C2007/3570, Transcript of Proceedings [2007] AIRCTrans 652 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17762-1

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

10.07AM, THURSDAY, 15 NOVEMBER 2007

Continued from 14/11/2007

PN816

THE SENIOR DEPUTY PRESIDENT: Good morning everyone, please take a seat. Perhaps if Mr Genrich could resume in the witness box.

<PAUL GENRICH, ON FORMER OATH [10.07AM]

PN817

THE SENIOR DEPUTY PRESIDENT: In that case, Mr Martinsen, you resume your questions thanks, unless there's any other business we have to attend to.

PN818

MS PRIOR: There is no other business.

PN819

THE SENIOR DEPUTY PRESIDENT: Okay, thanks, Mr Martinsen.

<CROSS-EXAMINATION BY MR MARTINSEN, CONTINUING

PN820

MR MARTINSEN: Good morning, Mr Genrich?---Good morning, Mr Martinsen.

PN821

Mr Genrich, I just want to go over some of the items Senior Deputy President Richards directed us to address. I'll start with the hours of work in the new job, the job that was offered. In your affidavit, or in your response received yesterday you stated that I would get 40 hours, 40 usual hours and that would constitute 38 hours overtime plus two hours - or 38 hours straight time plus two hours overtime?---That is correct.

PN822

When was this made clear to me?---I don't have a specific recollection of discussing the hours. I made the assumption that you would come into line with the retail hours that we operate on the business, that all other employees operate under. Yes, if I was remiss I don't know but, you know, we had discussions and I thought I'd answered those questions.

PN823

You don't specifically recall discussing the hours?---Not specifically, no, because there are normal - it's the normal way we run our business, normal hours.

PN824

Is it also normal that many of your staff are salaried and they don't get two hours of overpaid for work, paid additional money for the Saturday work?---They do get paid, Jeffrey, we covered that yesterday. They have a negotiated salary package which covers all hours worked.

PN825

Right. So they don't actually get a breakdown of two hours of overtime, they get a lump sum which includes everything?---They get a weekly salary.

PN826

And that's based on what, $17 an hour times 40 hours and - - -?---It's not based on $17 an hour.

PN827

On payslips that you give them does it not have an hourly rate on them?---That's averaged hours for the purpose of our software.

**** PAUL GENRICH XXN MR MARTINSEN
PN828

So when you told me I was getting $17 an hour how did I know that wasn't an average?---I didn't say that you were getting $17 an hour. I maintained that we would maintain your current rate of pay, there would be no change to your hourly pay.

PN829

But my pay was $17 an hour for 37 and a half hours in a week, there was no overtime in any day, there was, you know, the Saturdays weren't overtime so, you know, at what point did you discuss these hours, this change in my hours?---Okay. I didn't know what Marius had actually put together in your original package, I wasn't privy to that discussion. I knew your rate was roughly $17 an hour. My intention, Jeffrey, was to maintain your hourly rate of pay and bring you into line with all other wage earning employees in my department, and that your 38 hours was your normal hours Monday to Friday, 8.30 to five, and that would then run out to two hours overtime after 38, and anything else worked after that would be overtime also and paid as overtime, that was my intention.

PN830

So you didn't know what my actual terms of my pay were under Marius when you said you were going to keep me at the same rate of pay, you didn't know what the other conditions?---No. I knew you had an hourly rate, I was going to maintain that hourly rate across award conditions.

PN831

And you assumed that I would assume that all the other conditions would change?---What we assumed and how much I discussed with you I can't recall, but the intention was to give you the award base.

PN832

But you cannot recall if I - - -?---Sixteen months ago, mate, I'm sorry. I'm doing the best I can from 16 months ago.

PN833

Well, it just seems like an important that you might remember?---Specifically, no. I know we had discussions, Jeffrey.

PN834

Okay. But you certainly didn't give me anything in writing to spell it out?---No, I didn't, Jeffrey. There would be evidence otherwise.

PN835

Are all your salesmen salaried as you call it when they're working on an average hourly rate?---They're all salaried, my salespeople are, and other staff are also salaried.

**** PAUL GENRICH XXN MR MARTINSEN
PN836

Right. So what was to stop me from thinking without you specifically stating as such that I wouldn't also have then been one of those salaried position people?
---When I said I didn't - wasn't completely aware of all your conditions of pay, I was aware that you were paid by the hour, therefore you're a wage earner, therefore you weren't salaried, therefore I weren't - we didn't need to discuss salary base because you weren't on a salary.

PN837

All right. Did you know I had an RDO in my home furniture position?---Yes, and that was unpaid.

PN838

Yes. And did you discuss that I wouldn't get an RDO - - -

PN839

THE SENIOR DEPUTY PRESIDENT: Sorry, what's this about an unpaid RDO?---Okay. At the time - sorry, Senior Deputy President, my understanding
is - - -

PN840

There was an RDO?---There was an RDO.

PN841

That was paid?---In lieu.

PN842

That's right?---So he wasn't earning extra and he wasn't - the remuneration was less in that week.

PN843

Okay. The question is, were you aware that on each alternate week Mr Martinsen availed himself of a day off at his election in exchange for unpaid work on Saturdays?---Yes, I was aware he had an RDO.

PN844

MR MARTINSEN: Do you recall discussing that I wouldn't get an RDO in my new position that was offered?---It's something we may have discussed, would have discussed, Jeff. I'm not entirely certain of what we discussed in those terms but we probably did.

PN845

And probably did. You base that on what?---That we had discussions before between - - -

PN846

But you don't recall any discussions?---Specifically word by word, no.

PN847

THE SENIOR DEPUTY PRESIDENT: Mr Genrich, can I just ask you how does this hourly rate of pay work? Is your standard working week 38 hours is it?
---Under the award it is.

**** PAUL GENRICH XXN MR MARTINSEN
PN848

So how do you get to 40 hours?---Sorry, our retail hours of operation across the business is 8.30 to 5 o'clock Monday to Friday. We have a half hour lunch break which is unpaid, that should equate to 40 hours.

PN849

Okay. So in those hours of work, 40 hours, 38 are paid as ordinary hours and two are paid as overtime?---It would be time and a half I believe, yes.

PN850

Okay. And that's effectively your standard working week?---Normal week, yes, sir.

PN851

And any hours worked on Saturday you say were to be paid at the overtime rates, 150 per cent I presume?---There's a short time, I think an hour and a half at time and a half, and then subsequent hours become double time.

PN852

Okay. So it would be the applicable overtime regime, 150 per cent moving to 200 per cent upon the award graduation I presume?---That's correct, Senior Deputy President Richards.

PN853

So that's the basis on which you intend to - you say you intended to remunerate Mr Martinsen, is that right?---That is correct.

PN854

And you would pay him on the basis of $17 an hour, that being the rate that
was - - -?---I would maintain his current hourly rate.

PN855

So you say you told Mr Martinsen you'd be maintaining his current remuneration or earnings?---Hourly rate.

PN856

His current hourly rate. And can I just come back to this; do you recall telling him that he would be paid for Saturday work, or was it taken for granted because it's an award obligation, or what?---My recollection would be - I haven't got a recollection specifically saying that, but if we discussed those conditions I would have said exactly that, he would be paid for Saturdays. And I'm sure Mr Martinsen would have been aware that we didn't have an RDO structure in the office equipment department. I can't give a specific answer for that recollection because I don't recall word for word, discussion for discussion about the conditions we laid down. But my intention was to bring him into line with all other employees in my department. I did not need another exception, sorry, in remuneration, I wanted to bring him in line and maintain his rate of pay, and offering five days plus a Saturday would give him extra remuneration when he worked on the Saturday. So I believe I was offering a good deal.

**** PAUL GENRICH XXN MR MARTINSEN
PN857

Okay. Mr Martinsen, thank you?

PN858

MR MARTINSEN: Just on that point, you just said that most of your employees are on a salaried position, so you just said - - -?---No, I didn't say most of my staff are on a salaried position.

PN859

Well, all of your sales staff I think you said?---Correct.

PN860

And some of your other staff?---Two, yes. There's more storemen than - - -

PN861

So when you say that people work 38 hours and get two hours overtime plus overtime on a Saturday, that doesn't apply for any of your full time permanent staff I would think that were in sales or in the - - -?---It doesn't apply to salaried staff because they have a negotiated package.

PN862

Right. What proportion are salaried that don't get the benefit that you just explained to the Commission of overtime and paid for the Saturdays, what percentage of those employees do you have that don't get those award benefits?
---They all get award benefits, they all get paid as a negotiated salary package, that they have an allocated number of Saturdays per annum and that's factored into - we calculate an award base of what those hours would be at their classification. We then give them above award wages, above award salary to attract that person on salary.

PN863

I don't see anywhere in the award, the Retail Industry Award, that allows for a salary per se to exclude payment of overtime and to be an all inclusive payment?
---I'm not sure where you're going. You weren't on salary. What's the question, sorry?

PN864

Earlier in your statement yesterday you stated that I would be trained in the position, is that correct?---Yes.

PN865

At what point did you discuss my training procedure and when I would be coming in for the training and who might be training me up in this position?---I may not have discussed that directly with you. It's, again, I've made an assumption. Everybody gets trained. I'm sure you were trained by Marius when you first walked in the front door.

PN866

But you didn't discuss anything about training?---Training comes with every position. Yes, I probably - I don't know if I did. Again, I can't recall that, because that's an assumption that everybody gets trained in every position. I'm learning every day, Fred still gives me training. I'm not sure that we discuss it, but it's an assumption that everybody, every employee should make, that they will get training.

**** PAUL GENRICH XXN MR MARTINSEN
PN867

When you gave me the job description on 1 August approximately, paragraph 1, I'll read it to you, says "ales staff, stock inquiries," it states:

PN868

You will be required to have a working knowledge of all stock, to be able to handle sales staff with customer inquires. A working knowledge includes the location and recognition of brands, styles, colours, features, condition and quantity of used and new stock.

PN869

So at what point - I mean, that's a fair bit of knowledge that you required me to have when you handed me this?---Yes.

PN870

Would it not have been proper or relevant at the time to have alleviated any concerns I might have as to the requirement you handed to me, to say that don't worry, I understand you don't have any knowledge in all of these things but we will make sure that you're trained up, and some assurances of this?---Well, firstly, you didn't bring - if you brought some concerns to me, yes, we would have discussed it immediately. What is obvious to me is that we were transferring your skills base from home furniture where you were already doing all those functions with your stock base across the office equipment stock base, and it would have been a walk in the park once someone had spent a few weeks gaining stock knowledge. I considered you a competent person in the role you were in and therefore that your skills base would transfer across easily.

PN871

All right. At what point in our discussion did you advise me I would get 30 minutes for a lunch break and not my regular one hour that I've had for almost three years?---I didn't know you had an hour at that point. That was negotiated with yourself and Marius. I don't believe you told me that you had a - I don't recall, sorry, I don't recall you telling me you had an hour, and I wasn't privy to your negotiations with Marius. All my staff take the award breaks, they are also afforded flexible hours to run errands, see doctors, dentists, hair cuts. I don't act as a policeman with a time clock, if that helps. Yes, you weren't privy to all that, but there's that many things going on at any one time it's hard to track - relay all that information. I expected a smooth transition and that for yourself into the role and all those things would come across and be lent to you.

PN872

Surely you must have been aware there was a substantial difference between my hours and your office hours?---I was only - - -

PN873

Because you stated you wanted to bring me in line with your staff's department's hours?---Choice of words. I was aware of your RDO.

**** PAUL GENRICH XXN MR MARTINSEN
PN874

You were aware of the RDO?---I've already mentioned that to Senior Deputy President Richards. I was aware that you were getting an RDO because there were days when you weren't there, but I was also aware it was an unpaid RDO to compensate for your Saturday.

PN875

So you don't recall not telling me that I would not be a salaried person?---It was never my intention to put you on salary because you weren't on salary.

PN876

But you never discussed it with me?---My understanding was you were on an hourly rate.

PN877

And that's all you understood about my job. When did you discuss with me that I would be a supervisor, and what do you mean by position of supervisor?---The role would carry one offsider to assist in carrying out the duties. Now, this is a job description, I'm not trained in HR, it's not a role statement, it's a support outline. Yes, there's going to be omissions. I put it together over a couple of weeks. It's a first draft, things have changed, I didn't intend it to be a complete legal document. I just wanted to get you some information so you had an opportunity to see what the job was all about. Now, the position - the job description does mention in the key objectives - it was after that, the second draft - six, paragraph 6, planning your work, the last sentence:

PN878

Your work will be done through a balance of individual effort and directing and working with store staff. To get the best out of your staff's time it is important that you have all your staff's daily work as well as your own planned.

