Honour. It’s call the Australian Injecting Drug Users – or its full title is more complicated. It’s an organization that represents injecting drug users and its objectives – zero tolerance is not its objective and it supports the right of drug users to take drugs. We are not passing any judgment on AIVL for having that point of view, its just that in our submission for an organization like that to dismiss an employee over a minor discretion involving cannabis is hypocritical and in the circumstances a harsh decision because it is quite disproportionate to the conduct and in a culture where drug use is not discouraged.

PN23

SENIOR DEPUTY PRESIDENT RICHARDS: Mr O’Keefe I want to take you back to your first statement of your continuing your submission of this additional evidence and that was over establishing that I think it was that Mr Van den Dungen, was an employee?

PN24

MR O’KEEFE: No he wasn’t an employee.

PN25

SENIOR DEPUTY PRESIDENT RICHARDS: No, he wasn’t an employee. Can I just take you to paragraph 1906 of the transcript. I’m just wondering whether you might be able to explain to me what the nature of that exchange was, and I presume it was between yourself and the Vice President about the status of that.

PN26

MR O’KEEFE: It was an exchange between myself and the Vice President, or was it my client who was answering?

PN27

SENIOR DEPUTY PRESIDENT RICHARDS: It’s just not evident to me from that - - -

PN28

MR O’KEEFE: I think it’s my client responding because it’s information that I wouldn’t have - - -

PN29

SENIOR DEPUTY PRESIDENT RICHARDS: Yes, so it’s during your cross-examination – sorry it’s - - -

PN30

JUSTICE GIUDICE: It’s Ms Madden isn’t it?

PN31

MR O’KEEFE: Actually it could be Ms Madden answering.

PN32

SENIOR DEPUTY PRESIDENT RICHARDS: Ms Madden answering whilst she’s under your cross-examination and this points to a question from the Vice President.

PN33

MR O’KEEFE: It’s not disputed that Mr Van den Dungen became an employee, it’s just that at the relevant time this cannabis allegation occurred my client contends that he wasn’t an employee. He became an employee at some later time.

PN34

SENIOR DEPUTY PRESIDENT RICHARDS: It’s just that it occurs in confluence with a cross-examination of that relevant issue about the - - -

PN35

MR O’KEEFE: It’s quite possible that I didn’t cross-examine Ms Madden as thoroughly as I should have on that issue because I may not have had instructions about Mr Van den Dungen’s employment status at that time.

PN36

SENIOR DEPUTY PRESIDENT RICHARDS: Even so it was a matter established previously was the last paragraph of the evidence, that was – was accepted in relation to that articulation regarding Mr Van den Dungen.

PN37

MR O’KEEFE: I’m sorry I don’t - - -

PN38

SENIOR DEPUTY PRESIDENT RICHARDS: Well the issue was in the original evidence that was accepted.

PN39

MR O’KEEFE: Yes.

PN40

SENIOR DEPUTY PRESIDENT RICHARDS: Then there was a cross-examination – then Ms Madden was cross-examined on the issue and in the course of that cross-examination the employment status of Mr Van den Dungen was raised.

PN41

MR O’KEEFE: I guess that my client’s new evidence could be seen to contradict that earlier evidence. I don’t know that we can say that the issue was properly tested, but there may have been indirect reference to his employment status in the course of evidence being given. That is my submission on whether further evidence – leave should be granted. I do reserve a right of appeal after having heard my learned friend’s submissions.

PN42

JUSTICE GIUDICE: Yes, Mr Moses.

PN43

MR MOSES: Yes, your Honours and Commissioner, I won’t repeat the submissions that are made in writing at paragraph 40 to 42, relating to the principles to be applied in respect of the exercise of discretion to admit fresh evidence. Those matters were dealt with in a Full Bench recently in the Brazilian Butterfly, which is at tab 6 of the bundle of authorities which have been provided to the Full Bench. Paragraphs 18 and 19 of that judgment of the Full Bench, in our respectful submission, makes it clear that the Full Bench adopted the following principles as a guide for the exercise of the discretion to admit fresh evidence.

PN44

They are that firstly whether or not the Full Bench can be satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial unless the party against whom the evidence is sought to be admitted has been guilty of fraud. Secondly, the evidence is such that there is a high degree of probability that the result of the proceeding below would have been different had it been received at the trial. Thirdly, the evidence is sufficiently credible, these requirements are punitive.

PN45

In the Dunn decision which is behind tab 7 at paragraph 12, it was noted by a Full Bench there, that the Commission was generally reluctant to admit new evidence on appeal. The fact that a party made an error in first instance, in failing to adduce evidence is no ground to adduce fresh evidence on appeal. I just wish to elaborate upon some of the actual assertions that my learned friend has made this morning. We’ve sought to deal with the substantive submissions in response to the application at paragraphs 43 to 48 of the submissions. I won’t read those, but I wish to point out to the Full Bench what appears in volume 1 of the respondent’s appeal papers at page 135 PN1583.

PN46

This relates to the allegation that the appellant asserts that somehow they were taken by surprise as to the manner in which the allegation concerning the appellant’s request for an employee of her connection to obtain drugs for her, being taken into account by the learned Vice President, was a matter that was not only contained within the statement of the relevant employee, which was filed in the proceedings, and which was marked as exhibit D, but relevantly it formed part of the opening of the respondent’s case prior to it going into evidence. That is dealt with at the bottom of page 135 and continuing to page 136.

PN47

JUSTICE GIUDICE: Page 135 of the appeal book?

PN48

MR MOSES: Yes, your Honour I apologise, that’s volume 1 and the matter is dealt with up to PN1586. So we would respectfully submit that it is not - - -

PN49

JUSTICE GIUDICE: Mr Moses I’m sorry I’m having a little bit of trouble with these references.

PN50

MR MOSES: There’s a document, there’s a folder your Honour called the respondent’s appeal papers volume 1. I think there have been two appeal books which have been filed. The appellant filed an appeal book which wasn’t complete.

PN51

JUSTICE GIUDICE: I follow, thank you.

PN52

MR MOSES: Those instructing me then filed what’s called the respondent’s appeal papers, which has been accepted as being complete.

PN53

JUSTICE GIUDICE: Yes, thank you.

PN54

MR MOSES: It’s the completed appeal book by the appellant as well.

PN55

MR O’KEEFE: I have no objection to the Commission using the respondent’s appeal book in substitution for ours, so it is more complete.

PN56

JUSTICE GIUDICE: A few pages missing from the transcript I notice.

PN57

MR O’KEEFE: We only pulled out the bits that we thought were relevant.

PN58

JUSTICE GIUDICE: Yes, very well.

PN59

MR O’KEEFE: But it may be more useful to the Commission to have the whole thing in front of it.

PN60

JUSTICE GIUDICE: Yes.

PN61

MR MOSES: I apologise your Honour it is page 135(d) volume 1 of the respondent’s appeal papers and your Honours and the Commissioner will note that we deal with that at the bottom of page 135 at PN1583 moving on to page 136 up to and including PN1586. We respectfully submit that it cannot be submitted to this Full Bench that it wasn’t a matter that the appellant was on notice of as forming part of the respondent’s case. It was a matter that was not only in evidence, it was admitted into evidence before his Honour. But it was evidence that was served on the appellant prior to the hearing commencing in a matter that was pressed in final submissions.

