C2007/3570, Transcript of Proceedings [2007] AIRCTrans 632 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17746-1

SENIOR DEPUTY PRESIDENT RICHARDS

C2007/3570

Appl’n to vary or set aside obligation to pay redundancy pay under NAPSA
Application by Absoe Pty Ltd
(C2007/3570)

BRISBANE

FRIDAY, 09 NOVEMBER 2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE

THE SENIOR DEPUTY PRESIDENT: Good afternoon, everyone. It's Senior Deputy President Richards speaking. Do I have Mr Martinsen on the line?

MR J MARTINSEN: Speaking.

THE SENIOR DEPUTY PRESIDENT: And do I have Ms Prior?

MS K PRIOR: You do.

THE SENIOR DEPUTY PRESIDENT: Ms Prior, you have some other company representatives with you, do you?

MS PRIOR: I have MS M DRAKE and group financial controller MS E HARRINGTON.

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Prior. The purpose of today's directions hearing is to allow me to determine some contested issues in relation to a request by Mr Martinsen for a summons to witness for various persons. Ms Prior, you've objected to those summonses being issued. Can you just again for the record indicate to me against which persons you're seeking - - -

MS PRIOR: Mr Salisbury and Ms Morris.

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, can you again indicate to me why you request these two particular people?

MR MARTINSEN: Yes, in relation to the acceptability of the alternative position that was offered and in relation to some animosity in relation to Mr Salisbury, a couple of incidents that happened that he would be well aware of and Ms Morris is in relation to the efforts taken by Absoe in determining my request for severance payment and why she didn't pay it and the fact that she was instructed to not pay it and as to why she indicated redundancy on my separation certificate. These questions won't take very long. I can't see why - you've listed them for one hour each on the 15th, on the second day of proceedings and I cannot see why it would be such a hardship to these individuals and why they're contesting offering the truth for a very short period of time in relation to this matter.

THE SENIOR DEPUTY PRESIDENT: You say Mr Salisbury has knowledge of your work that you performed, the nature of the work that you performed?

MR MARTINSEN: Yes, and it's in relation to - it seems odd, you know, I'm letting the cat out of the bag here so that they can all get together as they are and come up with some patent answer perhaps, but in relation to my offer to Mr Drake in relation to continuing - sharing the floor space with the shop and his department in order to run the reduced Home Furniture department. All of this has been set out in my application for the summons.

THE SENIOR DEPUTY PRESIDENT: Ms Prior, do you have some instructions from these particular individuals, Mr Salisbury and Ms Morris.

MS PRIOR: I do, Senior Deputy President. Both of them have indicated that they are most unhappy about being summonsed. They have provided copies - one has gone to Mr Martinsen and I think that's a letter to Mr Martinsen she has also provided to us and she has provided her position. Mr Salisbury has also provided a copy of a letter to Mr Martinsen to ourselves for our information. I've also had the opportunity to speak to those people. Both of them indicate that there's very little about this that they know in relation to detail and perhaps I can put the submission a little more by going through those issues that have been raised in relation to the seeking of a subpoena by Mr Martinsen.

THE SENIOR DEPUTY PRESIDENT: I think we're going to move into other issues which will become subject to contest. I am a bit reluctant to open up that discussion. We have a very narrow issue before us today and that is whether or not I should issue a summons to these two particular people. I am aware as you say of their reluctance to appear and I am also aware as you put it, Ms Prior, that they have on their statements not under oath, but their statements in advance of the hearing that they have little to offer and little to recall by way of detail.

MS PRIOR: In relation to Ms Morris, in the discussion that she and I had, she said to me that she's made a statement to the Office of Workplace Services and she couldn't even recall what she had put on that. Well, I was actually able to provide her with a copy of that, but as it happens, it's more than 12 months since the events took place that we're aware and some nine months since Ms Morris actually made that statement to the department so she's employed elsewhere and these aren't things that she has necessarily kept in her mind.