PN879

Now, I wouldn't have put that in if I didn't intend you to have a staff member.

PN880

But planning the work - - -?---Did I need to just read it to you? I'm sorry.

PN881

Does the first sentence not say:

PN882

As required your supervisor will walk the floor with you to discuss the list and list the work to be done.

PN883

?---It certainly does.

PN884

So I wasn't really going to be a supervisor per se?---There's all sorts of supervisors at different levels, there's a hierarchy.

**** PAUL GENRICH XXN MR MARTINSEN
PN885

When did you discuss - - -?---You report to me. You report to me as per the front page, therefore I am your supervisor.

PN886

So you or Kelvin, your 2IC?---Correct.

PN887

Or any sales staff inquiries for salesmen, it required me to do something, be required - - -?---That's not supervision as much as liaising.

PN888

But if they told me to do something I'd pretty much be required to assist your salesmen, because customer service is everything is it not?---Exactly. No customers, no business.

PN889

So I'd be reporting to your sales staff in addition to you and Kelvin?---To assist them, yes.

PN890

And at what time did you tell me that I would have an offsider, that I would be running a crew?---It's in the role statement. Did you read the role statement on 1 August?

PN891

It doesn't state that I would be given one offsider?---It's not a - as I explained, Jeffrey, it's not a role statement, it's a broad outline of a position I was wanting you to take and fill.

PN892

The thing with broad outline, does that not leave room for lots of questions that probably - - -?---Did you ask me questions, Jeffrey, when you read it? I recall you rejected the job and called it a glorified storeman's position because you just wanted to denigrate the position.

PN893

Okay, I called it it's appropriate name?---Filling - working in a dungeon filling holes behind me. That's not quite - - -

PN894

MS PRIOR: I'm not sure this is very useful, Senior Deputy President.

PN895

MR MARTINSEN: So it would be a hands on supervisory role where I would be working and essentially doing most of the jobs, and if I required someone to assist me I would be able to call Brian or Kelvin or someone to see if they had a free guy that could come and help me move stuff? Because is not most stuff moved by trolley and only the very large cumbersome things require two or more people?
---We've covered this. I've always said there was an offsider in the position. On other occasions when there's larger projects where we're relaying an area of the floor and store staff are available, these storemen from the dock also become available and they would be under your supervision to complete that project.

**** PAUL GENRICH XXN MR MARTINSEN
PN896

Right. So I'm not really a supervisor, I'm just there as a working hand possibly with a little more maturity than your 18 year old general storemen in that light?
---You mean maturity or experience?

PN897

Both. Well, I mean more maturity, because experience I had none, and any one of your 18 year old storemen would have clearly been telling me where to go in a sense to get stock or what stock is. So would not my underling be teaching me essentially, my offsider as you put it, would he not be - - -?---We don't employ underlings. You would have probably a few days of learning where stock was located specifically. You already knew we had warehouses and factory too, a warehouse in the storage floor and the showroom, and you would have been aware of the stock in the high rise. You'd soon educate yourself to association of what stock was located in those areas, therefore it wouldn't take very long at all. An 18 year old storeman would have far, far less supervisory capacity than a gentlemen of 45 or mid 40s. I'm not sure where you're leading with that because it's obvious that someone who was - you were already supervising storemen that were given to you to assist from office equipment and given to yourself to use and supervise on a regular basis from my department. You were already doing what is outlined in the job description.

PN898

When I called for staff to assist or Marius would call for someone to come up and help us move something, is that truly a supervisory role, or are they just coming along to give me a hand to pick up the other end of the sofa? I mean, am I really in any sort of supervisory capacity when you send over a worker and to pick
up - - -?---You certainly are. They are currently in your control, they are working for you.

PN899

But wouldn't they be working under Marius's supervision because he was the supervisor?---If you were on the other end of the sofa and telling him where to put it, Jeffrey, you are supervising him, it's really obvious.

PN900

But you don't recall specifically telling me I'd have an offsider?---There's lots of conversations I don't recall specifically, but it's in the role statement - sorry, in the job description.

PN901

Which is a general outline?---Yes.

**** PAUL GENRICH XXN MR MARTINSEN
PN902

So some things are missing and some things might be added. Thank you. If I wasn't as gifted as you seem to have assumed I would have been in the new position what would have happened if I didn't know where anything was, I wasn't able to organise it? I see in your job description that you mention that I would be required to do accurate and detailed stocktakes. Did I have, to your knowledge, any experience in doing accurate and detailed stocktakes?---Stocktakes, look, really it comes down to an overall situation. Marius found you competent, I'm sure you did all those - I would assume that you did all those duties with Marius. Part of being in any - working for any company is that you have attention for detail and you do duties that are required. All my salesmen do stocktakes, I have storemen doing stocktakes. I would assume that part of your duties as assigned by Marius would mean that you would be doing stocktakes and have attention to detail. I'm sure Marius wouldn't employ or keep on a person who was incompetent in those regards, and therefore I believed, and from what I saw during the shutdown period while you were working home furniture for me, is that you had a very strong product knowledge, you were working well with customers, you were able to fill their orders and keep the floor filled, you had attention to detail. You also had good skills with the day to day money taking. I was never reported that there was an outage in the till from the home furniture department during that time. It tells me you're good with figures, it tells me you've got attention to detail. I had no qualms about bringing you across into the role.

PN903

But you had no knowledge of whether I could do or had done accurate and detailed stocktakes?---For the reasons I just outlined I didn't need to. I believed that you were capable of doing those duties.

PN904

If I wasn't, back to my question, competent in this position that you were offering, what would have happened in your mind?---Like any employee who wasn't up to performing as required, firstly I would re-evaluate training, re-evaluate their duties, counselling would then follow as a coaching situation. I mean, I don't go out hiring and firing people for the fun of it. I want to get a job done. I don't have time to replace people willy nilly. So yes, I would have looked at training, looked at coaching, looked at counselling, the natural progression.

PN905

And you did all of those things with Toby, the salesman we've discussed?---Yes, I did.

PN906

And you were unable to turn him up to the few things that he - - -?---That's correct.

**** PAUL GENRICH XXN MR MARTINSEN
PN907

So a demotion, if the training wasn't adequate then I would be demoted down
to - - -?---I didn't expect that - - -

PN908

MS PRIOR: Senior Deputy President, I don't think this is relevant. I think Mr Genrich's answered the question. There are no provisions in the award nor in the role description that's been offered that relates to the power to demote. I don't know where this is going and I'm not sure that it's helpful.

PN909

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, are you pressing on with this line of questioning or have you finished it?

PN910

MR MARTINSEN: I'll move on.

PN911

You stated yesterday, Mr Genrich, that my position would no longer exist, that I was transferred into your department?---Correct.

PN912

Okay. So would I be - would my accrued benefits of long service leave and any others, would they have rolled into my new position, or would I be starting the new position like fresh from day one?---Any entitlements that you had accrued, whatever they were, I won't specifically state any of them because I'm not trained in entitlements or pay work, anything would have rolled across seamlessly because you had not ended employment with Absoe, it was simply a transfer from one department to the other. It was meant to be seamless. There would be no ending, no starting, simply working with different people in a different building that you had already been associated with.

PN913

And at what point did you discuss that with me?---You never asked, I assumed you would know the difference.

PN914

As a manager is that not part of the responsibility to manage and supervise?---If I could do everything that was meant of me as a manager I'd probably be working for a corporation or somewhere else in Absoe. There's too many functions I'm required to do, too many demands on my time. Hey, I'm sorry, Jeff, that I didn't tell you, but some of those things just get overlooked and get assumed, and you didn't ask the question. At the time I would have - I'm sure I gave you as much information as I could at the time with what I could - - -

PN915

You keep saying - sorry, you keep saying that I never asked for this information. But on the meeting that you don't recall where we walked around and I asked you to put something in writing, the terms and conditions in writing, okay, those were the issues that I wanted addressed. As far as the job duties I could assume that I'd be required to do anything and everything that I was told to do, and that was a given whether it be in a supervisory position or otherwise. I would be required to clean the toilets if asked, I'd be required to do any job whatsoever. That wasn't what I was concerned with, that was a given, given my history with Mr Drake and his odd jobs that he'd come around and ask me to do. What I wanted to know was the issues of the RDO, of the one hour for lunch, of the paid on Saturday or whether I'd be a salaried person, those were the terms and conditions that I wanted you to put into writing. And then when you came and gave me this job description the first thing I did was ask you about the stuff that was missing, the stuff that I wanted to know about, the stuff that I was concerned about. And all you said was that you'd keep my hourly rate the same provided the performance was there. You didn't even address any of those issues. You didn't canvass them, you didn't allay any of my questions in relation to that. It was simply 17 bucks an hour provided I was performing in the position.

**** PAUL GENRICH XXN MR MARTINSEN
PN916

THE SENIOR DEPUTY PRESIDENT: Is this going to end in a question?

PN917

MR MARTINSEN: Pardon?

PN918

THE SENIOR DEPUTY PRESIDENT: Is this going to end in a question?

PN919

MR MARTINSEN: The question is why did you not put the terms and conditions on the description, the relevant matters of which I was concerned about?---Okay. On 11 July when I initially went down with Fred to discuss with you the - offer you the position originally in home furniture you asked me, Paul, can you put down in writing to tell me about the job, put it in writing for me. Okay, I did that about the job. I don't recall you specifically asking terms and conditions at all. We did discuss certain things. Obviously your admission there in your statement before was that we were going to maintain your hourly rate, you said that, so we did discuss, obviously we did discuss some terms and conditions.

PN920

But in my hourly rate did you not include that proviso provided the performance is there?---I don't put a hangman's noose over anybody's head, mate.

PN921

Are you doing anything - - -?---It's a constant thing that everybody is employed on a daily basis on their performance. If I don't perform I'm gone, or I'll be spoken to by Fred, and any of my employees also have to perform. If I have staff that don't perform my department sinks, the department crashes, the business may crash. Where do you want to go?

PN922

But don't you think, Mr Genrich, that stating to me providing the performance is there, to a new guy with zero experience in your department, that might kind of set the person to wonder whether there is anything security in this given that they don't feel that they have that performance level?

PN923

MS PRIOR: Senior Deputy President, Mr Genrich has made it very clear in a number of answers that he doesn't believe that he put any form of rider on the hourly rate issue. This was raised yesterday as well. I'm not sure that this question which is based on an assumption or presumption, that the conversation happened in the manner that Mr Martinsen has previously put to Mr Genrich, and Mr Genrich said no, it didn't happen that way, is actually assisting us.

PN924

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, do you want to move on with your questions?

**** PAUL GENRICH XXN MR MARTINSEN
PN925

MR MARTINSEN: Thank you.

PN926

What would my seniority have been had I come into your department?---Okay. Senior Deputy President Richards, I'd locate - although I hadn't thought of it, considered or looked at or made a decision at the time, I would put him at a store worker level 3 in Queensland General Stores Award, which we operate all our stores under. Level 3, I don't have a level 3 currently, and I would think it would be fit a supervising leading hand as outlined in the job description to be.

PN927

THE SENIOR DEPUTY PRESIDENT: Are we talking about a position here that we're talking about relative to the former position? What was known to you of the degree of seniority if any of the former position relative to the position that was offered?---I only knew as a salesman, I didn't know his classification, being storeman and - sorry, salesman and storeman in the home furniture department, I'd put him at a level one salesman, sales assistant under the classifications in the retail awards. He didn't have any staff directly under his control on a regular basis, but I don't know if he was promoted beyond that by Marius, but that would be my assumption. He wasn't my employee so I didn't need to go nosing in his business.

PN928

MR MARTINSEN: So, Mr Genrich, you just mentioned an award for your storemen that they're under. Which award is that?---General Stores.

PN929

General Stores Award. So I would have been under the General Stores Award?
---We are required to classify our staff according to their duties, and yes, it's a stores role, a merchandising role. I would have to use that classification. It didn't change your experience or the fact that I intended to have you in sales and I wanted to maintain your sales base, your sales skills on Saturdays, and I also would have indicated to you that it was a stepping stone back into sales in OE.

PN930

Back into sales?---Full time sales. That was the intention. I'd be the first to say I'm not the best communicator in the world, if I didn't relay that I'm sorry, but that was the intention.

PN931

Did you ever tell me I wouldn't be under the Retail Industry Award in this new position?---I didn't need to because you didn't ask, and also the role statement's there. And if you are aware of our requirements as a business we have to classify our staff according to their duties.

**** PAUL GENRICH XXN MR MARTINSEN
PN932

So I would have been under a completely different award as well?---But it would not have changed your remuneration - sorry, your rate of - hourly rate of pay. There was no intention to change that. Classification is separate.

