C2007/3024, Transcript of Proceedings [2007] AIRCTrans 539 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17531-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER CARGILL

C2007/3024

s.120 - Appeal to Full Bench
Appeal by Iliadis, Yasmin
(C2007/3024)

SYDNEY

10.01AM, WEDNESDAY, 26 SEPTEMBER 2007

PN1

MR T SANDERS: I seek leave to appear on behalf of the respondent. Seated at the bar table with me is MR D MAHENDRA of Sparke Helmore Solicitors.

PN2

JUSTICE GIUDICE: Yes. Mr Sanders, there's been some contact from the appellant, in particular two emails. Have you seen those, an email of
24 September to my associate, Ms Purcell, and a further email to Ms Purcell on 25 September?

PN3

MR SANDERS: Yes, your Honour, I have seen those, they were copied to my instructing solicitors from your associate.

PN4

JUSTICE GIUDICE: Has your solicitor had any contact with Ms Iliadis?

PN5

MR SANDERS: No, we've not. The only contact we have had about her difficulty appearing in the appeal is through the Commission, not directly from her.

PN6

JUSTICE GIUDICE: Yes, very well. What do you suggest we do now?

PN7

MR SANDERS: In my submission the appeal should be heard and determined now. If I address that point first and then come to the appeal itself?

PN8

JUSTICE GIUDICE: Yes.

PN9

MR SANDERS: A couple of matters which are relevant to the position put forward by the appellant in her emails, namely as to legal advice she's been seeking, it's apparent from the material, and I can take the Full Bench to it if necessary, that the appellant had engaged a solicitor to assist her in relation to this matter as early as about mid 2006, and one of the documents she provided to Vice President Lawler in support of her extension of time application was a letter from her solicitors. So she certainly had solicitors engaged by her at that time.

PN10

When she filed the application late in March of this year she ticked the box to say that she would have legal representation and then wrote that she would notify the Commission and the parties as to whom that legal representation would be. We have not been notified of that since that time. It appears from the most recent emails that the appellant does have a solicitor, has engaged one, but there's some difficulty with it. In circumstances where the notice of listing was sent to the parties on 15 August of this year, in my submission it is too late for the appellant to send the email she sent shortly before this hearing in an attempt to have an adjournment. She's been on notice at all relevant times that the matter was going to be heard today.

PN11

In my submission the respondent would be put to undue cost and delay if the matter were not to proceed today. So those are my submissions in support of the matter proceeding today. If the Full Bench is with me on that point I will then make submissions as to the outcome of the appeal.

PN12

JUSTICE GIUDICE: She doesn't indicate in her emails why she's unable to appear and represent herself, although she did do so before the Vice President I think.

PN13

MR SANDERS: She did appear on her own before the Vice President, that's correct.

PN14

JUSTICE GIUDICE: Yes. But in any event you haven't had any other contact with her or your instructing solicitors, so that's unexplained?

PN15

MR SANDERS: Yes, that is so.

PN16

JUSTICE GIUDICE: Well, Mr Sanders, we've had a look at the outline you filed and we've also looked at the material in the notice of appeal, which in some respects goes beyond grounds that might in some ways be perhaps characterised as a submission outline, and in light of the appellant's none appearance to prosecute the appeal we would be inclined to dismiss it, however, we are reluctant to do so given some of the evidence before the Vice President as to the difficulties that the appellant has had over a period of time.

PN17

One possible way to bring the matter to finality, which we would appreciate your submission on, would be if we simply took your outline of submissions as your case in opposition to the appeal and provided a period of time for the appellant to respond in writing. If there was no response in that period - we had in mind 30 days - then the appeal would be dismissed at that time. If there was a response we would simply decide the appeal on the basis of your outline and anything we received from the appellant without a further hearing date for the oral hearing. You might like to consider that with your instructing solicitor.

PN18

MR SANDERS: Yes. Might I take a moment to do that?

PN19

JUSTICE GIUDICE: And your client. We are amenable to any other suggestion that might provide perhaps some insurance against an injustice being done to the appellant for reasons which she is unable at this stage to communicate to us.

PN20

MR SANDERS: Might I have a moment to get some instructions?

PN21

JUSTICE GIUDICE: Yes, of course.

PN22

MR SANDERS: I thank you for that indulgence. If the Commission is minded to allow the appellant further time to put on material, the first thing we say about that is our submission is the matter should proceed today. If the Commission is against us on that, the appellant is going to be given more time, might I suggest this type of program? That is, the appellant be given, say 14 days to put on any written material she wants the Full Bench to consider, and then if the appellant does put on any such material within that time period we would wish to have an opportunity to come back before the Full Bench and address the Full Bench in light of that material.

PN23

Now, we understand that would mean an additional period of time in court, but we feel that's important so we get an opportunity to consider the material and respond to it and to address the Full Bench in relation to that material.

PN24

JUSTICE GIUDICE: Could that not be done in writing?