I suppose if I could raise one issue, Senior Deputy President. At our last directions hearing I indicated to you that we were seeking to amend the scope of the application because the scope was quite narrow and between you and I there was a discussion on that and perhaps I should indicate to you the way we are hoping to amend, because I suppose that puts a framework on the matter. What we're going to be seeking to have under severance pay, solely obviously in relation to this particular matter that relates to Mr Martinsen, is inserted where an employee can say that an employer has made an offer of ..... to that employee, there will be no requirement to pay severance pay. Now, we're going to be seeking that that's varied that in that way and then we are going to be requesting that you consider the role that was offered to Mr Martinsen and that it was adequate ..... employment.

Now, in that regard, Mr Salisbury who was 2IC of another department entirely didn't work with Mr Martinsen either in Home Furniture or in the home furnishing department with the general manager, Mr Genrich, in the office equipment department. He ..... in relation to the issue of adequate or ..... employment. In relation to our proposal to that substantial matter of Ms Morris and what directions were given to her in relation to whether or not to pay redundancy, ..... on that. Mr Martinsen discusses that at paragraph 33 and 52 of his statement directly in relation to severance when ..... says that both Elaine Harrington and he reviewed the NAPSA and that Mr Drake spoke to the Deputy President of the Queensland Industrial Relations Commission ..... and that she informed him that if there was a job offer of a similar nature, there was no redundancy payment required and then Mr Drake noted in the ..... byline that Jeff was terminated ..... employment. He gave us notice ..... There is no contest about ..... that may have been given ..... Mr Drake made it clear.

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, do you see any - if those things are - if Ms Morris's position is uncontested, why do you require her to attest to it again?

MR MARTINSEN: Well, I wouldn't necessarily, but I wouldn't agree entirely that because Mr Drake had reviewed the matter, that he hasn't expressed that he instructed Ms Morris to not pay me. That's evidence that she would be providing. It goes to the unilateral withholding, decision to withhold the payment.

THE SENIOR DEPUTY PRESIDENT: Can I stop you there? There's no contest that the employer hasn't paid you redundancy pay, is there?

MR MARTINSEN: No.

THE SENIOR DEPUTY PRESIDENT: That's agreed by the parties, Ms Prior. That's why we're all here.

MS PRIOR: That's right.

THE SENIOR DEPUTY PRESIDENT: So that matter is uncontested. That's agreed and it's uncontested that the company has not paid you severance pay and that's the very reason this proceeding is unfolding.

MR MARTINSEN: Yes. If I may say that she had made statements to the Office of Workplace Services which I have not received yet. Apparently they're on the way to me. I can't really comment on whether what she said in those statements reflected the reality of the situation or not, so it seems I am in an odd position here where I don't know what she says, I don't know what evidence has been given by her or statements made by her and until I can have a view of what she's said previously, I can't determine whether there was misleading or incorrect or otherwise statements made.

THE SENIOR DEPUTY PRESIDENT: Just bear in mind that this investigation effectively that is now unfolding in this Commission under the Act is a distinct and separate proceeding than whatever was conducted in relation to the workplace ombudsman, so it's effectively an investigation de novo, if you like, afresh. In relation to Mr Salisbury, Mr Martinsen, again can you tell me in some detail why is it that Mr Salisbury, what is it about Mr Salisbury's location, his relationship to you, that gives him knowledge of the adequacy of the alternative position that was offered?

MR MARTINSEN: I relates to the fact that I tried to initiate a suitable alternative position which would have been suitable for me. Mr Salisbury, he may have been 2IC, but he was actually left in charge after the previous manager of the department departed. Mr Salisbury was organising the taking over of my floor space which Home Furniture was occupying. Mr Salisbury indicated to me that he only needed half of the area and suggested or agreed that I could use the other half of the floor space to run the Home Furniture department. Mr Drake is making out like I was refusing any and all employment offered by Absoe which I refute in that I've applied for two positions, I tried to create a position and I'm just trying to refute the fact that he's saying that it was irrelevant what he offered to me, that I would have refused anything, but that's simply not true. I had tried everything I could to arrange a suitable alternative position and for operational reasons or for some decision, he decided against it which is fine, but I want to indicate that I wasn't adverse to working for him in any such way. I was just adverse to going backwards in the position that was essentially offered to me.