PN62

JUSTICE GIUDICE: This is your opening?

PN63

MR MOSES: It is your Honour.

PN64

JUSTICE GIUDICE: After the evidence had been called from the applicant?

PN65

MR MOSES: Yes, your Honour, after the appellant had closed her case in proceedings below. We then opened in short form at pages commencing at page 131. Dealing if I can then to the admission of the evidence concerning the allegation concerning the possible alleged drug usage of one of the respondent’s witnesses, it’s executive. We’ve dealt with that argument at paragraph 45 and we don’t seek to repeat those submissions for present purposes. In respect of the issue concerning the attitude to drugs document, we’ve dealt with that at paragraph 46 and we’d only be repeating the submissions there.

PN66

But the end result is that this Full Bench should not allow the fresh evidence to be tendered. There’s been no evidence led we respectfully submit on behalf of the appellant that in any way advances the proposition that this evidence could not have been obtained with reasonable diligence adduced at the trial and in any event it would not result in the outcome of the proceedings having been altered, ie the dismissal of the application. That is all I wish to say.

PN67

JUSTICE GIUDICE: Mr O’Keefe?

PN68

MR O’KEEFE: I’ll make a brief reply. The test that my friend has referred to in the written submission I would submit with the High Court’s decision ion Coal and Allied Operations where it made it quite clear that the Commission is a – appeals to the Full Bench are by way of rehearing and the Commission can hear further evidence including evidence of matters that have occurred since the provisional hearing.

PN69

JUSTICE GIUDICE: Well the question is what guides the exercise of that discretion to hear fresh evidence?

PN70

MR O’KEEFE: What guides it?

PN71

JUSTICE GIUDICE: Coal and Allied deals with that, does it?

PN72

MR O’KEEFE: It doesn’t deal with it directly.

PN73

JUSTICE GIUDICE: No.

PN74

MR O’KEEFE: But the test that is quoted – the test that’s used in the Brazilian Butterfly case is taken from Hallsbury’s and I would submit that that is a test that is more applicable to one of appeals strictu sensu than an appeal by way of rehearing. But leaving aside the test for one moment, I would submit to your Honours, that there are three pieces of evidence. There is the evidence about whether Mr Van den Dungen was an employee. There is the evidence in the form of the speech given by Annie Madden, which is attachment A and there is the evidence of drug policies at AIVL at attachment B and it’s not necessary for your Honours to accept or reject all three pieces of evidence, in fact, your Honours, sorry the Commission to decide to accept for example that the attachment B and exclude the statement of my client. Or exclude the evidence about John Van den Dungen. I mean there is more than one piece of evidence there.

PN75

The Commission may decide to exercise its discretion in regard to one piece of the evidence but not in regard to another piece. So certainly I accept the point that my client’s evidence about John Van den Dungen does appear to contradict matters that may have already been raised in the hearing. I still think it’s an important point. If your Honours did accept that evidence that my opponent wanted to lead their own evidence about the point, we would be agreeable to that course. The other two items are new matters that weren’t before the – properly before Vice President Lawler.

PN76

Were they available at the time of the hearing? Yes, were we aware they were issues at that time? Strictly no. So basically that’s our position on the tendering of the further evidence. It is a complex issue.

PN77

JUSTICE GIUDICE: One of the issues for us Mr O’Keefe is that significant consideration in the system of appeals is that parties don’t simply get another chance to run a case better than they ran it first time round. By better I’m not intending any disrespect. But things - - -

PN78

MR O’KEEFE: Fell through the cracks or?

PN79

JUSTICE GIUDICE: Yes, weren’t dealt with and if we accepted that approach then there’d be a lot more appeals and they’d take a lot longer. But in light of that observation is there anything about this case in particular which you think we should take into account?

PN80

MR O’KEEFE: About the additional evidence or this?

PN81

JUSTICE GIUDICE: Well about as it were, reopening the evidence on appeal when there were opportunities to discover or to adduce the evidence in the original hearing?

PN82

MR O’KEEFE: Only that – well there are three things and they all relate to different issues in the case. The first one go to the drug issue which became a much bigger issue in his Honour’s reasons than the applicant could have possibly have foreseen. Notwithstanding that it was raised by the respondent in their opening.

PN83

JUSTICE GIUDICE: I think you cross-examined on the issue of how important the request for marijuana were?

PN84

MR O’KEEFE: Yes, there was cross-examination. The issue of the culture of AIVL. His Honour’s reasons suggests that AIVL has a culture which is quite opposite to the culture it actually has and that’s the attachment B to my client’s fresh evidence. Until we saw his Honour’s reasons we possibly wouldn’t have known that his Honour had been mistaken about that issue. I can’t really add anything more.

PN85

SENIOR DEPUTY PRESIDENT RICHARDS: Mr O’Keefe is that to mean when you say mistaken - please explain exactly what you mean by mistaken.

PN86

MR O’KEEFE: Well I address it at paragraph 15 of my submission – outline of applicant’s submissions. I’ve said there:

PN87

His Honour did not fully take into account the nature of the employer. Australian Injecting and Illicit Drug Users League is not an advocate for drug rehabilitation nor an absence based organization. In this regard the applicant seeks to rely on further evidence concerning the culture of AIVL.

PN88

SENIOR DEPUTY PRESIDENT RICHARDS: This is in relation to the matter so there are several matters, and that’s one of the issues?

PN89

MR O’KEEFE: Yes.

PN90

SENIOR DEPUTY PRESIDENT RICHARDS: Thank you.

PN91

MR O’KEEFE: That’s where this ties in attachment B.

PN92

JUSTICE GIUDICE: Yes. Mr O’Keefe we’ve decided not to admit that evidence, we’ll give our reasons for that in due course, when we give our reasons in relation to the appeal as a whole. If you would like to continue with your submissions. We’ve read obviously the outline and you can proceed to make what oral submissions you think are appropriate with that knowledge.

PN93

MR O’KEEFE: In relation to the first ground, the abuse of process issue. The only thing I want to add to that is that this could be a situation where the Commission might decide to exclude evidence because it was improperly obtained, that’s at section 138 of the Evidence Act. I can hand that up if your Honours don’t have copies.

PN94

JUSTICE GIUDICE: Yes, thank you.

PN95

MR O’KEEFE: Section 138 gives a court or tribunal power to exclude evidence that was improperly obtained and quite often that’s evidence obtained by police in the course of investigation but it doesn’t have to be. In this particular instance there are a number of procedural irregularities in the way the evidence was obtained. In particular my client wasn’t warned that she didn’t have to give evidence of an incriminating nature. Now I didn’t take an objection but that doesn’t excuse the lack of a warning being given.

PN96

JUSTICE GIUDICE: That’s as to her admission?

PN97

MR O’KEEFE: Yes, in her admission when she was asked, did you ask John Van den Dungen to score some dope from you, she should have been warned. She wasn’t warned and that in my submission your Honours could choose not to accept that evidence because of that irregularity and the other irregularities I’ve pointed out in the submission. The second ground of the appeal, that one relied pretty much on the fresh evidence being admitted, so because that wasn’t admitted there’s nothing much more I can say on that particular ground.