PN25

MR SANDERS: Certainly it could be done in writing, but in my submission it would be preferable if we were given the opportunity to address the Full Bench orally in light of any material put on by the appellant. One intermediate course which might be available to us is, once we see the appellant's material we might simply be able to say yes, we're happy to deal with it in writing, but I at least foreshadow at this time we would wish to be heard orally in relation to any material put on. So it might be a program where the appellant puts on any further material in writing within 14 days, we notify the Commission within, say seven days of that date whether we wish to be heard orally or whether we wish to put on written submissions only, we then notify the Commission, and then if a further time is required that that could then be set.

PN26

It of course does depend on the nature of the material put forward by the appellant within the next 14 days as to whether there is going to be any utility in us addressing the Full Bench orally and not just in writing. But we certainly would like to have that opportunity if the material gave rise to that kind of need from our point of view.

PN27

JUSTICE GIUDICE: Rather difficult to reserve that right to you and not reserve it to the appellant.

PN28

MR SANDERS: I did envisage, your Honour, that a time would be made available before the Full Bench for both parties to appear and address the Commission orally, as would ordinarily have happened today if the appellant were here.

PN29

JUSTICE GIUDICE: Well, is it going to achieve much if we direct along the lines you suggest with liberty to both parties to apply for a further listing? If that's the basis one wonders whether we ought not simply adjourn today. We've designed a procedure, envisaged a procedure which would shorten things and would obviate the need for a further hearing. After all, the appellant's not turned up. We have a lingering concern that there may be a very good reason for that, but at the moment she's not here. I should also indicate we've not intended to cut short any submission you wanted to make on the merit of the appeal today, and we'd envisaged also that the outline, if it's not already been served on the appellant, would be served on the appellant.

PN30

MR SANDERS: It has been served, your Honour.

PN31

JUSTICE GIUDICE: Yes. So it's then really a question of any written response she wishes to make to that and any written reply that you might make on your client's behalf. I think that's the sort of approach we'd rather stick with, but I suppose we have to reserve liberty to both sides to have a further hearing should they want it.

PN32

MR SANDERS: If that could be granted we would appreciate it.

PN33

JUSTICE GIUDICE: Yes.

PN34

MR SANDERS: We're just concerned when we haven't seen what the appellant might put on, it might well be necessary to address orally. We hope it won't be. It's not in my client's interest to come back and spend more money and spend more time before the Commission if it can be avoided. It's only the concern, the lingering concern in my mind that the appellant might put on something that requires an oral address and not just a written submission. I certainly would hope that we would be able to respond in writing and that might be it. But if that right could be reserved, and if I could address the Commission today on some additional points not made clear in my written outline that would assist as well?

PN35

JUSTICE GIUDICE: Yes, very well. Well, any additional material you put today would require to be made available to the appellant as well in addition to the written outline, so it would mean we would have to wait for transcript and make sure she got a copy of it.

PN36

MR SANDERS: Yes.

PN37

JUSTICE GIUDICE: Very well. You complete your submissions on the appeal, and then we will craft an order generally along the lines that has been discussed and make that available to your instructing solicitor later in the day.

PN38

MR SANDERS: Thank you, your Honour.

PN39

JUSTICE GIUDICE: And we'll require you to make sure the order is served on the appellant.

PN40

MR SANDERS: Yes, we will tend to that. I put it formally, my submission in relation to the way the matter should be resolved. In my submission there are two reasons why the appeal ought be dismissed, and the first is in light of the appellant's decision not to appear today it should be dismissed for want of prosecution. Secondly, for the reasons set out in our written submissions, which I will address today, there's no appellable error in the decision of the Vice President. The decision by the Vice President not to extend time to the appellant to lodge her unfair dismissal application was a decision not to exercise a discretion available to the Vice President as a result of the House v R principles which applied in relation to discretionary decisions are applicable on this appeal.

PN41

In the respondent's respectful submission the Vice President did not mistake the facts, he did not allow any extraneous or irrelevant material to impact on his judgment and did not fail to take into account any material facts. Furthermore, in my respectful submission the Vice President did not act upon the wrong principle. At the heart of his decision was his assessment of the merits of the applicant's claim. The Vice President concluded that the merits of the claim were manifestly untenable, and in reaching that conclusion he found that the respondent had a valid reason for terminating the appellant's employment, and the reason for the termination was due to medical incapacity on the part of the appellant to perform the inherent requirements of the job. And the Vice President relied upon two pieces of evidence to reach that conclusion, and may I just draw the Commission's attention to those pieces of evidence.

PN42

Because the Appeal Books, if they've been provided, aren't readily accessible in terms of page numbers, might I hand up a copy of the two pieces of evidence to which I wish to address the Full Bench? There are three copies of each. The first document that I've handed up is an affidavit of Armand Casolin. This was an affidavit tendered by the respondent at the hearing before the Vice President, it's an affidavit of the chief health officer of RailCorp. There's only one part of it I wish to direct the Full Bench's attention to, and that's one of the annexures to the affidavit. It's an annexure marked as AC4 to the affidavit, it's a letter dated 4 September 2006. There should be a yellow tab on the second page of that document. It's a letter from the appellant's treating psychologist at the time, it's a letter dated 4 September 2006. That treating psychologist is Gerard Glancey.