THE SENIOR DEPUTY PRESIDENT: All that this matter turns on is the position that was offered to you. I'm not in a position to draw an inference from your conduct in relation to any other matters other than in relation to the position that was offered to you and it is a question for me to determine on the evidence whether or not the particular position that was offered to you and there was only one, whether that particular position as offered to you constituted acceptable alternative employment and everything turns on that only because I have no broader or wider jurisdiction than to determine that issue alone.

MR MARTINSEN: There's also the issue of the animosity with the staff of the 2IC of the department, but I don't visit that point from other witnesses that I'm bringing forward, so in that case, I withdraw the summons.

THE SENIOR DEPUTY PRESIDENT: From Mr Salisbury?

MR MARTINSEN: Yes, and Erelyn's as well. Senior Deputy President, they can wait almost 14 months to make an application for a variation from an obligation that has existed for that length of time and then the two witnesses that I do try to call, they argue that it's so long ago that their memories have faded. It just goes to show that Mr Drake has acted in an untimely manner in seeking this variation from his obligation.

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, I will just ask you one or two more questions. You remember also that in cross-examination or, rather, in your evidence in chief if you wish to give it that way, you can include any - if you want to amend your evidence in chief and include a reference to your desire to continue to work in some capacity with the company, you can do that if you like and see whether that's contested and it wouldn't actually require me to bring Mr Salisbury for that purpose, but again, as I say, it's somewhat adjacent to the exclusive issue with which I need to be focused.

MR MARTINSEN: It seems that Mr Drake has omitted to mention anything of my offer to do that in his statement.

THE SENIOR DEPUTY PRESIDENT: I don't want to get into the evidence in this matter too far, but, Ms Prior, does that appear to be a matter that you will contest?

MS PRIOR: I don't actually have instructions.

THE SENIOR DEPUTY PRESIDENT: We had better leave it at that, I think.

MS PRIOR: Could I just suggest, though, that there is the power of cross-examination and obviously that's going to be an appropriate place for Mr Martinsen go to when I put Mr Drake in the witness box. He's our principal witness.

THE SENIOR DEPUTY PRESIDENT: Yes, that's assuming Mr Drake has knowledge of what transpired with Mr Salisbury in that regard, but I think it would perhaps more naturally arise out of an amended evidence in chief by the applicant himself on the day if that is what he wished to do and that would require no more than simply asserting that there were circumstances in which he had sought to retain a position with the company into the future.

MR MARTINSEN: I did specifically put that point to Mr Drake. I put the offer to him, the suggestion, if you will and he turned it down.

THE SENIOR DEPUTY PRESIDENT: We can deal with that, then, in the absence of Mr Salisbury, I think, as you said, Mr Martinsen. What did you want to do about Ms Morris?

MR MARTINSEN: That's fine, if they're not contesting that they told her to not pay me without seeking a variation from their obligation to pay me. I'm certainly curious as to why they would go to a state jurisdiction for a federal matter and it doesn't seem like the Deputy President of the state Commission gave him accurate information to begin with or whether it was her place to advise him like that, but again that's another matter.

THE SENIOR DEPUTY PRESIDENT: Summonses will not issue then in relation to Mr Salisbury and Ms Morris. That matter is dealt with, but, Ms Prior, you've just mentioned to me in passing before you were seeking to amend your application. I am just wondering how you can - what does that mean?