PN98

JUSTICE GIUDICE: Well the ground remains though doesn’t it?

PN99

MR O’KEEFE: It does remain as there are other aspects to it.

PN100

JUSTICE GIUDICE: Yes.

PN101

MR MOSES: Your Honours can I just point out something that my friend just said. I don’t wish to interrupt him, but he may be under a misapprehension, in volume 1 of the respondent’s appeal papers, page 121 and 123 this issue of a warning arose. A question was asked at 1423 as to whether or not the appellant had read the evidence of that individual and answer was given at PN1424 and PN1425 again and PN1427. I then note at PN143 that in respect that I raised the issue about the warning to the witness before she gave that evidence. Now ordinarily the way in which the matter is dealt with in these matters are that the person acting in the interests of the witness would seek that certificate.

PN102

It is not a matter for the court to of its own motion seek a certificate to be issued in respect of the matter. That’s certainly the way that it operates in the Supreme Court of New South Wales in the way in which the provisions are applied, that it’s not for the court of itself to give the certificate but it’s a matter for the witness to seek that certificate. Now for whatever reason no objection was taken at the time to the asking of the question, but it was a matter that it was raised and your Honours will see in respect of the matter that an exchange happens there about whether or not the Commission is a court for the purposes of the Evidence Act, if this is an issue about that. I don’t think that it is, it’s certainly not contained in the definitions section as being a court for the purposes of the Evidence Act because it is not obliged to apply the rules of evidence.

PN103

The learned Vice President in his usual direct fashion made a statement there at PN1438 that he couldn’t imagine there would be any prosecution in this country that anyone is going to do anything with it quite frankly, probably an accurate observation. But the critical issue is that it’s the obligation of the person giving evidence or those acting for her, to seek such a certificate. But in any event there’s an issue about whether or not a certificate could be issued, because the Commission is not a court for the purposes of the Evidence Act. This is not required to apply the rules of evidence but I just wish to draw those two passages to the attention of the Commission during the course of my learned friend’s submissions.

PN104

JUSTICE GIUDICE: Just before you finish. I thought you said there were two passages, 121 and 123 Mr Moses, when you initially rose?

PN105

MR MOSES: Page 123 and 124 I meant to say.

PN106

JUSTICE GIUDICE: 121 and 122?

PN107

MR MOSES: 122, I’m sorry pages 121 and 122.

PN108

JUSTICE GIUDICE: Yes Mr O’Keefe you can resume.

PN109

MR O’KEEFE: The non warning about self incrimination wasn’t the only procedural irregularity. I mean I point out a number there and I would suggest that before I move on to the – I thought I had moved on but I will come back to the first ground because my friend has led me there. But the whole ground about the marijuana indiscretion asking an allegedly fellow employee to buy marijuana for her outside of work hours, I might add, that was never in dispute.

PN110

When a new ground comes up like that and I think that Vice President Lawler relied on Australian Meat Holdings as authority for adding new reasons for termination after you’ve already sacked someone and I don’t dispute that. What I do dispute is how you raise those in the middle of a hearing.

PN111

JUSTICE GIUDICE: Yes, you are talking about the process by which - - -

PN112

MR O’KEEFE: Yes, the process of raising in the middle of a hearing and that didn’t happen in Australian Meat Holdings. The new information was – the new reason for termination was given before the actual hearing. If it comes up in the middle of a hearing I would have thought there needs to be some sort of process for alerting the applicant that that is in fact, that is something that needs to be addressed. For example, like a prima facie finding, or some indication from the presiding Commissioner that it is being accepted as a new ground.

PN113

That didn’t happen in this case, and that’s why we say we were ambushed by it. It was raised and yes, there was an adjournment in the middle of the hearing but without being told you need to address this we weren’t in a position to know that it was going to become such a big issue. I will just go quickly to ground two as I said to some extent that ground depended on the new evidence which your Honours haven’t accepted, but I do just want to draw your attention to page 1144 of the appeal book.

PN114

JUSTICE GIUDICE: Volume two is it?

PN115

MR O’KEEFE: Yes, that’s the stay in the John Van den Dungen. It just indicates in paragraph 1 when he became an employee of the connection or of the respondent and that was October 2004. My client in her own testimony had said she’d stopped smoking marijuana before she became pregnant and she was already pregnant by that. Anyway if I could move on to the third ground. Regardless of whether Mr Van den Dungen was an employee at the time we submit that that doesn’t justify our client’s termination. In the ACT, cannabis has been decriminalised and I’ll explain what that means.

PN116

SENIOR DEPUTY PRESIDENT RICHARDS: A certain amount has been decriminalised.

PN117

MR O’KEEFE: Sorry?

PN118

SENIOR DEPUTY PRESIDENT RICHARDS: A certain amount has been decriminalised.

PN119

MR O’KEEFE: That’s right yes, I’ll explain what that means. I’ll hand up section 171(a) of the Drugs of Dependence Act. That allows for offence notices to be issued and they are not summons or charges they are in effect like traffic tickets, an administrative notice, as an alternative to prosecution for small amounts of cannabis.

PN120

If a police officer reasonably believes that a person has committed a simple cannabis offence he or she may serve an offence notice on that person.

PN121

JUSTICE GIUDICE: They can grow one or two plants?

PN122

MR O’KEEFE: Yes.

PN123

JUSTICE GIUDICE: And you can possess not more than 25 grams.

PN124

MR O’KEEFE: That’s right.

PN125

JUSTICE GIUDICE: And it will only cost you $100.

PN126

MR O’KEEFE: That’s right yes, and you don’t get a criminal conviction.

PN127

JUSTICE GIUDICE: But it’s against the law though isn’t it?

PN128

MR O’KEEFE: Technically, technically.

PN129

JUSTICE GIUDICE: What do you mean technically.

PN130

MR O’KEEFE: There are offences and offences. If I park illegally in a corporate vehicle, is that a sacking offence.

PN131

JUSTICE GIUDICE: Traffic offences I suppose generally are regarded differently for whatever reason to criminal offences, they don’t carry criminal sanctions.

PN132

MR O’KEEFE: That’s right.

PN133

JUSTICE GIUDICE: That’s unless you don’t pay the fines.

PN134

MR O’KEEFE: And this is something akin to that.

PN135

JUSTICE GIUDICE: You say it’s in that order.

PN136

MR O’KEEFE: Yes, something akin to that, it’s because of the widespread use of cannabis the law has sort of tried to catch up, not by legalising it but by decriminalising small amounts of it.

PN137

SENIOR DEPUTY PRESIDENT RICHARDS: Can I say, it’s probably not quite the relevant moment Mr O’Keefe but there’s reference in transcript during the cross-examination of Ms Harvey, Ms Harvey’s awareness of a policy about the use of drugs in the workplace. Now it may just be me and I haven’t examined all the documentation thoroughly enough, is that policy available to the Bench? Is it relevant?

PN138

MR O’KEEFE: It could be relevant.

PN139

SENIOR DEPUTY PRESIDENT RICHARDS: I think I’m about to be taken to where it is. It is at 1419 I think.