PN43

Can I direct the Full Bench's attention in particular to page 2 of that letter, in particular to the second last paragraph on the page where Mr Glancey said this:

PN44

There is little likelihood that her opinion regarding the employer will change.

PN45

That is the appellant's opinion regarding the employer:

PN46

In my view she suffers an adjustment disorder. An adjustment disorder is a reactive disturbance to situational stresses. Ms Iliadis's disturbance is reactive to a section of malevolence by the employer. In my view Ms Iliadis's relationship with the employer has irrevocably broken down. Separation from the employer is in her best interests. In my view separation from the employer is necessary if she is to demonstrate improvement with mental disturbance.

PN47

Over the page he goes on to respond directly to the questions, the two questions put to him by Dr Casolin, and in respect of the first question he answers:

PN48

It's my opinion that Ms Iliadis's hostile outbursts within the workplace are related to her mental disturbance. Outbursts are influenced by personality and characteristics.

PN49

And in respect to his answer to the second question he said that:

PN50

There is little likelihood that treatment would improve her attitude towards the employer if she were to return to employment. Hostile behaviour would in my view inevitably occur, treatment would not be successful in addressing mental disturbance reactive to the employer and to the employee. Medical retirement is in her best interests. I believe Ms Iliadis accepts with this view.

PN51

It should of course say accepts this view. So that was the medical evidence put forward by the respondent, but it's a report by the appellant's treating psychologist, and it's one of the medical reports to which the learned Vice President had regard in reaching his conclusion that there was a valid reason for the termination, that valid reason being medical incapacity. Importantly, the Vice President also had regard to medical information put forward by the appellant herself in support of her application that time be extended to lodge her unfair dismissal claim.

PN52

And might I then direct the Full Bench's attention to the second document I handed up, that's also exhibit 1, or that is exhibit 1 to the hearing. It was exhibit 1 at the hearing before Vice President Lawler. It constitutes the documents handed up or tendered by the appellant in support of her application for extension of time. If I can direct the Full Bench's attention to that document. The first page of the document establishes that it's a medical report prepared by Dr Vyas, who was the appellant's treating general practitioner. This is a report prepared by that person for the purpose of determining whether or not the appellant had a medical incapacity for the purpose of superannuation.

PN53

On the second page of that report, importantly, the treating general practitioner concluded - this is in the right hand column about halfway down the page under the heading "Opinion on incapacity," the GP concluded that Ms Iliadis will never be able to be employed in her normal occupation due to her incapacity. And the incapacity one finds on the second page as well, being anxiety, depression since about early 2005. In addition the general practitioner concludes that Ms Iliadis is still able to be employed in some form of paid occupation, and examples are set out there, but most importantly for present purposes in brackets there's a reference written by the GP of course, is the fact that in her opinion the appellant was not to work in RailCorp.

PN54

There is medical evidence put forward by the appellant, that is medical evidence from her own treating general practitioner, that she was not to return to work at RailCorp. In addition to that medical evidence was put forward by the respondent from the appellant's treating psychologist to the same effect, that is that the appellant could not return to work, or could not safely return to work with the respondent in any capacity. And that's the evidence that the learned Vice President relied upon in forming his conclusion that there was a valid reason for the termination of employment, being medical incapacity.

PN55

Now, the Vice President didn't stop there. He also addressed his mind as to whether there were any other reasons as to why or as to how the appellant might have some prospect of succeeding in her unfair dismissal application. In particular he had regard to the efforts made by the respondent to redeploy the appellant prior to the termination of her employment, and that was in evidence before the Commission. He also had regard to the considerable amount of time that was taken between about July 2006 when the appellant was first put on leave with pay following an incident at the workplace.

PN56

So she started off, she was suspended on leave without pay in about July 2006, she continued on leave without pay - sorry, leave with pay, until she was dismissed in March 2007. Now, in light of that timeline the Vice President concluded that the respondent had not been hasty in its decision to terminate the appellant's employment on the ground of medical incapacity. The Vice President then went through the other factors that one has to have regard to in determining whether the termination of employment is or might be harsh, unjust or unreasonable, and reached the conclusion that the appellant did not have any prospects of succeeding in such a claim.

PN57

In my respectful submission the Vice President's conclusion that the appellant's application for relief was manifestly untenable was both correct and reasonably open to him on the evidence. In my submission this is not a case that is of such importance that in the public interest leave to appeal should be granted. In my submission leave to appeal should not be granted, the appeal should be dismissed. Unless I can assist the Commission further those are the submissions I wish to make at this point.

PN58

JUSTICE GIUDICE: Yes, thanks, Mr Sanders. What we'll do, Mr Sanders, is in the not too distant future issue a short decision and an order generally in the terms we've discussed and will require your client to serve that decision and order on the appellant, and would also have to make some provision for the appellant to receive the transcript of today's hearing. Unless there's anything else we'll adjourn.

PN59

MR SANDERS: Thank you, your Honour.

<ADJOURNED INDEFINITELY [10.26AM]