MS PRIOR: I can recall, Senior Deputy President, that ..... I did have a concern about ..... the concept of amending in relation to the amendment of the NAPSA and specifically a non-specific application to vary. Given the NAPSA has prescriptive recommendations, I actually looked at the NAPSA, went to the appropriate section relating to severance pay and looked for what our requirement would be, so, really, we would require you or would be asking you that you feel comfortable with finding that where an employer made an offer of adequate ..... employment, what is the requirement to pay severance pay and also that the offer that we have made fulfilled that requirement of ..... employment. As you're aware, I use that concept because it's a regularly used concept in regard to severance pay matters.

THE SENIOR DEPUTY PRESIDENT: I am not sure how anything changes in my obligation under the regulations. The power that I exercise in this matter is under regulation 3.5, as you know and that says that I can do certain things, that is I can receive an application to vary or set aside an obligation to pay redundancy pay. That's the first thing it enables me to do and I can by order determine whether the alternative employment was acceptable and I can only do that in circumstances where the NAPSA conforms with the requirements of the regulation, that is that it makes certain provisions and that's the extent of the exercise. As long as the NAPSA conforms with the term specified in regulation 3.5(1), then I have the powers under 3.5(2), regulation 3.5(2) and I can receive your application and I can determine whether the alternative employment is acceptable and that would have the effect of allowing me to vary or set aside the obligation.

MS PRIOR: We don't ....., Senior Deputy President, and I've been looking at some of the decisions and I was uncertain in my own mind whether making a request of you was appropriate or not, but, yes, that's exactly what we're looking for.

THE SENIOR DEPUTY PRESIDENT: I am afraid there's no latitude or flexibility in these provisions. They stipulate exactly the conditions in which I have the powers and then they stipulate in very precise terms what those powers are and I can import nothing to them nor read them down, so that is for some purposes a reasonably straightforward exercise in terms of interpreting what the task is. There is, of course, the evaluative exercise of considering the evidence and determining whether the work is acceptable, of course, so I don't see anything in this reference to amending at all and I don't think we should excite the issue at all or give rise to any argument about whether I should accept an amended application. It is as it is, I think.

MS PRIOR: I accept that, Senior Deputy President.

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, nothing is changing we're really saying.

MR MARTINSEN: I understand that. I have a couple of questions, if you're open to them.

THE SENIOR DEPUTY PRESIDENT: You can ask them. We'll see.

MR MARTINSEN: My witnesses, will they be required all day, both days, or can we narrow their requirement to attend down as we did for Mr Salisbury and Ms Morris?

THE SENIOR DEPUTY PRESIDENT: If you can agree with Ms Prior - I don't like to myself predetermine the way in which parties might want their cases to unfold. They have sometimes tactics and their own understanding of how everything is arranged. If you and Ms Prior come to some understanding as to a timetabling of witnesses in order to ensure their maximum convenience and to minimise their inconvenience, I am happy to comply with that, so it's a question for yourself and Ms Prior. If you want to have some other discussion about timetabling of witnesses, I am happy to accommodate as best I can what you come up with.

MR MARTINSEN: I am just trying to alleviate their inconvenience.

THE SENIOR DEPUTY PRESIDENT: Do you want to have that discussion now?

MR MARTINSEN: No. It would probably be more appropriate if I call her at her office or something and we discuss that.

THE SENIOR DEPUTY PRESIDENT: Are you open to that, Ms Prior?

MS PRIOR: That would be a better idea. I will be in a position to get some instructions in the meantime.

THE SENIOR DEPUTY PRESIDENT: That's fine. As I said, I am aware that people get drawn in to these proceedings and they have many obligations and we should try to accommodate everyone as far as we possibly can. It's not always possible, but if you can come to some arrangement, I am happy to participate in that. I think our work is done for this purpose, isn't it, for today's purpose?

MS PRIOR: I think so.

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, is that fine with you?

MR MARTINSEN: Yes, thank you.

THE SENIOR DEPUTY PRESIDENT: Thanks very much, everyone. Thanks for attending. We're adjourned.

<ADJOURNED ACCORDINGLY [2.30PM]