PN140

MR O’KEEFE: 1419 is it? Okay your Honours also have to look at my questions in re-examination on that same issue.

PN141

SENIOR DEPUTY PRESIDENT RICHARDS: It’s just that I was interested to see the documents offered.

PN142

MR O’KEEFE: The actual document, oddly enough I don’t think it was ever actually tendered.

PN143

SENIOR DEPUTY PRESIDENT RICHARDS: No it wasn’t.

PN144

MR O’KEEFE: It was referred to but - - -

PN145

SENIOR DEPUTY PRESIDENT RICHARDS: It may be too general so – I’ve been distracted by it.

PN146

MR O’KEEFE: Yes, I’m just trying to find where I raised it in re-examination. Because that made it clear, I mean my client made it clear there that although she was aware of the policy, the policy wasn’t in force. My re-examination starts on page 123.

PN147

SENIOR DEPUTY PRESIDENT RICHARDS: It’s page 1543 of transcript and page 131 of volume one.

PN148

MR O’KEEFE: Yes, good thank you. I will turn now to the fourth ground. That ground doesn’t relate to any central issue to the appeal other than the question of credit of Ms Madden – sorry I withdraw that this is the issue of credit. His Honour, there was an issue about whether my client had applied for grants without authority. That was one of the reasons that his Honour accepted as providing justification for her dismissal. Ms Madden, the CEO and my client both gave different versions of what happened and his Honour found it necessary to make a finding of credit.

PN149

In his finding, he preferred the evidence of Ms Madden to that of my client. The point I’m making there is that the whole – the main reason that her credit came into question was about an actual funding application which she said she hadn’t signed and then we found another copy of it from the funder and her signature was on it. Now her credit was impugned on the very issue that his Honour deemed to make a finding of credit on, namely whether the applicant had been applying for grants without approval. Whereas the problems that he found with my client’s credit didn’t go to that issue. They were in my submission trivia.

PN150

Now I’ve cited Fox and Percy there as an authority for an appellant body being able to review a finding of credit. You don’t have the advantage of seeing the demeanour, but in my submission you don’t need to assess credit by looking at demeanour, you can look simply at the transcript and see the answers that were given on certain questions. Of course, if your Honours were to find that the evidence of my client should be preferred to that of Ms Madden that would knock out that other main ground of termination. Because there was basically just the three that his Honour found proven. One was the marijuana thing. The second one was applying for grants without approval and the third one was calling herself the manager when she wasn’t the manager.

PN151

Ground 5 is the finding he made that the CEO didn’t inject herself with marijuana at work. That was what I was referring to earlier when I said that that’s not an issue central to the appeal but it does go to credit. In my submission it wasn’t necessary for his Honour to really deal with that issue. It wasn’t fully tested in court and whether or not Ms Madden had used heroin at work wasn’t an issue before the Commission because she wasn’t being dismissed, it was my client that was being dismissed. Ground 6 as I said tied up with ground 4. I guess the written evidence doesn’t support the oral evidence of Ms Madden. She gave a lot of oral evidence about my client applying for grants without approval, but she didn’t come up with the written evidence, which is interesting given that grants are applied for in writing.

PN152

So we would submit that the written evidence exonerates my client and that that should be accorded greater weight than the oral evidence of Ms Madden. Ground 7 we are saying there that even if my client did, even if the Commission accepts that my client applied for a grant without approval, the respondent failed to indicate any actual detriment to the organization. It is not like she took money away from them, she obtained money for the organization in applying for those grants. While they talked about potential problems it might have caused. They never actually produced one concrete example of any harm, or detriment that that may have caused the organization.

PN153

SENIOR DEPUTY PRESIDENT RICHARDS: Sorry Mr O’Keefe I want to take you back – I’m sorry to be one step behind. But just on that issue of the preference given to – written in the submissions of the oral evidence - - -

PN154

MR O’KEEFE: Yes.

PN155

SENIOR DEPUTY PRESIDENT RICHARDS: There was an exchange during Ms Madden’s cross-examination, commencing at 423 where you actually say:

PN156

My understanding of it was that there were some areas where your Honour is going to have to make a decision about whether my client Ms Madden is being treated or not come down to credit.

PN157

The Vice President, his Honour says:

PN158

That’s right there is biometrically compatible evidence from the two witnesses.

PN159

Then there’s a discussion between yourself and his Honour about this issue of and about how it gets determined. I’m just wondering how that sits with your previous claim about how the evidence is given or not.

PN160

MR O’KEEFE: That wasn’t – that was just a comment, it wasn’t put as a submission and if it is read that, I withdraw the earlier submission. If your Honour considers that is a submission I withdraw.

PN161

JUSTICE GIUDICE: It may not be quite that simple because the issue is what was before the – for the purpose of deciding whether the Vice President made an error, I suppose he is entitled to rely on the submissions you made to him.

PN162

MR O’KEEFE: I see.

PN163

JUSTICE GIUDICE: I’m just making that point as a general point of course. I’m not ruling in any way on the significance of the submission you made there.

PN164

MR O’KEEFE: I honestly can’t remember making the comment, I did make it. I think it’s because his Honour had made a comment earlier about credit, so I perhaps was repeating something he’d said and I’m not suggesting that oral testimony should be ignored. With written evidence, with something like grants they are applied for in writing, they are granted in writing and yet the finding has been made based on oral evidence. The oral evidence of Ms Madden has been preferred over my client’s evidence and the absence of any written evidence.

PN165

Now the absence of written evidence, doesn’t mean there isn’t written evidence, that might support Ms Madden’s allegations, except that one would have thought that they would have produced it at the hearing. They produced so much other written material, but on this particular issue there was virtually no written evidence to support what she was saying.

PN166

SENIOR DEPUTY PRESIDENT RICHARDS: This is where there was the discussion about whether or not Ms Madden was of the belief she was signing a witness document for a grant for another purpose as opposed to a grant through the agency under the auspices of the - statement, is that the context?

PN167

MR O’KEEFE: Yes, that was one of the – yes that was where her credit came under attack. I think she used that as an example of a grant that had been applied for without the respondent’s approval and we produced a later copy of the document which we obtained from the funder, that showed that both signatures were on it.

PN168

SENIOR DEPUTY PRESIDENT RICHARDS: His Honour accepted pretty well what the - - -

PN169

MR O’KEEFE: His Honour accepted that both signatures were on the grant. His Honour noted that that caused some difficulties with credit, but he nevertheless preferred the evidence of Ms Madden.

PN170

SENIOR DEPUTY PRESIDENT RICHARDS: It was too, that she was evidently witnessing a document for another purpose.

PN171

MR O’KEEFE: I think she gave evidence to that effect.

PN172

SENIOR DEPUTY PRESIDENT RICHARDS: He preferred that oral evidence about the intent of that signature, that’s how it comes about?

PN173

MR O’KEEFE: I think so. We could go to his comments on that. Page 1254 it starts his discussion of credit, 1254 of the appeal book.

PN174

JUSTICE GIUDICE: The relevant paragraphs seem to be 49 and 50 where the question of the signature on the application are dealt with.