PN933

I haven't read the Storemen's Award so I don't know what the distinctions might be in it?---Level 3 has supervisory capacity.

PN934

I don't know, just there's a different award. Do you have a large staff turnover in your department, Mr Genrich?---I wouldn't call it large. We have staff turning over for various reasons. Most staff that leave are usually leaving on their own accord.

PN935

Ms Errilyn Maurice's statement to the Office of Workplace Services, she said she was under an extreme amount of work, a work load because she had something like 87 terminations to deal with that fiscal year. Would a large per cent of those been to the office equipment department?---We would have had a share. If there was a total of 87 for the company, then yes, obviously we would have had a share. As I said, terminations happen, people leaving happen for all different reasons. There's retirements, there's resignations and yes, there are people who are terminated.

PN936

So that's a fair amount of staff turnover, would you say that's a fair call?---For all different reasons, yes, I've already said that.

PN937

If we compare the new position, Mr Genrich, would you say - I think we've canvassed this once already, but would you say it was a labour intensive position?---There was effort required, labour intensive, no. I'd say, well, medium, a medium level of effort required. You're moving furniture. I understand that you were doing sales work in home furniture. But in so saying that, by comparison that would be the only time when you wouldn't be doing the same thing you weren't already doing in the new position.

PN938

Was this essentially a labour position was it not, moving desks, cleaning them, unloading trucks, maintaining floor stock levels, erecting displays?---Yes.

PN939

Is this not all labour - - -?---It's not hard labour but it's labour.

PN940

It depends on the job I suppose. You keep suggesting that you were going to have me in a sales role. Is it not true that you were simply considering having me in that sales role?---I believe I used the word considering when I talked to Mr John Wilson, as you said yesterday. The intention was to maintain your sales base, sales experience in the company. If I didn't convey that correctly I can't recall, but it was - the intention was, or else why would I offer you Saturday sales?

**** PAUL GENRICH XXN MR MARTINSEN
PN941

If that was the intention why did you not put it in the job description?---The job description was a broad outline of the position as I've already stated. It wasn't a role statement, it wasn't tailored particularly to Jeff Martinsen, it was written simply to formalise the position of - - -

PN942

But you said you tailored it for me, you spent two weeks tailoring it?---Tailoring it to the position. I didn't tailor it to yourself, Mr Martinsen.

PN943

So this is a generic job description that is used for everyone?---It's a job description for the role of, as stated on the piece of paper, merchandising storeman, no other position, it is for that position.

PN944

So that position doesn't have a sales component to it?---It would otherwise say merchandiser/storeperson/salesperson, yes, it would if that was the case. It was tailored to be the merchandising storeperson.

PN945

With a vague possibility that you might get me working in sales on a Saturday?
---That was, in your experience, that was a condition - or not a condition, that's not the right word - a role I wanted you to stay in in sales. So it's external to the merchandiser/storeperson's role, but it still was for Jeff Martinsen to work at Absoe.

PN946

So my real forte would then in your opinion have been sales and you would have been wanting to get me into sales and to utilise those skills?---You had several fortes. You obviously were a merchandiser, you obviously were working in stores so you had stores skills and experience, you also had sales experience and skills. I was able to utilise two of your skills immediately with stores and merchandising. I would also intend to use your sales skills on a Saturday with a view to bring you back into full time sales.

PN947

Okay, just a couple more questions, Paul. When you spoke with Mr Wilson of the OWS and you came up with two third sales, one third stores, yesterday you testified that, you know, you thought about it more in depth. You base your 75 per cent now on your experience in working at that role so to speak, is that correct?---Yes.

PN948

Did you not, when Mr Wilson asked you those things, use that same level of skill or knowledge to have decided at that point in time, or did you just sort of flippantly pull a figure, or did you apply those years of experience that allow you to get to 75 per cent, did you not apply those at that time? I'm just curious as to how you could apply the same level of years experience and come up with two different, dramatically different outcomes?---As I covered yesterday, it was an off the cuff answer. I had more time to think about it afterwards, immediately afterwards, and a better assumption, a better calculation is a higher figure for stores. In my department in office equipment I have six sales people including myself, we have normally six to eight storemen working the floor. The storemen in office - sorry, the salespeople in office equipment are full time salespersons, they have a content of merchandising and stores work as well, which is probably 10 to 20 per cent of their time, and they have an equivalent - sorry, more than equivalent number of storemen to process the orders out, therefore it would read across to me that home furniture also having two salespersons somewhere they must have had someone who did stores work more so than a third.

**** PAUL GENRICH XXN MR MARTINSEN
PN949

Sorry, did you say it's something like six to eight storemen working on the floor?
---That's correct. I have other - another workshop who don't work on the floor with four to five staff there, but they do provide stock.

PN950

Eight people roughly currently doing the job that I would be - - -?---Currently I've got six, but because it's a quieter month I lay people off due to lack of work, or don't replace them when they leave.

PN951

And the last question, if I can take us back to yesterday when you stated you have no understanding of the term redundancy, is that the case, you have no idea what redundancy means?---No, I didn't want to offer a definition to the home furniture department because it's illegal under the legislation. I don't know the legislated terms for it.

PN952

The Senior Deputy President clearly asked you if you had any concept of the term, and you said you didn't. Do you stand by that?---I don't recall that question, I'm sorry, specifically.

PN953

THE SENIOR DEPUTY PRESIDENT: Well, to be frank, it's an arid investigation of whether or not, you know, the witness has any typical understanding of the concept or not, doesn't go to what the facts are.

PN954

MR MARTINSEN: No. It's just I was wondering why he used the term redundancy in his email to Errilyn if he just didn't understand?---I'll answer that. I passed on your request. I didn't put inverted commas in the email, but you asked me, Paul, can you find out for me what my likely redundancy payment will be at the end of August. Is that close to the email? That's essentially your words passed on to Errilyn, your request which I passed on. And I would have said to you I'll ask Errilyn for you.

PN955

I can't think of any more questions.

PN956

THE SENIOR DEPUTY PRESIDENT: Re-examination?

<RE-EXAMINATION BY MS PRIOR [11.00AM]

PN957

MS PRIOR: Mr Genrich, I'm going to take you to a session that we'll call a conversation that happened about a month ago in your office where I was present.

PN958

THE SENIOR DEPUTY PRESIDENT: Sorry, are these matters that arise out of cross-examination?

**** PAUL GENRICH RXN MS PRIOR
PN959

MS PRIOR: Yes, it does. It's quite - it actually goes to some questioning which has only just happened.

PN960

Mr Drake made a statement about the role that Mr Martinsen had been performing in home furniture, and he said, or he made the point that it was - he saw it as two thirds stores or merchandising and one third sales. You then went on to make the point that it was more than that, you said it was 75/25, and you then went on to discuss why you thought it was that. Do you have any recollection of that conversation?---Yes, I do.

PN961

There was quite a bit of discussion about a gentlemen named Toby. Now, does Toby work for you?---Toby? I've got two Tobys, and historically I've had one working for me in stores at the moment, but I think you're referring to Toby Tyler, who no longer works for us.

PN962

Okay. The role description that you provided for Mr Martinsen, did you make it clear in the conversations you had with him that that was not a sales role?---I don't recall specifically saying it wasn't, but the - I would have outlined the position as it was.

PN963

And so the sales you were offering on Saturday on a rostered basis was in addition?---Yes.

PN964

And do you have a specific recollection of making that point in one of your conversations, or perhaps more than that, to Mr Martinsen?---In addition? Jeffrey never objected to working - I mean, some people have issues with working extra hours on a set day, Jeffrey never raised it as an issue. Additional hours, I would think that I did mention that, that it was over and above the 40 hours worked during the week, but obviously the frequency I hadn't decided because it hadn't been set on. I would have to work on a roster to fit it in with the existing schedule.

PN965

Do you remember discussing that element of it with Mr Martinsen, the fact that you had to fit it into a roster?---A specific recall, no, but it could well have been discussed. I try to be informative, I try to convey my point but, you know, 16 months ago is a long time ago for specific points like that.

PN966

Is it your usual procedure to induct new employees?---Yes, I have an induction schedule to run through, whether it's fire training, location of various buildings, introduction to other departments.

**** PAUL GENRICH RXN MS PRIOR
PN967

When Mr Martinsen came across from what was effectively the home furnishing role, although that was now located in your department, would he have also had an induction, training tailored to his needs?---Yes. As he already knew a lot of the company procedures and personnel it would have been a cut down version to suit his needs, but yes, he would have had an induction.

PN968

You were asked a question of whether Mr Martinsen would have reported to salesmen within office equipment. Could you explain to the Commission the relationship that somebody in Mr Martinsen's role would have had with the sales team?---Okay. He would be asked to assist with information on stock, he would also be asked to assist or liaise, work with the salespeople. Salespeople have allocated suppliers and they manage the stock levels of those suppliers, therefore there's displays to be done of stock on display. They'd be asking and working with Jeff to merchandise those areas. So probably seen as a junior role, junior to the salespeople through no fault of Jeff's, but there is a hierarchy required and - - -

PN969

Would that have been because of the salesmen's power in relation to their sales environment?---Yes. They will need information and they need to ask that of Jeff, and Jeff needs to assist them with that information as part of the role.

PN970

So his role, although it may have been functionally senior because he was a supervisor, had a supporting relationship to the sales team, is that what you - - -?
---Definitely.

PN971

That's what you're saying isn't it?---Yes, he's definitely supporting the system and liaising.

PN972

Do you have a copy of your statement there, Mr Genrich?---The affidavit?

PN973

Yes. Could I take you to addendum 1 of your statement, the role description, could I take you to - - -?---Addendum 2?

PN974

Two, sorry. Can I take you to item 7 of that? Why did you include that element in the role description?---That's part and parcel of being a supervisor, is that your staff perform, and part of moving through any company you're only as good as the people under you. You need to be a trainer, an evaluator all the way through. So Jeff, I'd expect Jeff to demonstrate to me that - sorry, the person filling the role would be able to demonstrate to me that they are capable of managing, supervising staff at their level in consultation with myself.

**** PAUL GENRICH RXN MS PRIOR
PN975

Senior Deputy President, I'd actually like to ask a question which doesn't quite go to the questioning that has been elicited by Mr Martinsen, however, I hold the view that the last question that you asked yesterday to be addressed, and that is, what were the elements of sales, stores and merchandising activities, responsibilities and duties within the alternative role, I don't know that that was specifically covered, and that's something that I would like to get from - - -

PN976

THE SENIOR DEPUTY PRESIDENT: Well, perhaps I might - Mr Martinsen, do you want to cross-examine on that issue?

PN977

MR MARTINSEN: I'm sure I would like to but I don't know.

PN978

THE SENIOR DEPUTY PRESIDENT: There was reference to Mr Genrich's views about the proportionality but in relation to the alleged difference between his claims before the workplace ombudsman and that which he represented in his affidavit to this Commission. So there's been questioning on that issue. So if you want to respond to that?

PN979

MS PRIOR: I agree that there's been questioning in the issue, but we didn't specifically go that far, and that's my concern.

PN980

THE SENIOR DEPUTY PRESIDENT: You might use the opportunity to clarify the breakdown that he's provided through that line of questioning through Mr Martinsen.

PN981

MS PRIOR: Mr Martinsen talked to you about what - or questioned you about what he saw as the different proportions in the role of home furnishing and then some of the elements of the merchandising role that you had created. What did you see as the proportions between, for example, the stores and merchandising role that would have been within the job you created?---Well, there's no sales content in it. I'd put it at 50 per cent stores, 50 per cent merchandising. So to expand on that, the Saturday sales role would have been entirely sales.

PN982

In terms of the types of duties involved, how different do you see those than the role offered from, I suppose, the scope of the duties that Jeff was performing in home furnishing?---By activity they were identical. The stock was different, yes, except I was fully aware that at times Marius purchased - Marius Wyttenburg the manager, purchased filing cabinets, he purchased desks, he had bookcases, all of the office furniture type which were duly sold, the chairs even, executive chairs, directors chairs type of set, he had those in stock on the floor at any time, some stock of that, so Jeffrey had some association already with elements of our stock. The merchandising he was doing on a daily basis already and maintaining a stores, or maintaining a warehouse storing furniture, be it domestic, he was also doing, so it was fairly transferable as I saw it with changes in physical stock, but they were essentially the same.

**** PAUL GENRICH RXN MS PRIOR
PN983

You were asked a question in relation to turnover, staff turnover in your department. As a manager are you generally aware of turnover across what I'll call the Absoe group, being the departments?---I'm aware generally that people come and go. It's extremely hard with the current employment rate of, is it five per cent currently?