PN175

MR O’KEEFE: So he made two findings, one that she was merely witnessing the document rather than signing, but he also made the finding in the case of that particular application he didn’t find that it was made without the knowledge of consent or in breach of a direction. The question is well what example can they produce of a grant that my client applied for without their approval, what written example? I would, if they can, I would agree to tender that by consent with the Commission’s leave of course, but I wouldn’t object to leave being granted.

PN176

So I come to the next issue, even if the Commission finds that yes she did apply for grants without approval, is it a sacking offence. In my submission because no practical or real detriment was demonstrated that to sack her for that would be harsh in the sense that it is disproportionate to the gravity of the misconduct. I turn now to the issue about the manager. One of the reasons put forward by the respondent for terminating my client’s employment and indeed, one of the reasons which appears to have been accepted by his Honour was that she called herself the manager, when she was really just an officer, a project officer.

PN177

Now, the way that his Honour dealt with it, was to sort of tack it on the back of the grants one. If we go to paragraph 52 of his reasons on page 1257 of the appeal book. He says that he is satisfied on the basis of Ms Madden’s evidence that (a) she submitted applications for funding without approval and (b), represented herself as manager when she was not entitled to do so. Then in the next paragraph 53, he says:

PN178

I’m satisfied that the first of these reasons alone constitutes a valid reason for her termination.

PN179

Then of course, fails to say anything more about the manager issue, so in a sense he’s tacked it on to the issue about the funding. I guess the question is if your Honours were to find that my client didn’t apply for grants without approval, or that alternatively she did apply for the grants but it didn’t justify her termination, would that in itself, calling herself the manager, when she wasn’t the manager, would that of itself be sufficient grounds for termination and in my submission it isn’t. The evidence clearly demonstrated that she was the de facto manager of the connection which was a program run by the respondent.

PN180

Alternatively, if she was not supposed to call herself the manager and alternatively, I would argue that to sack someone for that is harsh. It is a harsh decision. I turn now to ground 9 which is procedural unfairness. His Honour found – his Honour accepted that they hadn’t complied with their own procedures for dealing with disciplinary matters. I will if your Honours turn to page 742 of the appeal book that contains the terms and conditions of employment with the respondent. They are quite detailed, on page 16 at the bottom, page 16 of that document, page 757 of the appeal book, disciplinary procedure, then on the next page, disciplinary procedure process.

PN181

These are the procedures that were referred to during the hearing as not having been complied with and I think it was generally conceded that they weren’t or accepted by his Honour that they weren’t complied with. There’s also something about a verbal or written warning on the following page. There’s also something about termination of employment on page 19 of that document. If one looks at the actual employment contract, there’s more than one contained in the appeal book, but the first one occurs on page 763 of the appeal book. It makes it quite clear in the employment contract that they are employed in accordance with the terms and conditions, for fixed term employees as outlined in the Australian Intravenous League Incorporated terms and conditions of employment.

PN182

So it’s clear and his Honour alludes to that in his reasons that there was a detailed disciplinary procedure incorporated into the employment contract. His Honour nevertheless found that although that procedure hadn’t been followed, that there was a procedural unfairness. In our submission because it’s in the contract, that makes it law. That the employer must follow the procedures that are in the contract. If they are not followed, that makes the termination unfair.

PN183

JUSTICE GIUDICE: Isn’t that what the High Court was warning against in Bryne and Frew that you shouldn’t mistake the procedure for the substance. Justice McCue in that case famously asked the question of counsel how much natural justice do you have to give a thief. I’m not suggesting there’s an analogy with this case, but the point he was making was, if the conduct is sufficiently serious how do you weigh that against a procedural failure in dealing with termination? So I rather thought that what his Honour was suggesting was that in this case he balanced the failure to comply with the procedure against what he saw was a proper opportunity to comment on the matters before the termination. I’m just articulating what seems to be the issue that you have to deal with.

PN184

MR O’KEEFE: I think the Bryne and Frew I’m not entirely sure that the procedures are in the employment contract itself. You see employers often have internal procedures.

PN185

JUSTICE GIUDICE: Yes, that might be relevant.

PN186

MR O’KEEFE: That doesn’t necessarily mean they are in the contract and this is very detailed and it’s actually part of the contract itself. Secondly, I would submit that if there was any misconduct by my client it wasn’t of such seriousness as it warranted dismissing her while she was on maternity leave and without giving her an opportunity to address her performance as set out in the disciplinary procedure process.

PN187

JUSTICE GIUDICE: There was an opportunity given though wasn’t there or am I mistaken about that?

PN188

MR O’KEEFE: There was a show cause letter. I know that one witness the president Mr Lodge admitted under cross-examination that he did not remember reading her response to the show cause letter. I don’t think there was – when she was dismissed she was on maternity leave so there would have been no opportunity to address performance issues by improved performance. What I submit would have been a fairer way to deal with it is to allow her to come back to work, counsel her over her performance and have an opportunity to work on those matters. Like my client for example once she was alerted that they didn’t like her calling herself the manager of the connection, she stopped doing it. That’s in my submission I’ve cited the relevant passages.

PN189

JUSTICE GIUDICE: There seems to be a conflict in the submissions on that point. Mr Moses submissions suggest that she continued to call herself as the manager even after she was told she shouldn’t do so. Anyway he will address us on that in due course.

PN190

MR O’KEEFE: I will?

PN191

JUSTICE GIUDICE: He will, yes and you’ll get the opportunity to reply.

PN192

MR O’KEEFE: Good I look forward to that. So basically what I’m saying is the misconduct wasn’t such – if there was any – wasn’t of such seriousness as it justified ignoring the procedural process that the respondent had adopted. Secondly, when it’s incorporated into the employment contract in my submission that makes the procedure a stricter one than otherwise. I will address the final ground. I think we are using the old versions of the Act section 170CG before it was re-numbered?

PN193

JUSTICE GIUDICE: Yes I think that is the common position accepted by everybody.

PN194

MR O’KEEFE: Section 170CG(3) paragraph (e) in determining whether a termination has been harsh unjust or unreasonable the Commission must have regard to any other matters the Commission considers relevant. I’ve raised a number of matters there that in my submission were brought to the attention of his Honour but which his Honour hasn’t given proper weight to or has not canvassed in his reasons. I won’t add anything more to that I think they’re self-explanatory. That’s my submission your Honours unless you have any other questions at this point.

PN195

JUSTICE GIUDICE: Yes, thanks Mr O’Keefe. Mr Moses.

PN196

MR MOSES: Your Honours and Mr Commissioner, an outline of submissions has been provided to the Commission and I don’t intend to read those submissions. We rely on those submissions in totality. There are five matters that I wish to emphasise in respect of those submissions. Unsurprisingly we submit that leave to appeal will not be granted in respect of this matter. There have been no submissions put to this Full Bench in which we respectfully submit constitute a seriously arguable basis to assert that there was any alleged error in the process of decision making by the learned Vice President.

PN197

Nor have any submissions been put by my learned friend in relation to the importance of the public interest in leave being granted in respect of this matter. The submissions in short by the appellant are a revisiting of matters that were argued and lost before the learned Vice President. Can I deal then with four matters of importance it would appear in the appellant’s argument. The first matter I wish to address the Full Bench on briefly relates to grounds 7 and 8 of the notice of appeal in respect of this matter.

PN198

Those matters relate to errors in the findings of valid reasons concerning the submitting of applications for funding without authorization, is ground 7 and the incorrect representation of the appellant as being the manager. The submissions of the appellant miss the point as to the importance that was placed upon the actions of the appellant by the respondent concerning these matters. These two matters constituted what were repeated disobedience of directions that had been given to the appellant by the management of the respondent and in particular Ms Madden.

PN199

Your Honours would note from the findings made by the learned Vice President in the proceedings below, that his Honour found at paragraph 53 of the decision that the appellant well knew the important rationale behind the relevant policy that had been explained to her by Ms Madden in respect of, for instance, the submitting of applications for funding without due authorization. The matters which are said to be erroneously relied upon by the learned Vice President, in respect of the findings that these reasons constituted valid reasons, are that they were not as we understand a sufficiently serious nature.

PN200

We deal with that matter in our written submissions at paragraphs 21 through to 26 of the submissions. To that I just wish to refer the Commission to an additional decision which is not in the bundle of authorities and not referred to in the outline of decisions. It’s a judgment of the Full Bench in Woolworths Limited versus Cameron Brown. If I can provide the Full Bench and my friend with a copy of that decision. The Learned Vice President of course, it is said as we understand it, erred in finding the reasons for termination were valid reasons for the purposes of the Act and it is said that the findings made concerning the use of the title, manager, and the applications for funding are not serious breaches of the employment contract of the appellant so as to warrant the termination of her employment.

PN201

In Woolworths Limited v Brown a Full Bench of the Commission which decided this matter on 26 September 2006, was required to consider whether termination on the basis of persistent breaches of a policy in respect of an eyebrow ring was a valid reason for termination within the meaning of the Act. It is one of those cases that received a bit of publicity last year in particular from talk back show hosts on certain radio stations in Sydney. The Full Bench held at paragraphs 34 to 35 of that decision the following:

PN202

In summary a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law, will amount to a valid reason for termination of employment within the meaning of section 170CG(3)(a) in the sense of a reason that is sound, defensible or well founded. A failure to comply with the direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where the policy or a direction to comply with the policy is illegal, the policy does not relate to the subject matter of the employment or matters affecting the work of the employee or the policy or a direction to comply with the policy is unreasonable. What is reasonable would depend on all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer in the position of actual employer and acting reasonably could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different may have been more appropriate. As the Full Bench observed in XPT case, albeit in a somewhat different context, it is not the role of the Commission to interfere with the right of an employer to manage his own business unless he was seeking from the employee something with is unjust or unreasonable.

PN203

The policies in place concerning in particular the submitting of applications for funding without authorization were explained in evidence by Ms Madden as being of substantial importance to the organization because it primarily relied upon Government funding in respect of the conduct of the important operational matters which the organization attended to. One of the concerns raised by Ms Madden was that there would be no unauthorized funding applications being made, without proper approval because the organization did not want to be put in the position where it was receiving funds for matters which it could not possibly spend the money on, or have the resources committed to spending the money on, which would of course would attract relevant criticism from the relevant body providing such funding. An unremarkable observation in respect of that issue.

PN204

JUSTICE GIUDICE: Mr Moses just before you leave that point, the challenge to the finding is made on the basis that there is insufficient evidence or there is no documentary evidence at least. What are the particulars of the oral evidence? Could you just indicate where they are in the evidence?

PN205

MR MOSES: Yes, in respect of the matters concerning the use of – withdraw that – the - - -

PN206

JUSTICE GIUDICE: I was going to ask the same question in relation to both of the grounds in our dealing - - -

PN207

MR MOSES: Sure, can I deal with it in short form? At page 1224 through to 1225 - - -

PN208

JUSTICE GIUDICE: Are they pages or paragraphs.

PN209

MR MOSES: They are pages, but if your Honour can just bear with me. Actually commencing at page 1219 of respondent’s appeal papers volume 2, these were the written submissions which were set out before the learned Vice President at first instance. What we’ve done is set out by reference to the transcript evidence in the proceedings below, those matters that dealt with instances where Ms Madden had informed the appellant not to submit funding applications without her authorization and Ms Madden continuing to do so.

PN210

The matters were traversed both in evidence in chief and in cross-examination and if I just for one moment transgress. My learned friend raised an issue of credit concerning Ms Madden dealing with the signing of an AIE foundation document that is dealt with at page 1220 through to page 1223 of the written submissions. Again we’ve cross-referenced the evidence concerning those matters. But can I attend to the matter which your Honour, the learned President has raised with me in respect of the particulars in respect of the signing of these funding applications, or the submitting of these funding applications. Can I take your Honour by way of reference to the transcript references that appear as footnote 3 on page 1220?

PN211

Commencing if I could at PN1987 which is at page 175 of the transcript in the respondent’s appeal book volume 1. During cross-examination the proposition was put to Ms Madden as to at times authority had been given the appellant to negotiate funding applications that was denied. Then moving to 1195 she is specifically asked a question in respect of paragraph 699 of her statement which set out the matters of concern which Ms Madden had raised concerning these instances, as it were conduct by the appellant at paragraph 699 of her statement page 722 of volume 2 of the respondent’s appeal papers.

PN212

They are the particulars of the allegations concerning the submitting of funding applications contrary to a direct statement to the contrary by Ms Madden to the appellant. I think that is what your Honour is looking for from me, when you asked the question in terms of those particulars, that’s at paragraph 699 page 722 of volume 2 of the respondent’s appeal papers.

PN213

JUSTICE GIUDICE: 722?

PN214

MR MOSES: Yes, your Honour page 722 of volume 2 of the respondent’s appeal papers paragraph 699 and Ms Madden was cross-examined in respect of this issue by Mr O’Keefe on behalf of the appellant. There was cross-examination of Ms Madden concerning this issue which is referred to at PN1993, page 176 of volume 1 of the respondent’s appeal book. There was an element of contradiction at one stage in respect of the cross-examination of Ms Madden concerning paragraph 699 of her statement and the Vice President pointed out at PN2000 after that – this is at page 178.

PN215

I’m trying to work out Commissioner Roberts refers to the Bart Simpson defence which is I didn’t do it, but if I did I had a good reason to do it and there is certain tension between adopting that position in some context and I’m struggling to work out whether or not in your case Mr O’Keefe is.

PN216

My learned friend said:

PN217

I’m covering both bases I guess with my question because my client has said she didn’t do things without authority.

PN218

So there was a direct conflict in the evidence concerning that issue and it turned upon - - -

PN219

JUSTICE GIUDICE: Just a moment Mr Moses, I just want to follow exactly what happened here. The matter specified in paragraph 699.

PN220

MR MOSES: Yes your Honour.

PN221

JUSTICE GIUDICE: Were they put to either by – or by other counsel to the applicant in her examination?

PN222

MR MOSES: That was the subject of cross-examination?

PN223

JUSTICE GIUDICE: Yes.

PN224

MR MOSES: If you can just bear with me. I don’t think there’s a complaint in the appeal grounds that the rule of Browne v Dunn was not complied with.

PN225

JUSTICE GIUDICE: Well that’s not what I’m addressing, all I want to know is what was said about these allegations.