PN984

Unemployment rate or employment rate?---Sorry, unemployment rate. Sorry, the employment rate is 95 per cent, the unemployment rate of five per cent, to find good competent staff, and it's really important for me to retain as many people as I can. I don't want to go through the recruitment process, but occasionally, yes, you have failures.

PN985

Does Absoe employ casual employees?---Yes, we do.

PN986

Do you employ casual employees for periods of time that are more - where there's more demand, or do you intend to employ casuals on a very long term basis?---It's a matter of need. When we're in a busy period we'll get someone, employ someone as best we can. We get a few overseas backpackers from the hostels down the road, simply put a notice up on the board, simply get staff, we need pairs of hands to do the work, not necessarily looking for a long term solution from they themselves, but I need someone to keep the function to work because I can't get long term competent people that I need. Some will stay several weeks, some will stay several months. They're allowed six months under their visa to my understanding. So we end up saying, yes, look, we've got a couple of weeks work for you, and they'll stay several - they can on occasions stay several months, and that attributes to turnover.

PN987

So on a raw basis turnover figures would be swelled by the sorts of people you were just talking about, the backpackers and other people?---Without doubt. It's not our intention to turn them over but we need to function as a business, we need to keep the stock moving.

PN988

So in terms of what I'll call your regular and systematic employees which might be long term casuals and they might be permanent employees, either part time or full time, would you say that there's a high turnover in your department?---It's all relative I guess. It's higher than I want it to be. I'd rather have a static staff base, a sales base as far - a sales staff more stable and long term than the rest, sorry, the storemen. I generally have a crew, a core crew that stay on longer in each group, and then you'll have peripheral guys that keep turning over and you try and replace them. It's higher than I want it to be.

**** PAUL GENRICH RXN MS PRIOR
PN989

You've indicated that you created the role of merchandiser storeman with Mr Martinsen in mind, that you hadn't had one before that?---Informally. We hadn't called it the merchandiser. We had several chaps in a scaled down role in our storage area and filling the floor from our storage areas but we hadn't given it a title. As we had become busier over the last - this didn't happen just last year. We've been trying to keep a leading hand in that position for some years to create a hierarchy in the stores department of the store supervisor and - - -

PN990

THE SENIOR DEPUTY PRESIDENT: I really think we're sort of drifting here, Ms Prior.

PN991

MS PRIOR: Sure. I have no further questions.

PN992

THE SENIOR DEPUTY PRESIDENT: Okay, the witness is excused.

<THE WITNESS WITHDREW [11.19AM]

PN993

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, is that - - -

PN994

MS PRIOR: Senior Deputy President, I am uncertain as to whether you had intended to take a short coffee break, but I must say it would be very useful for me to take some instructions at this time. There's something I do feel I need to discuss with my clients before I do it.

PN995

THE SENIOR DEPUTY PRESIDENT: How long do you anticipate?

PN996

MS PRIOR: Ten or 15 minutes is fine.

PN997

THE SENIOR DEPUTY PRESIDENT: Okay, we'll adjourn until 25 to 12.

<SHORT ADJOURNMENT [11.20AM]
<RESUMED [11.38AM]

PN998

THE SENIOR DEPUTY PRESIDENT: Thanks everyone.

PN999

MS PRIOR: Senior Deputy President, that concludes Absoe's case at this point in time.

PN1000

THE SENIOR DEPUTY PRESIDENT: Okay, Mr Martinsen, would you like to take the stand.

<JEFFERY DALE MARTINSEN, AFFIRMED [11.38AM]

PN1001

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, I have a signed statement before me of some 49 paragraphs in length. It identifies yourself as being Jeffery Dale Martinsen, (address supplied) and is signed before a Commissioner of Declarations and dated on 5/11/2007. Is that your evidence, your written evidence in this matter?---Yes, it is.

PN1002

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

<CROSS-EXAMINATION BY MS PRIOR [11.39AM]

PN1003

MS PRIOR: Mr Martinsen, before I commence cross-examination is there anything in relation to this particular evidence because you have heard our case that you wish to add as evidence-in-chief?---No, I tried to be quite explicit in my written statement.

PN1004

And there are no issues that have been raised or that have come up in your cross-examination of our witnesses that make you want to provide any additional evidence?---Nothing comes to mind. I'm not sure what you mean.

PN1005

At point 4 of your statement, Mr Martinsen - - - ?---Could I get a copy of that statement?

PN1006

THE SENIOR DEPUTY PRESIDENT: Sorry, you don't have a copy of your statement?---I can get one.

PN1007

Yes?---So that was point 4, was it?

PN1008

MS PRIOR: Yes. In the last line you say that it was necessary for you to manage the store in the absence of Mr Wyttenburg's absence, what do you call the management responsibilities that you had while you were looking after the store?
---Generally I would do anything that was required. If something major came up I would contact Marius and seek his instruction on it, small things like purchases or anything of that nature, but basically ensured the store ran smoothly and the sales went accordingly. If I required assistance in doing anything I would arrange for that.

PN1009

So that would have been probably fairly similar to the arrangement you had when Mr Genrich was your manager, is that right?---Yes, it would be very similar.

PN1010

So it was really you didn't have any financial responsibilities or reporting responsibilities or powers to hire and fire, did you?---No.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1011

You were effectively looking after the store and you were the person in charge and responsible for the store?---Yes.

PN1012

At point 8 of your statement you talked about repair of items. Now, you had a work bench, didn't you?---Yes, I did.

PN1013

And repair of stock and preparation of stock for sale were part of your responsibilities in home furniture, weren't they?---If an item came in that was repairable and we thought it was cost effective to spend the time and energy repairing it we would do that. Usually it would amount to putting a screw in something, something minor like that. I would not say I had any expertise in repairing furniture, but most things we sold it as is or if there was a screw loose we would essentially put another screw in it to make it saleable. But as far as constant repair it happened very seldom.

PN1014

But I would have assumed that the assessment about whether repair was required on items often took place when you actually took delivery of stock?---Yes, the truck drivers would bring the stock in and drop it off. The good stock we put down in the HF area and the lower quality - - -

PN1015

Is that home furnishings?---That's correct.

PN1016

So would that go directly to the floor or would that go to some form of holding bay for home furnishings?---It would generally go straight onto the floor. If it was good stock we'd put it all into the lower showroom and the lower quality stuff we'd put up into what we called factory 2 which was our secondary showroom.

PN1017

Yes. If repair work was only minor would it have been essential to have had a work bench, or was that really related to the type of repair?---I built the work bench so that I could utilise it and then it turned out that it could get utilised very much because most of my time was spent doing sales and there were very few things that were repairable. They're either a simple thing like a screw missing off a table leg or something of that nature, but yes, it could have been done on the shop floor just as easily as on my work bench.

PN1018

I want to put a description of stores work to you and I want to see if you agree with that. The range of things that comprised stores work, taking delivery, repair, warehousing, putting into stock, merchandising and the various movements of furniture required for a transaction, cleaning and housekeeping and the occasional assisting of other departments to unload stock, would you agree that they're all stores work?---Well, I didn't generally assist other departments unload vehicles. In fact I can't really remember that happening.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1019

So the getting of extra pairs of hands was really a one way street. Home furnishings got extra pairs of hands from other departments but you tended not to lend an extra pair of hands?---It was generally the case, yes.

PN1020

And you just said you can't recall ever giving somebody a hand?---If I was walking by and there was five guys who were struggling with something I might see if I could - - -

PN1021

You'd give them a hand?---Yes, yes, but it wasn't - I was never sent up to go and assist someone in another department.

PN1022

Okay. But you'd agree with me, wouldn't you, that that's a fair umbrella of stores work?---Yes, I would say we did all of those things but just not in the degree that has been highlighted here.

PN1023

So I just want to go through the process of making a sale, any sale. You've got an item on the floor and it's purchased by the customer, what happens to it then?---It would depend on the customer's requirements. If they wanted to take it right then and there we would - often Marius and I would pick it up or we'd tip it up and put it on the trolley and wheel it out to the back door and put in their trailer. If it was going to be delivered at a future time we would pretty much leave it where it was and not do anything with it until the day that it was going to be delivered.

PN1024

Probably put a sold sticker on it I would have thought?---We'd put a sold sticker on it, sure, and sometimes we didn't even do that because the sales were slow so we knew what items were sold. If they were going to be sitting there for a substantial period of time, yes, we'd put sold stickers on them so we could keep track of that, but you know, if in a week they wanted it delivered we'd look at our arrangements for any deliveries that were going out on the courier on that day we would get it to the back door if we had the time. If we were busy doing sales or other things - - -

PN1025

So you'd usually assist in the loading of the item one way or another at whatever time it was that it leaves?---I wouldn't say usually but if we were there, if we weren't busy with a customer and we were standing around and had nothing essentially to do we would definitely assist if required. Often the courier would come in he'd have his own trolley and he'd grab it and be out the door before you could even hand in the paperwork to take with him.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1026

Now, did you usually then move another item back into the space that was left by the sale of that particular item?---We would often shuffle the stock around but we wouldn't generally as a rule bring something down from the other store room, or sorry, from the other showroom to replace that spot because we tried to distinguish the furniture between the good stuff and the not so good stuff, so most of factory 2 was full of lesser quality goods so we wouldn't be bringing those lesser quality goods down into the showroom because we wanted to keep that as the upper market second hand goods.

PN1027

So you'd move the furniture around, you'd merchandise to create - - - ?---Both Marius and I would work on - - -

PN1028

- - - an appropriate environment for sale and display of all of the goods?---Yes, we would do that, but not again at the degree that is suggested that we do it. It's much, much lower.

PN1029

But you might need to move a range of stock items to, I suppose - and that mightn't have necessarily have been a huge move but you might need to move a range of items just to fill the gap of where something had been, depending on the item?---We might slide a sofa over or often it would be congested and removal of that sofa would actually allow the furniture to sit better and be - - -

PN1030

So you'd slide a few items into an appropriate place?---Yes, if we sold something we'd, you know, put something in its place, there's no question.

PN1031

Sure. Do you see where my clients are coming from when they said in their statement that the sale of one item could lead to quite a number of stock movements and other stores related efforts, so we are talking about, you know, the moving of stock perhaps for a courier, to assist a courier, or the movement of stock to somebody's car and then the various movements to fill in the gap on the floor, one action of sales can move to quite a few movements in relation to the stores role, couldn't they?---In some circumstances, yes, and in a lot, not really. Often the truck drivers would put it where we wanted it. Often the courier or Marius would move. Yes, there wasn't a lot of sales going on so there wasn't a lot of movement but when it was required, yes, we did do it.

PN1032

But if you look at break it down into tasks required per sale, the sale and administration are certainly there but there are also these other stores related elements to each sale that need to be considered as well, don't they?---True. That's part of a salesman's job is to make sure especially when you only have two people in the department and you don't have all of those stores people.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1033

And there are only two people that can do all of that work?---And a slight amount of stores work was negotiated with Mr Marius and myself when I hired on. So it was known that I would be doing some store work and I did do some store work.

PN1034

Well, the ad that you answered included stores work, didn't it?---Yes, it was on the title, yes, but the discussions between Wyttenburg and myself was essentially that I could be working a lot harder for a couple of bucks more, so it was quite clear at the beginning that this was not going to be a labour intensive position which required nothing but moving furniture around. This was a sales position. Any movement that occurred was as a direct result of my sales ability or a customer's desire for product. Often the customer would carry it out the door themselves and there was no work involved in it. Most items came in and they didn't get cleaned. They didn't require cleaning or fixing or anything, so yes, there was stores work involved but the majority of the time was spent either doing management or administrative things or showing customers where the products were, comparing it to this item to that item. You could spend an hour easily walking around with a customer looking for one coffee table to show you - - -

PN1035

And then not make a sale?---And then not make a sale.

PN1036

I accept that. But because your stock had actually travelled and wasn't new stock, it was second hand stock, you'd have at least had to have dusted down or cleaned all of the stock, wouldn't you, for it to move onto the floor?---Sometimes, but often the items would come in perfectly fine. They wouldn't require anything. If something came in and sitting for a garage for a while and it had a layer of dust on it, of course we'd give that a wipe, but it would take, you know, 20 seconds essentially and often that wasn't even a requirement. The thing that we did clean generally were fridges. If we'd get a fridge in I'd spend, 10/15 minutes giving it a clean up and that was it and I could spend three days trying to sell the fridge.

PN1037

Can I ask that the statement of Mr Drake be shown to Mr Martinsen, please?

PN1038

Would you go to addendum 3, please, Mr Martinsen?---Yes.

PN1039

That advertisement states that store work is a requirement -

PN1040

So good health and ability to lift loads is essential.