PN226

MR MOSES: I’ll see if we can locate that for you immediately.

PN227

JUSTICE GIUDICE: But do I take it from the tenor of the cross-examination of Ms Madden that the defence appears to have been while the applicant or the appellant was involved in some of these matters listed in paragraph 699, it was either done with authority, or not – well done with authority - - -

PN228

MR MOSES: I think it was put on two bases your Honour. Express or implied authority – well express or implied authority the first bases the second bases in any event it was done in good faith to the benefit of the organization and that there was no harm to the organization.

PN229

JUSTICE GIUDICE: Yes, I follow. I think that’s answered my question as to where that material is.

PN230

MR MOSES: Yes, your Honour. I will locate the transcript reference for the cross-examination on this issue in due course before I complete the presentation of submissions. Could I move to the next issue that I just wish to briefly canvass with the Full Bench and that relates to what is said to be the abuse of process. The grounds 1 and 2 of the appeal that the appellant was denied natural justice and that she was not afforded an opportunity to respond to the allegation that she requested marijuana from the individual named in paragraph 28, who the Vice President has referred to as “J” in his decision. We would respectfully request, of course subject to the Full Bench’s view that that same position be adopted in any Full Bench decision.

PN231

That individual gave evidence in respect of – and there is evidence about that individual having a criminal history as a youth and he has been successful in rehabilitation and we would not wish to have matters being traversed in a document which unnecessarily made reference to this young man if at all possible. The ..... he made about grounds 1 and 2 is that, this was an allegation that arose in - if I can refer to him as Jay's evidence. That evidence was filed on 16 May 2006 and served on the appellant. Jay did not give evidence in the proceedings until August 2006, when the matter resumed before the Vice President.

PN232

The appellant simply chase not to refute that particular paragraph in her evidence in reply. In writing that is. She was cross-examined on it. Jay was not cross-examined in respect of the matters referred to in paragraph 87 of his statement, which is to be found at page 277 and 283 of the respondents appeal papers at volume 1. At no stage did the appellant object to the evidence on the basis that she was ambushed, nor did she make an application to tender evidence in reply or an adjournment to prepare the same. Those grounds, we respectfully submit must fail.

PN233

I don't wish to repeat the submissions on the phone as credit, we've set those out at paragraphs 33-39 with respect, nothing my learned friend has put to this Full Bench, in any way attacks the simple proposition that the findings that his Honour made at paragraphs 40-50 and his reasons for accepting the evidence of
Ms Madden over the appellant, were open to his Honour. Assertions from the Bar table to the contrary without taking your Honour's in any way to an analytical approach to how that advantage that his Honour had miscarried in some way, is simply not good enough in respect of an appeal of this nature.

PN234

Your Honour, can I just deal with the question that your Honour raised concerning cross-examination.

PN235

JUSTICE GIUDICE: Yes.

PN236

MR MOSES: My instructing solicitor was being very protective of the appeal book there. So if you could grab it from here. Page 59, volume 1 of the appeal book, the appellant was cross-examined in respect of paragraph 699 of
Ms Madden's statement at page 59 of volume 1 of the appeal book, PN671. Your Honours will see there that reference is made to the fact that she did not respond to that paragraph in her evidence in reply. But she was taken to paragraph 699. Your Honours I don't wish to labour the point in respect of the respondents position concerning the disposition of this appeal which we've set out in our written submissions.

PN237

We say that, with respect, nothing has been articulated before this Full Bench in oral submissions, let alone the written document that was provided to the parties -to the respondent in the Commission on Friday. Which in anyway illustrates that there has been any arguable basis for there to be an assertion that there was error made in the decision of the first instance. Those are the submissions your Honour of the respondent.

PN238

JUSTICE GIUDICE: Mr Moses, I wonder if you could just elaborate a little on the submission you make in paragraph 26. That is the submission that - - -

PN239

MR MOSES: About the manager issue your Honour?

PN240

JUSTICE GIUDICE: The manager issue, but in particular that she persisted after being told not to do so.

PN241

MR MOSES: Yes.

PN242

JUSTICE GIUDICE: Which I think is a direct conflict between you and the written submissions we've seen. The written submissions on the appeal as to whether she stopped doing so when she was told she should not.

PN243

MR MOSES: I'm happy to do that your Honour, but I was going to ask your indulgence for a very short adjournment. I'm afraid if I could just have a three minute adjournment your Honour that would assist me. It's only for the purpose of - - -

PN244

JUSTICE GIUDICE: Yes, well we can do that.

PN245

MR MOSES: Thank you.

PN246

JUSTICE GIUDICE: How long do you think your reply will be Mr O'Keefe?

PN247

MR O'KEEFE: At this stage I'd say that it's not going to be very long your Honour, cause my friend - I'd say probably only 10 or 15 minutes.

PN248

JUSTICE GIUDICE: Yes, we'll I'm just getting an idea of whether we should budget on a luncheon adjournment, I suspect we shouldn’t. So we'll adjourn for a couple of moments to allow Mr Moses to look at that material and we'll resume and we'll sit until we finish.

<SHORT ADJOURNMENT [12.45PM]
<RESUMED [1.04PM]

PN249

MR MOSES: Your Honour has asked me a question in respect of I think a finding made by the learned Vice President at paragraph 52 of the decision which is set out in volume 2 of the respondent’s appeal papers that finding is the finding of course that relates to the respondent’s assertion that the appellant had represented herself as manager of the connection in circumstances where she was not entitled to do so and had been warned not to do so by the respondent. As I understand the grounds of appeal that have been lodged in respect of this matter, that falls within the category of ground 8, that there was an error in a finding of valid reasons in respect of that issue.

PN250

We haven’t been able to exhaustively complete our reference and our review of the evidence concerning this issue. One of the matters that we can take the Full Bench to appears at page 688 of volume 2 of the respondent’s appeal papers commencing at paragraph 352 where in relation to the signing of a document the witness, Ms Madden noticed that the appellant had an initialled the bottom of the pages of the agreement in the space for the executive officer/general manager of The Connection and the question was asked:

PN251

Why have you initialled these pages, I made mistake as I thought it was the contact officer that needed to sign those. Me I’m not going to be here tomorrow, so I’m trusting you to do this. You need to remove this and white out your initials you have to leave the rest of this page blank because there is no executive officer of the Connection. This is the only funding agreement that provides for a sign off by the general manager or executive officer of The Connection.

PN252

She asserts that:

PN253

I specifically told Beth to leave this section blank

PN254

Now her evidence then at page 698 of the appeal book was, that in mid June 2005 when she discovered that Beth had signed this application form as general manager for Connection:

PN255

I said words to Beth to the effect of –

PN256

And the evidence was that she disputed any assertion that she had signed the agreement in that space after the appellant had already signed it. The appellant asserted that her signature had been on it and that Ms Madden signed it after that and that appears to have been the dispute in the evidence from what we’ve been able to find so far your Honour in respect of that issue that your Honour has raised with me as to where that emanates from.

PN257

JUSTICE GIUDICE: Yes.

PN258

MR MOSES: I’m afraid I can’t be of any more assistance your Honour in respect of that issue at this stage.