PN1041

I take it you were well aware therefore of that requirement of the role when you took on the role?---Mr Wyttenburg explained that, you know, we have to, you know, carry sofas around or, you know, load a vehicle if necessary so he asked me if I was in good shape and I said, "Reasonably, yes", and yes, it was part of the sales position.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1042

Now, point 16 of your statement you talk about 20 June 2006?---Sorry, where are you?

PN1043

Point 16?---16, yes.

PN1044

Do you recall Mr Drake and Mr Genrich coming over to home furnishings?---On Mr Wyttenburg's last day are you referring?

PN1045

Yes - sorry, I take that back. I withdraw that. 20 June Mr Drake came across and had a discussion with both yourself and Marius, didn't he?---I vaguely recall him coming in after Marius had already advised me that Fred had made that decision to terminate and he came in and had - - -

PN1046

He'd made the decision to terminate what?---The home furniture department.

PN1047

To close the home furniture department?---Mm.

PN1048

And Marius had already told you and you agree Fred Drake came across and then he had a discussion with you and Marius?---No, Mr Drake called Mr Wyttenburg to his office where they had a private discussion and he then advised
Mr Wyttenburg that he decided to close the home furniture department.
Mr Wyttenburg - - -

PN1049

But Mr Drake then came across to home furnishings, didn't he, and had a further discussion with yourself?---A substantial later.

PN1050

Yes, but on that day though?---Not on the very day, no.

PN1051

You're saying it's not on the day?---No. Mr Wyttenburg told me about his meeting with Fred and it would have been maybe nearly a week maybe I would think later that Mr Drake came down and actually had a discussion with me
and - - -

PN1052

Mr Martinsen, it's very clear in Mr Drake's statement that he believes that on the 20th, the day he decided to close home furnishing he came across the home furniture department and he had a discussion with yourself and with
Mr Wyttenburg. Why didn't you tell him that you didn't see him on that day when you had him in the box?---That wasn't the point. The point I was making, I believe, was that Mr Drake did not come in and tell Marius and myself that he was closing the home furniture down and make that announcement at that time, that he had actually had the meeting with Mr Wyttenburg previously and
Mr Wyttenburg had advised me. Then Mr Drake came along subsequently and discussed that we wouldn’t go backwards or something to that effect.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1053

When Mr Drake was in the box supporting his evidence, both in-chief and in response, it was very clear and he actually said it in response to cross-examination by yourself, that it's his view of events that he went to home furnishings on
20 June after he'd made the decision and had a discussion with yourself and with Marius. Whether he'd advised Marius earlier of his intention is not material. It was his evidence that that's what he did on 20 June. Why didn't you put to him that you didn't see him on that day and that that meeting didn't take place?
---Because it probably did take place. I mean I do recall Fred Drake coming in and having a discussion with us after the fact, yes. I mean my question to
Mr Drake was simply he didn't recall ever having a meeting with Marius in his office. That was the focus of my questioning to Mr Drake. If he couldn't remember having that meeting with Marius, I mean - - -

PN1054

But you've just said that the discussion you had with Mr Drake about the closure of home furnishings happened some time after 20 June and you've also said that - given the impression to this Commission or certainly to me in your answer that you didn't see Mr Drake on that day, you saw him at some other time?---No, I don't believe that's true.

PN1055

So you agree that on 20 June Fred Drake went to home furnishing and discussed the decision that he had made to close home furnishings with yourself and with Marius?---I recall him coming in at some point, yes.

PN1056

And you'll accept it was 20 June, it was that day?---I couldn't say.

PN1057

Now, when Mr Drake came and had that discussion with you that I'm telling you happened on 20 June he made it clear to both yourself and to Mr Wyttenburg that there would be other roles for you at Absoe that your employment would not be terminated. He said that to you, didn't he?---Yes, he said he'd have other jobs for us and we wouldn't go backwards. We assumed that other jobs would be in sales.

PN1058

I didn't as any questions so you don't need to answer one. But on that point, if the job Mr Genrich had offered to you had been a sales job, would you have taken it?
---Is that relevant given that we're here to discuss the job that was offered and not the jobs that could have been offered? I've tried to run that myself.

PN1059

You've just made a statement about the job not being in sales question mark in terms of - - - ?---Yes. My answer to your question would be yes, I would have accepted it.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1060

So your commentary about not knowing the stock particularly well or where it was located really wouldn’t have come into your decision, you'd have taken it because it was a sales job?---It certainly would have come into it and it would have been questionable but I would have taken the position of salesman, yes. That's what I'd been expecting and that's what I was waiting for and when I got offered a dock man's position I didn't feel it was suitable.

PN1061

Why do you call the position dock man's position?---Because we've always called them dock boys because there's a long loading dock and that's where they live. It's on the dock essentially so we call them dock boys.

PN1062

But it's been made very clear that it certainly was not a dock role that you were offered?---It was a storeman's role which included unloading truck and - - -

PN1063

It was a merchandising and storeman's role?---Taking stuff to the dock, loading trucks, unloading, assisting with customer orders and getting them to the loading bay. So yes, I would be - - -

PN1064

Working with sales staff?---I would be spending most of my time on the dock in that position that was offered and that is without doubt.

PN1065

Well, it sounded more like to me like you've been spending most of your time on the floor, on the sales floor and between the storage areas and the sales floor?
---And unloading trucks and taking gear to the dock - - -

PN1066

Which would have been part of your role and function not most of your time?---I would be a storeman and in my mind that was a dock boy and to call me a merchandising storeman made me a glorified dock boy, but in reality the position would be well and truly spent in the warehouses, on the dock unloading vehicles and - - -

PN1067

How can you perform a merchandising role on the dock?---Because it wasn't a merchandising role. It was a storeman's position which did some merchandising. If you look at Mr Genrich's statement he clearly says that I'll be unloading trucks, I'll be taking stuff to the dock, I'll be doing all of those cleaning - - -

PN1068

He always says that he saw the role as the merchandiser's role and he hadn't had one before?---No, but someone has always done that merchandising role so for him to say he's never had one - - -

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1069

A range of people. His evidence was a range of people had done that merchandising role but he packaged it in a particular form, a different form. You would agree his evidence was that he created this role at the time that he offered it to you there hadn't been somebody filling that role as it was designed and offered to you beforehand, that was his evidence, wasn't it?---Yes, but somebody always did that role. Whether he wanted to classify it as assigning it to one individual storeman - - -

PN1070

Not that role but that work was always done?---That's right.

PN1071

Yes, I don't disagree with you. Can I take you to the day Marius left which is
11 July, do you recall Paul Genrich and Fred Drake coming across to the home furniture somewhere between three and four in the afternoon?---Yes.

PN1072

And you would agree, wouldn’t you, that after a short discussion all four gentlemen talking together, Mr Drake and Mr Wyttenburg continued their discussion privately and Paul took you aside and told you about the role that he was going to offer you in office equipment?---I recall them coming down and saying goodbye to Marius. Fred bought him a basket, a present, whatever and they said goodbye, but I do not recall Mr Genrich taking me up to office equipment and - - -

PN1073

No, I didn't say taking him up to office equipment - sorry, taking you up to office equipment. I said taking you aside and I meant talking to you in home furniture. Sorry if I was unclear?---Not about the role, no. He may have taken me aside and said, well, we'll keep selling or whatever, words to that effect, but the discussion about the alternative position was not raised at that time.

PN1074

I put it to you that it was raised at that time?---I put it to you that it wasn't.

PN1075

I think it's very likely that you had the discussion that you had that Mr Genrich can recall it that you had raised but at office equipment, but it is Mr Genrich's evidence that he raised the issue that afternoon when he basically took charge of you as manager?---He didn't basically take charge. Mr Drake came down about a week after Marius Wyttenburg had left and told me to go up and see Mr Genrich and Mr Drake sat at my desk as I walked up to office equipment to see
Mr Genrich, so I don't think their recollections are correct there at all.

PN1076

I don't disagree with you that what you've just said happened, but can I suggest to you that there had actually been a management hand over on the day that Marius left?---Fred specifically came in about a week later and said, "We have to do something. Our all our staff work under a manager", and at that point he assigned Paul to me and it was about a week after that that Mr Drake came down and saw me and told me to go up and see Mr Genrich because he had a job for me.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1077

So are you saying that's two weeks later?---Approximately. It was a period of time between each, yes.

PN1078

Let me just get this timeline straight, if Mr Wyttenburg left on 11 July and I think that's common, everyone agrees with that?---Mm.

PN1079

And then about a week later Mr Drake said to you that you'd have to do something about the management issue and then about a week after that he came over and relieved you when he sent you up to see Mr Genrich, that's two weeks later so you're at about 25 July, does that sound right?---That's about right, somewhere around there, yes. It was a period of time. It didn't happen on the day Marius left, no.

PN1080

And then you got the job offered to you on 1 August by Mr Genrich?---The written offer, yes.

PN1081

But he says that it took him a couple of weeks to put that together between the discussion he had with you and the actual making the offer in black and white on paper to you?---It took him a little while, yes, about 10 days, something like that before I got a written description.

PN1082

Yes, see the problem is the timeline doesn't add up because if it was 10 days from about the 25th we're nudging close to the end of the first week of August, aren't we?---No, no. If Marius left on the 11th and about a week later and four or five days later Fred came into me, that would have put it about the 15th or 16 July and a week later would have been about what, the 22nd, somewhere around there of July, then Mr Genrich put together his thing and gave it to me on the 1st. I don't really see any problem with that timing.

PN1083

So you didn't see any significant conflict with the evidence that Mr Genrich gave, except the fact that you didn't think he talked to you on the day that he came across along with Mr Drake to execute the hand over when Mr Wyttenburg left?
---He certainly did not offer me the job on the day they said goodbye to
Mr Wyttenburg. I went - - -

PN1084

And he didn't tell you about the job at all? He didn't tell you there'd be another job for you?---They all said there'll be another job for us, it was a matter of what it would be. The actual job didn't happen until, as I said, Mr Drake sent me up to see Mr Genrich.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1085

Now, can I take you to Mr Genrich's statement. I think I might have one, just bear with me?---I have one if that will assist.

PN1086

Mr Genrich's, that's fine. That will be great, thank you?---The response?

PN1087

No, his statement. Actually could I take you to 23, here Mr Genrich talks about the attached merchandising role that he'd offered you but he'd actually described it to you as, in broad terms, as a merchandising/storeman role, didn't he, when he discussed the job with you?---When he discussed the job with me it was that he wanted somebody to organise the store work in relation to the filling of the floor and the displays on the shop floor.

PN1088

And the displays and the presentation?---Yes.

PN1089

Yes. And when he gave you that job description it was clear that there was a stores role there as well as merchandising, wasn't it?---The whole job was a stores role. The merchandising is an aspect of the stores role, so it's a storeman role. That's all it was in its entirety.

PN1090

But he did explain to you that this was a role that he wanted to create to focus on merchandising, or didn't he?---I would say that's a fair statement.

PN1091

He didn't say to you that the focus of the job was assembling prefabricated items or anything like that, did he?---Basically he said I'd be required to do anything that was asked of me.

PN1092

That is an element of the role but that wasn't what he said your main function would be, did he? He said it was a merchandising/stores role?---I'd be required to unload trucks, assist on the dock and all of those things. It wasn't just that. There's not that much work. I couldn't spend eight hours a day getting the floor into shape. I would be spending the balance of time unloading trucks, going on deliveries, picking up items, everything of that nature.

PN1093

You've raised concerns about the fact that when you've got the role description there wasn't a rate of pay that was provided in the role description and there were some issues in relation to conditions of employment that concerned you?---Mm.

PN1094

Did you ask Mr Genrich about those?---Not once he handed me the job description that was silent on all of those issues. I asked him about them and he talked about the hourly rate would stay the same provided the performance was there. He didn't offer me any other information about any RDOs or any of that nature and given that he - - -

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1095

You didn't ask whether you'd have RDOs?---Given the nature of the job that was on offer and no, I didn't think it was worth pursuing. First of all I didn't think I was going to get an hour for lunch. I didn't think I was going to get the RDO. I thought I'd be working the Saturdays for salary and no, I asked him to put it in writing and he didn't and given my experience I didn't think it was going to lead anywhere.

PN1096

Payment by an hourly rate isn't salary, is it, Mr Martinsen?---No, but you'll find that all of their employees such as Mariska Vlug is paid $17 an hour but her timesheet, payslip shows $17 an hour for 40 hours straight time, no overtime. She was hired at $17 an hour and she's indicative of most of the other employees who work the Saturday without any additional pay. They don't get overtime after 38 and they certainly don't get any money for working a Saturday in addition to the $17 per hour. Her payslips showed 40 hours when she in fact worked 43.5 hours in that week and there's no reflection of that. This is what I was anticipating being offered.