PN259

JUSTICE GIUDICE: There is something in paragraph 710 on page 723.

PN260

MR MOSES: There was a conclusion which was drawn from the conduct of the appellant by this particular witness an assertion that was made concerning the gravity of the conduct or the reasons why that conduct was considered not appropriate and it was asserted, as I understand it your Honour, by reference back to the earlier evidence that I pointed your Honour to that given the fact that the appellant persisted in as it were submitting that document with her name on it, despite the conversation that earlier alluded to, that it was done in a calculated, deliberate manner.

PN261

I think linked back to that what was said to be the attempt by the appellant to have herself appointed as the general manager of The Connection as well without the authority of the respondent. I’m afraid your Honour I can’t be of more assistance than that.

PN262

JUSTICE GIUDICE: Thank you. Mr O’Keefe?

PN263

MR O’KEEFE: I might address the Bench firstly on the leave to appeal issue because my learned friend raised it and I didn’t actually say much in my submission on that. The two issues that I think that are in the public interest, warrant the granting of leave to appeal are the – whether an indiscretion involving cannabis outside of work hours in a jurisdiction where cannabis is decriminalised in the sense that I’ve put it to you, whether that is – should is a valid reason for termination I think that’s of general interest and something that warrants the granting of leave to appeal, under the test of section 120.

PN264

The other issue that I think is of general importance is the procedural fairness issue and whether by incorporating disciplinary procedures into the employment contract that changes the landscape as far as the general tests on procedural fairness issues go. In my submission either of those issues made this appeal one that is of such importance and in the public interest, leave to appeal should be granted. I made it a challenge in my oral submissions anyway for the respondent to demonstrate actual or concrete examples of how applying for grants might in some way to detrimental to the respondent.

PN265

That was addressed by my learned friend in his oral submission and he drew attention to some evidence of Ms Annie Madden about if they got money they couldn’t spend that could be a problem. The problem for the respondent is that they raised a number of potential problems that the applying for grants might cause. They didn’t actually demonstrate a real problem. Ms Madden said that if someone applied for a grant and they couldn’t spend the money that might be a problem. But she wasn’t able to actually point to a single instance where a grant had been applied for and they hadn’t been able to spend the money.

PN266

So the alleged detriment to the organization was theoretical rather than real and that was the point of my submission, that there was no real detriment demonstrated by the respondent on this question.

PN267

JUSTICE GIUDICE: Do you have credentials on Government’s requirements in relation to grants and other funds in organizations like this for reasons which are to protect the public – or proposing to protect public funds. It is difficult to follow a line of reasoning which says not following those requirements is acceptable unless it results in some financial detriment?

PN268

MR O’KEEFE: It doesn’t necessarily have to be financial but there needs – in my submission they needed to demonstrate some harm to the organization from her behaviour. I contrast it with expenditure of money, inappropriate expenditure of money is one thing, but inappropriate obtaining of money is a very different issue from inappropriate expenditure of money. Because if you get money that you shouldn’t have you can just simply write a cheque and send it back. It’s as a simple as that and they never had to do that. They never demonstrated that they had to do that or that the money that they’d received from any of the grants that Beth allegedly applied for without permission, was in some way not spent, or not needed, or not useful to the organization.

PN269

SENIOR DEPUTY PRESIDENT RICHARDS: Can I just in that context at paragraph 1848 of transcript in about the last dozen lines. There is a question that is put in your cross-examination of Ms Madden and it’s really about context is in relation to reinstatement. But Ms Madden makes a number of observations there in that context about how the organization is and can conduct itself, the requirements of trust, the scrutiny to which it’s exposed and the importance of maintaining proper policies and procedures.

PN270

MR O’KEEFE: Well she is talking generally about policies and procedures. As I said my client doesn’t admit that she didn’t follow those policies and procedures. If the Commission found that she had applied for grants without permission, I guess the next question is was there any detriment to the organization. If the detriment is simply it causes a breakdown in trust or we are subject to greater scrutiny than other organizations and therefore we have to have a high standard credential integrity or whatever, my argument would be, okay my client made a mistake, but is it misconduct sufficient enough to warrant her dismissal or would dismissal in these circumstances where no concrete detriment had been demonstrated, would that be considered too harsh. That would be my submission.

PN271

My friend worried me a little because I made another challenge to the respondent in the course of my submissions to produce some written examples of agreements, or funding applications that my client had applied for that weren’t authorised and then they pointed to paragraph 699 of Annie Madden’s statement, which is on page 722 of the appeal book. These matters are addressed in my client’s evidence at pages exhibit 3 which starts on page 592 of the appeal book. I’m sorry for my clarity at the moment it’s just that these issues have come up during my learned friend’s submissions and I’ve only had a few minutes to explore them.

PN272

From page 598 of the appeal book to page 601 to address those. His Honour’s finding – the actual terms of his Honour’s finding were that:

PN273

She submitted applications for funding to Commonwealth Government Departments on behalf of AIVL without the knowledge and permission of AIVL in the face of warnings that she should not do so.

PN274

He made no specific findings in relation to any of the contracts referred to in paragraph 699 of Annie Madden’s statement. The only ones that are Commonwealth grants are (b) and (c) of 699. Funding application to OATSIH and funding with facts for the domestic violence project. Attachment (s) to my client’s statement which is on page 458 of the appeal book. That has an email from my client informing Annie Madden of what she is doing and one of those is domestic violence project and one is a sexual health project.

PN275

So what I’m submitting is that none of the matters in paragraph 699 of Annie Madden’s statement was specifically proven. His Honour didn’t make any specific finding about what Commonwealth grant my client had applied for without permission. He just made a general finding. That general finding was based on the oral testimony of Annie Madden, not on written documentation. It was based on testimony of Annie Madden which he preferred to that of my client. So it all came down to credit. When one goes into it with the sort of detail that we have today, it’s very confusing I accept that. But it is impossible to find one Commonwealth application that my client made without authority.

PN276

Just before I close I just want to make one comment about my client’s credit and if my friend wants an opportunity to respond to this, he may, but I wouldn’t object. There was something, his Honour, one of the findings that his Honour made on credit in relation to my client was about overtime. If we turn to page 1255 of the appeal book. It is paragraph 42 of the Vice President’s reasons and he pointed to and he made a number of dot points of matters where he felt my client’s evidence was unsatisfactory or unpersuasive and one of those was that:

PN277

Her claims as to working excessive overtime when such claims are contradicted by the relevant timesheets.

PN278

The point about that is that my client didn’t normally claim overtime, she had another arrangement for a bonus and that’s dealt with in her written evidence at page 596 of the appeal book under the heading, extra hours worked. That’s my submission your Honours. As that last thing about the overtime was something I hadn’t raised in my submission, if my friend wants an opportunity to comment I have no objection.

PN279

MR MOSES: I’ve nothing to add your Honours.

PN280

JUSTICE GIUDICE: Yes. Was there anything else gentlemen?

PN281

MR O’KEEFE: Nothing further your Honour.

PN282

MR MOSES: No, your Honour.

PN283

JUSTICE GIUDICE: In that event we shall reserve our decision, now adjourn.

<ADJOURNED ACCORDINGLY [1.28PM]