PN1097

Let's talk about your rate of pay whilst you worked in home furnishing and we'll go - so that we can focus on the issue of hourly rates. Now, you were paid for a 38 hour week plus two hours of overtime, is that correct?---That is not correct.

PN1098

What were you paid?---I was paid $17 an hour for the hours I worked. It was 38 I think.

PN1099

Okay. So some weeks you worked more than that?---No.

PN1100

And some weeks you worked less than that?---No.

PN1101

Well, your evidence is that there were some weeks when you worked six days?
---In one week I would work the Saturday and I would take an RDO.

PN1102

No, no, there were some weeks where you worked six days?---Yes, when
Mr Marius Wyttenburg left - - -

PN1103

All right. Well, we'll come to that in a second?---No, but when - - -

PN1104

Just a moment. Before Mr Wyttenburg left there were some weeks where you would work six days, is that not correct? I'll go to what you did the next week in a moment?---No, I would work Monday to Friday one week and the following week I would work Monday to Friday less one day and then I would work the Saturday.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1105

Okay. So you would work Monday to Saturday and one of those six days would be off?---Right, so I'd work five days.

PN1106

Okay. So in two weeks you worked a total of 10 days split up into two weeks of five but your day off changed in the second of that - in that two week cycle. It was like a cyclical thing, wasn't it?---Yes. Every second Saturday I would work and every second week I would take a day off and - - -

PN1107

You would take a day off and you were paid the same amount every week, weren't you?---That's correct.

PN1108

So you didn't work Saturdays for free, did you?---I got a day off and with pay in lieu.

PN1109

The reason I raise that is that you questioned people and made allegations that people were working Saturdays for free, but you certainly didn't work Saturdays for free, did you?---I was the exception. I was the only person there that didn't to my knowledge. Everyone else works six days and gets no additional pay for working that additional Saturday.

PN1110

And do you know what the mechanisms to calculate their payment is?---Well, in Ms Vlug's case it was $17 an hour and they paid her 40 hours at straight time and when she worked a Saturday she worked an extra three and a half hours and her payslip still showed 40 hours, irrespective of what she worked. She did not get overtime and she did not get paid anything in addition to her $17 an hour for working that Saturday and she was indicative of all the other permanent staff in that.

PN1111

All of the other permanent staff?---To my knowledge, yes.

PN1112

To your knowledge?---Yes.

PN1113

So in fact she may not have been?---May not have been what?

PN1114

Indicative of the other permanent staff at Absoe?---No, from our understanding from speaking with Mr Wyttenburg and myself we negotiated when I asked for a raise in pay for example, he highlighted that the other people worked Saturdays for free and that I didn't and I got the RDO, so we tried to negotiate my pay down a little bit because I got this benefit of not having to work the Saturday for free. So it was a given that everyone in comparison to the position I was doing was working the Saturday but not getting an RDO and not getting any additional pay. So that was just what it was.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1115

I put it to you that nobody worked any time for free. When Mr Wyttenburg left you were paid overtime for all hours after 38 hours, weren't you?---Once
Mr Wyttenburg left I worked six days a week with no lunch break.

PN1116

You didn't take any downtime?---I took about a 20 minute break late in the afternoon. You'll see my payslips. I was paid for one hour overtime each day because I worked through my lunch hour.

PN1117

Each day, yes. But you took a meal break, didn't you?---I took my two smoke breaks together in the afternoon.

PN1118

But you took a break to have a meal at some stage during the day, didn't you?---I took a break just to get out basically. I don't know if I took 20 minutes, I'd go and have lunch but I did take a few minutes break, yes, 20 minutes. 20 minutes was usually all I could get.

PN1119

And you were paid overtime over and above your ordinary hours, weren't you?---I was paid - - -

PN1120

For that transition period?---Yes, I worked six days a week and I got paid an hour overtime for the lunch hour that I did not get.

PN1121

And what about for the other overtime you worked, you got paid for that too, didn't you, at overtime rates?---On the Saturday, yes, I did because I didn't have take my day off in lieu.

PN1122

That's right, you didn't have the day off in lieu. You'd actually made your mind up not to take the role that was offered in office equipment before you saw the role description, didn't you?---I had an idea that it wasn't going to be suitable for me, yes, after I went up and saw Mr Genrich and he showed me what the job was and described it to me. I'd pretty much felt that I was going backwards and I didn't want to be a glorified dock boy, yes. I hadn't made a definitive determination at that point but it was tending to go that way. I was waiting to see what Mr Genrich put down on paper in respect of my terms and conditions which I'd asked him about. If I might add, even after Mr Genrich did hand me the job description I took two weeks to consider it and I gave it extensive amount of consideration whether I would take the job, whether I'd be successful in the job, whether I would like the job and whether the job was suitable. I took two weeks of which I deliberated on that point and then after that period of time I felt it was necessary to inform Mr Genrich of my decision to not take it, which I did.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1123

On 17 July, so about a month earlier, in an email to a friend, Gail Allen, you were talking about the role and I quote:

PN1124

I've been offered another job in office equipment but I'm not sure if I'll accept it. It's nothing more than a glorified dock worker and less pay and less time off, i.e. 30 minutes for lunch and not my usual hour.

PN1125

You've indicated to this court that you didn't know whether you were going to get an hour for lunch and you didn't think you would. Quite clearly on 17 July you knew you were only going to get half an hour for lunch, didn't you?---It was still an assumption.

PN1126

It was still an assumption at that stage?---Yes.

PN1127

And when you were handed the role description you didn't think it was important for you to clarify that assumption or to ask any further questions given that information which seems to be so important to you wasn't provided in the role description?---I tried to - when I was handed the role description by Mr Genrich I tried to ask him about the terms and conditions that I wanted and the only thing that he offered was the $17 an hour. I didn't think that I would pursue it any further if that was all he was offering.

PN1128

So you didn't ask him am I going to get an hour for lunch?---No.

PN1129

But that was very important to you, wasn't it?---Yes.

PN1130

When you're negotiating with an employer don't you think it's important to ask questions?---I don't know if I was negotiating. They offered me a position. I took it on its face. I asked them the terms, it wasn't provided, I felt that the rapport between me and that department was poor at best and if I start asking about my hour for lunch I pretty knew what the answer would be so, no, I didn't pursue it any further. I had asked him, he didn't provide it, I let it go.

PN1131

In that same email on 17 July you say:

PN1132

It might be better if I took a lay off instead of waiting to be fired or quit under duress.

PN1133

So obviously you were thinking leaving was a much better option?---Given what I was offered, given the circumstances of the position, given the nature of the relationship over three years with their staff, yes.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1134

Why didn't you cross-examine Mr Genrich on the issues between yourself and his 2IC and somebody else that you've made a significant issue of in your own statement?---I think I did ask him about the chair incident and I believe he didn't recall that issue happening.

PN1135

But that's one incident and your evidence appears to be that you had a very difficult relationship over the entire period of your employment with Absoe. Why didn't you raise that with Mr Genrich, either at the time or in cross-examination?
---I'm sure there's lots of things I probably should have raised. If I had an advocate I'm sure these points would have been raised.

PN1136

But it's a significant part of your evidence, isn't it?---And I did touch upon it, yes.

PN1137

You asked about one incident?---A lot of this material, Ms Prior, I was going to be addressing through my witnesses to substantiate that point.

PN1138

In which case why didn't you put it to our witnesses so they had the opportunity to comment as well as your witnesses? That way the evidence at least the Commission understands what the view of both sides are on all of the issues?
---Well, Mr Genrich has addressed the issue of Brian and Kelvin in his response, so - - -

PN1139

And you agree with what Mr Genrich said obviously?---It's like pulling teeth there so, you know, I keep asking the question and I keep getting I don't remember, I don't recall, I don't think this, so I'm not going to waste a lot of time asking questions that they don't recall.

PN1140

Maybe he held a view on that that he could have provided to you. You don't know, do you?---But I asked him about the one major issue that I did have with Kelvin, his 2IC, and he didn't recall it.

PN1141

That was a major issue in your mind. There may have been other issues in his own mind, we don't know. We'll get back to this at any rate. At point 29 of your statement you talk about your accrued entitlement to six weeks worth of severance pay?---At which number, sorry?

PN1142

29. What's an accrued entitlement, Mr Martinsen?---I consider an accrued entitlement to be something such as long service leave that is acquired over a length of period of time.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1143

Sick leave, annual leave, they also accrue, don't they?---Mm.

PN1144

How do you accrue an entitlement to severance pay?---By length of service.

PN1145

But that's not an issue of accrual, is it? That actually talks about what the formula as opposed to being a mechanism that changes over a specific length of time?
---I'm not following your question, sorry.

PN1146

Length of service just determines what an amount would be, doesn't it?---Mm.

PN1147

It's not part of an accrual process of something being added to gradually?---I would disagree with that.

PN1148

With long service leave, sick leave and annual leave you are always entitled to those if they are part of your - well, you were always entitled to them if you are a regular and systematic employee in the case of long service leave, or if you are a permanent employee in the case of annual leave and sick leave. You'd agree with me, wouldn't you? So the longer you're there the more the entitlement is?---Not with sick leave. I mean you get X days as a permanent employee and they remain constant irrespective of what you work in years of service, to my knowledge.

PN1149

Not in terms of the years of service but in terms of time, no, they don't actually. They are added to over a period of time?---Do you get either four weeks vacation or you don't get vacation.

PN1150

Well, if you are either a permanent employee - or if you a permanent employee you get - - - ?---Four weeks isn't based on how many years of service you have. When I say - - -

PN1151

No, no, no?---I'm referring to - - -

PN1152

THE SENIOR DEPUTY PRESIDENT: Do we need to just work out where this is all going, do we need to?

PN1153

MS PRIOR: I put to you that the concept for accrual has nothing to do with severance pay. Severance pay is an issue that's determined, if one is entitled to severance pay it depends on the facts of the circumstances. It's not something, an entitlement that's built up over a period of time?---No, I disagree. It's an entitlement that is built up over a period that evolves into something when the job is made redundant.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1154

Are you telling this Commission that if an employer decides that he no longer wants a job performed there is an immediate entitlement to severance pay?---If he gets notice and advises that they're terminating the position due to redundancy and they don't want to have anyone working in that position any more, then I would say yes, an automatic entitlement would arise and in that I even raise this point that even if I had accepted the alternative position that we still would have needed to come here and seeking a variation from the requirement to pay me my accrued entitlement of severance based on that position.

PN1155

Have you ever heard of the term redeployment?---The army uses that I believe.

PN1156

Redeployment is also a term that falls under the termination, change and redundancy provisions?---I'm not familiar with that.

PN1157

You're not familiar with that. So are you suggesting to this Commission that if you'd have accepted the role, a new role with Absoe that they would have still been required to pay a severance payment?---Or seek a variation, yes. That is my understanding.

PN1158

At point 30 of your statement you say you went to Paul Genrich and told him you weren't accepting the job. Paul Genrich says you actually told Fred - that he heard it first from Fred Drake. What do you say to that?---I say it's entirely incorrect.

PN1159

Again I ask you why you didn't put that to him when he was in the witness box because it's in his statement?---I don't know that I didn't.

PN1160

Because Paul Genrich says that he was annoyed that you hadn't gone back to him, that he had to hear it from Fred?---I read that, yes, and I totally disagree with that entirely.

PN1161

Okay. You do agree however that Paul Genrich didn't discuss with you an entitlement to redundancy. He said he'd refer your questions on, you agree with that, don't you?---Yes.

PN1162

Paul Genrich said he had several discussions with you about that particular issue. You'd agree with that as well, wouldn’t you?---No, I wouldn't say they were discussions. I would ask him what's happening with my redundancy pay and he told me that at one point that they were looking into it to see if they could avoid paying it because they'd offer me this other job and that's the breadth of any discussion we ever had other than - - -

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1163

But there were more discussions than that, weren't there?---They weren't discussions. I would ask him what's happening and he would say I don't know.

PN1164

Okay, okay. So effectively you agree, you raised it with Paul on a few occasions?---And Paul, he just kept telling me it's in admin's hands, yes.

PN1165

Just bear with me for a moment, please, Mr Martinsen. At point 13 of Mr Drake's response?---Of Mr Drake's response?

PN1166

Yes, statement?---13 was it, sorry?

PN1167

Yes. Sorry, point 11?---Point 11?

PN1168

Sorry, yes, point 11. Mr Drake says that you told him you wouldn't be accepting the position, that you were going back to being a rental tenancy advocate?---That also is not true. What I told Mr Drake was that I was going to - that I felt the job was going three steps backwards and that I would be going to do a property management course and as I - - -

PN1169

But Mr Drake by the way agrees that you said you felt it would be taking three steps backwards. There's no disagreement there. But you did say to him that you wouldn’t be accepting the position, you were going back to being a rental tenancy advocate and doing a property course?---When I saw Mr Drake the first comment I asked him was, "Have you had a chance to speak with Paul", and he said, "No". And I said, "Well", and I was surprised at that because I told Paul almost a week earlier that I wasn't accepting his position. So when Fred came along, as he does, I asked him if he had a chance to speak with Paul and he said no, so I then informed him that I wasn't - I told Paul - I informed Mr Drake that I had told Paul that I was not accepting this job, that it was going backwards and I wasn't interested in the position.

PN1170

Thank you?---The course I was going to do was a property management course, not a tenancy advocacy course and it was a five day course of which I did take.

PN1171

I put it to you that it was Fred Drake that you told first that you weren't going to take the job and not Paul?---No, that's incorrect. You see I understood protocol so I wouldn't have gone to Mr Drake first. I would go directly to Mr Genrich, which is what I did.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1172

Why would Mr Genrich have felt annoyed when he first heard it from Mr Drake then?---I have no idea.

PN1173

You've indicated in your statement and in your questioning, cross-examination of our witnesses, that your hours of work would change significantly. You've previously referred to the difference between half an hour for lunch and an hour for lunch, do you see that as a significant change in your hours?---I do.

PN1174

But your lunch time is your own time, isn't it? You're not paid for a lunch break?
---It's a significant change in my hours.

PN1175

How many hours a week would you have been working as ordinary hours?---All my hours were worked at ordinary hours.

PN1176

What were your usual hours going to be in office equipment, Mr Martinsen? They were going to be 8.30 to five, weren't they?---That's correct.

PN1177

Okay. And that was five days a week and some rostered Saturdays?---Mm.

PN1178

And the rostered Saturdays was really a separate thing, wasn't it? That was about the sales component?---No - - -

PN1179

We won't talk about that at this time. The job that you were offered was really an 8.30 to five job five days a week, wasn't it?---No, it was a job that was eight hours a day, not seven and a half and it was a job that afford a full day off when I wanted it and it was a job that required me to work the second Saturday or so in addition to all of that. So I felt that those were a substantial change to my hours.

PN1180

Well, even what you're saying, the difference is between 37 and a half and the 40 hour week and you would have been paid two hours overtime for the two hours over 38?---I would have lost the opportunity to go home for lunch every day and make my meal and relax and do things I needed to do. I used that time productively. I wouldn't get that time, so to me that was a substantial change in the arrangement.

PN1181

But that's not a substantial change in your hours, is it?---To me it is, yes.

PN1182

So you could take more breaks in the home furniture job?---Not just more breaks. I had an hour entitlement every day for lunch. That was a substantial reason I took the position to start with, was that the hours, the hour for lunch, the RDO,
et cetera.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1183

But in order to work the RDO you had to work a Saturday, didn't you, to get the RDO?---Yes.

PN1184

Under this job you'd have been paid overtime for the Saturdays that you worked?
---That's of no benefit to me at all.

PN1185

You don't consider the increased income a benefit?---No, because it's a loss of time and you don't know my financial structure and no, I didn't see that as a benefit at all, more of a hardship then. If I could have asked I would have asked not to work the Saturday and there was no sales component so.

PN1186

Are you suggesting you weren't told that you were going to be rostered on for sales on a Saturday?---No, Mr Genrich said that he was considering it. He says, "I'll consider that". I've got him on tape saying that he considered it. He was only considering it. It was not as he's trying to make out here that I was rostered on for sales on a Saturday because in my experience that wouldn't have happened. It wasn't put on in the job description and it wouldn't have happened. It would have been maybe, maybe not, but it was not a rostered Saturdays for sales and that is not true.

PN1187

I put it to you that Mr Genrich made it clear that that's what he wanted to do?
---And I disagree.

PN1188

Are you aware that there's a requirement under WorkChoices legislation to work reasonable overtime?---There is now under the AWAs, yes.

PN1189

No, not under AWAs, within the scope of WorkChoices legislation and the fair pay and conditions standards. You didn't work under an AWA so there is no application?---That's right. Yes, there's some debate I guess as to what's a reasonable amount of overtime and it also says that they can work a reasonable amount of overtime hours at straight time pay, without being paid overtime, so I'm not really sure I follow you.

PN1190

But you understand there is a requirement to work reasonable overtime, unless you have a valid reason for not doing so?---(No audible reply).

PN1191

You'd agree with me that two hours a week and every second or perhaps third Saturday working overtime isn't unreasonable overtime, is it?---It's not the amount of overtime. It's the loss of my time in my lunch hour on a daily routine. It's a loss of the full day off that I could organise to do business related activities that I would need to do. It was a great aspect of my job.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1192

And so for all of those reasons you decided that you were going to resign from Absoe, didn't you?---No, most of the reason was the type of job that was offered in conjunction with the loss of all of those benefits was why I said no, thank you.

PN1193

There's no difference between what Mr Wyttenburg did and that is, resign and go and work somewhere else, from what you decided to do, is there, Mr Martinsen?
---Yes, there's a substantial difference, is that Mr Wyttenburg is the way it's pronounced.

PN1194

Sorry, Wyttenburg?---Left during the notice period, the redundancy notice period. So in my opinion Mr Wyttenburg - Mr Wyttenburg is also entitled to a severance pay.

PN1195

So you accept that you were in fact given notice?---Yes. The day Mr Wyttenburg came in and told me that Mr Drake had terminated our positions. That was the effective date of notice of the termination of our positions.

PN1196

Thank you?---There was however no finality or end date to that notice, but it was effective.

PN1197

You'd indicated that you were happy to work until the end, didn't you?---Yes. I also indicated that I would be willing to continue to run a reduced home furniture department. It's up to Mr Drake, he wasn't interested, that's fine. I have no hard feelings over that at all, but it - - -

PN1198

Mr Drake's evidence is that you were losing $60,000 a year and he's got approximately $320,000 income from the same space so I think he's answered that one for you in his evidence. Don't you agree with me?---He made those remarks but I don't think it has anything to - any relevance.

PN1199

Does the term retrenchment mean anything to you?---I've heard the term.

PN1200

Do you have an understanding of what it means?---Not entirely, no.

PN1201

In the home furniture department, if there were no customers in the shop what did you do?---Whiled away the time in a lot of cases. Waited for customers.

PN1202

Waited?---Often there would be customers but no purchases, answer the phone if it rang, email my friend Gail in California.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1203

Did you do housekeeping duties as well, vacuuming and tidying and dusting and that type of thing?---Not a lot of it, no.

PN1204

So you'd agree with me, wouldn't you, that waiting time isn't sales?---It's part of the sales job, yes.

PN1205

It's part of the entire role, isn't it?---Mm.

PN1206

But it's not sales?---It's part of sales duty to be prepared, be ready, be available.

PN1207

It's also if there's nothing to do it's also part of the merchandising functions and the everything functions. If there's nothing to do, there's nothing to do?---But we had such small turnover that those stores jobs that you talk about weren't just screaming out to be done at every given moment. They were done, as Mr Drake will probably attest, that our store room looked great. We kept it in top looking condition and there wasn't a lot of movement. There wasn't a lot of cleaning required so.

PN1208

You've talked about somebody called Toby Henderson. It's Toby Henderson, isn't it?---I don't know his last name.

PN1209

Okay, in office equipment. The person that you were referring to that you put to Mr Genrich, you talked about a Toby, are you talking about somebody who was a casual employee or a permanent employee?---I believe he was hired as a permanent salesman.

PN1210

A permanent salesman. Was he what former parlances would have referred to as an adult employee or a junior person?---No, he was an adult.

PN1211

He was an adult, so he was over 21?---He was over 18 from what I could tell. I didn't ask him how old he was.

PN1212

Okay. So he could have been actually a junior employee, under 18?---I doubt it but - - -

PN1213

He could have been. You didn't know how old he was?---I don't know how old he was.

PN1214

Thank you. You talked about Andrew Wellingham starting as a salesman?---I wasn't sure what his name was, but that was the name that was offered.

**** JEFFERY DALE MARTINSEN XXN MS PRIOR
PN1215

Andrew Wellingham I think was the name that you - my notes from yesterday I think that was the name that was agreed yesterday. If I put to you he started as a salesman three days after Mr Wyttenburg provided notice you'd agree with that, wouldn't you?---It was after Fred had terminated our positions, yes.

PN1216

But after Mr Wyttenburg had provided notice. Are you aware of when that job that Mr Wellingham took was advertised?---No.

PN1217

If I told you that Mr Wellingham was actually interviewed for that position before the decision was taken to close home furnishing you'd accept that, wouldn't you?
---I couldn't refute it.

PN1218

Thank you. I have no further questions for Mr Martinsen.

PN1219

THE SENIOR DEPUTY PRESIDENT: Now, Mr Martinsen, you're in the unusual position of having to re-examine yourself. It's not a possibility of course but if there are any issues that arose where responses to Ms Prior cross-examination you now seek to very briefly clarify now is your option to do so?
---Not really. There's nothing really. My statement is truth so I - - -

PN1220

Okay. No, that's all right. You're dismissed, thanks, Mr Martinsen.

<THE WITNESS WITHDREW [12.58PM]

PN1221

THE SENIOR DEPUTY PRESIDENT: We have two other witnesses. Well look, we'll adjourn for the luncheon break at this moment.

<LUNCHEON ADJOURNMENT [12.58PM]
<RESUMED [2.07PM]

PN1222

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, do you want to call your first witness?

PN1223

MR MARTINSEN: Yes, thank you, Mr Marius Wyttenburg.

<MARIUS FRANCISCUS WYTTENBURG, AFFIRMED [2.08PM]
<EXAMINATION-IN-CHIEF BY MR MARTINSEN

PN1224

THE SENIOR DEPUTY PRESIDENT: Mr Wyttenburg, I have before me a document that purports to be signed by yourself on 5 November 2007 of some 22 paragraphs in length. It starts with the sentence:

PN1225

I am Marius Franciscus Wyttenburg of (address supplied) in the state of Queensland.

PN1226

And ends with the statement:

PN1227

I left the department in Jeff's good hands.

PN1228

Does this constitute your written statement and evidence in this matter?---That is correct.

PN1229

Do you need to amend or add anything to this written statement?---Not to my knowledge.

PN1230

Thank you. Mr Martinsen.

PN1231

MS PRIOR: Senior Deputy President, I am uncertain as to whether there has been any evidence in chief that's been given by our witnesses that Mr Martinsen might need to elicit from Mr Wyttenburg before I cross-examine.

PN1232

THE SENIOR DEPUTY PRESIDENT: It's a question for Mr Martinsen. Are there any matters that have arisen from the evidence from other witnesses in this case that you need to bring to Mr Wyttenburg's attention so that he can respond to it?

PN1233

MS PRIOR: As evidence in chief before I cross-examine.

PN1234

MR MARTINSEN: Yes, I was going to go through Mr Genrich's response and to Mr Wyttenburg's statement.

PN1235

MS PRIOR: You can do that.

PN1236

MR MARTINSEN: Mr Wyttenburg, Paul Genrich has given evidence, a response in relation to comments you made in your statement. At paragraph 13 of Mr Genrich's statement, he states:

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1237

I have read the statement of Marius Wyttenburg at paragraphs 1, 2 and 5. Marius discusses sales work. I do not agree that the store's duties make up 15 per cent of the role he has outlined.

PN1238

Can you comment on that?---It depends on which context that you're looking, the 15 per cent, how it's based on, what parameters you're using. It obviously has different parameters to mine.

PN1239

What parameters were you using?---To the 15 per cent, during my deposition you gave me certain points that you considered to be store work and how long were you employed during that hour's time doing those points of duty.

PN1240

So on a daily basis I would do approximately 15 per cent of my duties were store's work?---To what you define store work to be, yes.

PN1241

Was I employed by you as a salesman?---Correct.

PN1242

Would you say the main focus of my employment was sales?---It's hard to say, it varies, but, yes, I'd probably put it more on a 50/50 basis. However, you were first and foremost there for our customers, to serve customers and to assist them and, of course, do your duties as storeman as required in any normal furniture store would require.

PN1243

In your statement you state - would you describe briefly the differences between your job and my job?---As a departmental manager, it was my job to ensure the profitable operation of that particular department and also to supervise any staff, ie. yourself, in the operation of that department, to make it profitable. Your job basically was to follow my instructions in performing a job to get those particular goals and that would include basically serving customers as I have to do, loading, unloading trucks, stores work which also I did as well, but as your immediate supervisor, my instructions for you to basically sell and dispatch goods and do store work that would result in the profitable operation of that department.

PN1244

But sales always took precedence over any stores work?---Well, if there was a customer in the store, the customer always got precedence over a delivery or store work. We always made sure the customer was looked after first.

PN1245

Are you familiar with the office equipment department?---I am.

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1246

Are you familiar with the storemen that they have on?---I am.

PN1247

Would you say that the storeman's position in office equipment would be identical to my job as a salesman in home furniture?---I would not say that.

PN1248

Could you define the differences between the two positions in terms of quantity of work?---Well, your job was also to serve customers and merchandise our store and to help with deliveries and normal store work, whereas an office equipment store boy was primarily just basically loading, unloading trucks, working on the dock, moving furniture. Really, I don't believe they had too much customer contact except for deliveries.

PN1249

That's basically what they did, they just moved stock around the floor?---I would imagine, I wasn't a manager with office equipment, but from my experiences and from what I saw there, office equipment dispatch boys would be responsible for unloading and loading trucks, for moving furniture around the shop floor where required and general cleanliness and doing whatever needs to be done in the display of furniture as well.

PN1250

Statements have been made that when items come in, each time we have to clean it, move it, repair it perhaps. Did we repair very much furniture that was purchased?---Not later on. I had a policy in my department where I increased the quality of the product and we were offering. I was very selective when I was out on the road doing my quotations in customer's homes to source material and I would only pick what I would consider choice items, items that perhaps didn't require as much detail and care as older furniture would, so occasionally we would get, of course, some pieces which would require some work, but in the main the quality of the furniture that I sourced was of a fairly high standard, didn't need repair, although, yes, it did need cleaning occasionally and did need moving.

PN1251

Usually the stuff came in fairly clean, though, and generally just fridges and things that would require cleaning?---Most things that required cleaning were the white goods, washing machines, refrigerators and the like. Certainly things needed to be dusted and cleaned. I wouldn't say there was much to be repaired in the furniture that I purchased. There may have been some, but only fairly minor.

PN1252

When we ran the store, we kept the HF, that is the premier, the main showroom with our good furniture and we ran factory two as a secondary showroom with the lesser quality?---That is correct.

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1253

Would you consider factory two to be more of a display area or a showroom or as a storage/warehouse type area?---It was really a mixture of both. The floor of factory two, down the middle we tried to set up as best a display as we could. However, around the perimeter of that factory we had shelving set up for bulk storage and we also shared it with office equipment who also used it as bulk storage, so where we could, we would display furniture as best. However, its primary use was as storage and as an overflow of anything that couldn't fit down the bottom, I'd imagine.

PN1254

Each time we sold something from home furniture in the main showroom, did we necessarily bring something else down from factory two to replace it?
---Occasionally we would. If I knew there were goods coming in, doing the buying, I would know what was coming in on the trucks as they would appear, if I knew there was something coming in that would take that spot, I would leave it for that, if I knew the quality was good. However, if we were low on stock and there were a few holes appearing down the bottom, then certainly I would pick out some choice items from the top and bring them down.

PN1255

So you would bring them down or I would bring them down or we would both bring them down?---I think we both did. You probably did more than me.

PN1256

New furniture, we didn't do a lot of new furniture?---No, very little.

PN1257

So it wasn't a matter of setting up a display and then going up to the factory when we sold one and pulling another one out of stock, like a storeman would do?---No. There's only a very few items which we carried back-up stock of, identical items. Some flat pack items come to mind where we had a display of a coffee table, for instance, and we carried back-up stock up the top there in a flat box, but most of our items were unique, one offs.

PN1258

Do they require a lot of assembly or storeman type activities?---Some items required storeman activity. Beds needed to be assembled, but most items like lounge suites and dining suites would usually just go into a place that we had made available.

PN1259

When you would go to quoting in the afternoon, so you were gone for most of the afternoon on occasion, did you leave me in charge of the store?---Yes, I did.

PN1260

What duties would I have responsibility for?---Primarily to serve any customers that came in, to maintain the security of that particular area because being the only person there, you couldn't leave for long periods of time, so there was the security aspect as well, but basically just to do what you would normally do, serve customers. If anything needed doing, I presumed you would act on your own initiative and do those things.

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1261

When you took vacation, who was left in charge of the home furniture department?---You were.

PN1262

When I was employed by you, we discussed the terms and conditions of my employment. I got a morning and afternoon smoke break plus one hour for lunch?---That is correct.

PN1263

On every second Saturday I would work a half day, more than a half day and I would get an RDO off in lieu of that day?---That is correct. Every second week you had one RDO.

PN1264

Do you think the hour lunch, was that an important aspect for me? Did I cherish that hour?---I can't speak for you.

PN1265

On my first day at home furniture, you told me to go for a walk around the site to check everything out and I reported that Mr Brian Roper had told me there were some chairs that I mentioned to you and you said to go back up and check it out, at which time he verbally abused me. Do you recall me making that formal complaint to you?---I don't recall it was on your first day or not, but I do recall that you've had numerous altercations with Mr Roper.

PN1266

Did you ever talk to the manager of office equipment about those issues?---I believe I may have spoken with Paul on perhaps one or two occasions and, really, I cannot recall the content of those discussions, but I do believe I made mention that there may have been an issue with the behaviour perhaps of some of the dispatch staff.

PN1267

Would you say it was a fair comment that there was a general animosity toward not just home furniture, but myself in particular?---By whom?

PN1268

By Brian, Kelvin?---I never had a problem with Kelvin, but certainly with Brian, we certainly had a few problems in that regard.

PN1269

Do you think in comparison the stores work that I was doing at about 15 per cent as you put it on a time basis was the same as the stores work I would be doing had I accepted the merchandising storeman position in office equipment?---I don't know the exact details of the position you were offered.

PN1270

That's a good point. Can I show Mr Wyttenburg the job description?

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1271

THE SENIOR DEPUTY PRESIDENT: Yes, but are you going to get him to comment on a prospective position? I thought we were going to draw on what was within his direct knowledge which is the work that was being carried out. If we go down that path, there will be all sorts of prospective comments on things that aren't directly known.

PN1272

MR MARTINSEN: Did I make it a point if we needed to get some assistance to have you phone office equipment and request the additional labour, rather than myself?---That is correct.

PN1273

Why did I do that?---Because approaches that you've made previously to other persons resulted in perhaps a bit of a negative feedback towards you and you felt that you did not wish to have any face to face dealings with them and it also became a company policy that any staff swapping or requirements be held on a manager to manager basis, rather than staff to staff.

PN1274

What was my dress requirement when I was hired and you told me the dress requirement?---Smart casual.

PN1275

So I was dressed like a salesman?---Yes.

PN1276

On several occasions I made suggestions to you in re-organising the factory team for one example where I suggested we put in some racking and do some alterations. When those odd times came around, would I go home and change into more appropriate attire for doing that stores work?---That is correct.

PN1277

So if I ever had any amount of storage work on, I'd have to go home and basically change in order to do that?---If we knew the stores work was going to be long-term and was going to be fairly dirty, yes.

PN1278

How many times would you say I had gone home and changed in order to do that sort of work?---Over the period you were there, 10, 12. I don't exactly recall how many. I wasn't keeping count. I didn't think I had to.

PN1279

No, you didn't. Did I have much contact with Mr Genrich during my time as far as you're aware?---Not a lot of contact as far as I know.

PN1280

Did you have much contact with Mr Genrich?---Once a week we were present at our weekly managers' meeting and I would perhaps speak to him almost on a daily basis.

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1281

Did I have much contact with Paul?---As far as I know, not a lot.

PN1282

So in your opinion, would Mr Genrich really know what degree of employment related tasks I was doing on a daily basis?---I don't know what Mr Genrich would think or not think, I'm sorry.

PN1283

If he wasn't around, he wouldn't be there to see anything, would he?---I guess not.

PN1284

Can you describe to us, please, Mr Wyttenburg, how the notice of the redundancy came to be?---It's in my deposition there. Going by my memory now, I met with Fred on a date in June to which he advised me that the home furniture, he would be closing it up and gave me a rough time frame of a few weeks, I believe it was about six or seven at the time and not to be overly concerned for our employment because jobs would be found within the company for us.

PN1285

Where did that meeting take place?---I believe in the administration office.

PN1286

In Mr Genrich's office?---I believe so. I'm not 100 per cent sure.

PN1287

It wasn't in the home furniture department, though, because from my recollection you had left to go visit with Fred and - - -

PN1288

THE SENIOR DEPUTY PRESIDENT: I think you've got to ask the - you can't lead I suggest in frameworks. Can you just ask the question?

PN1289

MR MARTINSEN: Did you leave the home furniture department to go and see Fred?---Yes, I think Fred may have called me and asked me to come up and I believe that news was relayed to me in the administration office or his office. I cannot recall 100 per cent, but I believe that to be the case.

PN1290

Then you returned to home furniture and advised me immediately?---Yes.

PN1291

Did you take that notice as being the notice of an impending redundancy of our positions?---Well, I didn't look at it perhaps in those technical terms. I just knew that our department was closing down and I really didn't look at it in that particular manner. Certainly the positions we had there were no longer there. However, Fred said we will find employment for you elsewhere in the company, not to be concerned and I took that as it was really up to me, whether I wanted to pursue employment with Absoe or continue on elsewhere, but I didn't certainly look in those technical jargon at that time.

**** MARIUS FRANCISCUS WYTTENBURG XN MR MARTINSEN
PN1292

Prior to that notice, did you have any intention of leaving?---No.

PN1293

So Mr Drake's notice to you caused you to resign and work elsewhere?---That is correct.

PN1294

Had Mr Drake not made the job redundant, you would still be there?---That is correct.

PN1295

Was there any doubt in your mind at that time that Mr Drake was making a full and final decision in closing the store down?---There was no doubt in my mind he had made his decision and was going to stick by it.

PN1296

I have no more questions. Thanks.

<CROSS-EXAMINATION BY MS PRIOR [2.32PM]

PN1297

MS PRIOR: Thank you, Mr Wyttenburg. Could I ask that Mr Wyttenburg be shown Mr Drake's statement, please? Mr Wyttenburg, could I ask you to go to addendum 3 of Mr Drake's statement and it's I suppose a blow-up of an ad that says home furniture salesperson? I will show you what it looks like?---Okay.

PN1298

Do you recognise that advertisement?---Yes, I do.

PN1299

What do you recognise that advertisement as being, Mr Wyttenburg?---That's an advertisement I placed in the newspaper when we were looking for a new salesperson for our department and I placed that ad to find recruitment.

PN1300

Is that the ad that Mr Martinsen responded to?---It would have been.

PN1301

That ad says home furniture salesperson, but would you agree in the first sentence it describes the role as an experienced home furniture/storeman?---Home furniture/storeman, yes, it does say that.

PN1302

And further down, before the last sentence which indicates an email address which I assume is you, marius@absoe and a telephone number, the second last sentence is:

PN1303

Store work is a requirement so good health and ability to lift loads is essential.

PN1304

?---That is correct.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1305

So you're comfortable that that's the ad that was placed?---Yes. Well, it looks like the sort of ad that I would have written.

PN1306

Do you recall indicating to Mr Martinsen that stores work was a function of the role concerned?---Yes.

PN1307

You did that at interview?---Yes.

PN1308

There is another of the statements you've made in extension of your evidence in chief that I just wanted to take you to. You talked about I suppose your relationship with Paul Genrich as manager, the times you saw him and also the office equipment department, obviously Paul's manager. What was your knowledge of the sales area of office equipment? Do you have any knowledge of that?---Only as a spectator who passed through from time to time and sometimes conversed with their sales staff. I have never worked in that department.

PN1309

If I told you that there was about a 50/50 ratio on the floor of the store people to sales people, would that surprise you?---I would have always thought that perhaps there may be more dispatch staff in office equipment than sales people, but I wouldn't be surprised, but I always thought there may have been more dispatch.

PN1310

I am not talking about dispatch, I am talking about stores related people rather than dispatch particularly?---Stores related people?

PN1311

Yes?---To me and dispatch are the same thing.

PN1312

Okay, I hear what you say. Now, on the point of what Mr Genrich may or may not have known about what went on in home furniture, you would be aware that Mr Genrich was the previous manager of the home furniture department, would you?---No, I was not aware of that.

PN1313

You weren't aware?---No.

PN1314

The day that Mr Drake announced that he had made a decision to close home furniture, it's Fred Drake's evidence that he came to home furniture and I am not denying you might have had a prior discussion with him, but on the day he made the decision to close, he came down to home furniture and he had a discussion with yourself and Jeff Martinsen, both, in the home furniture department. Do you recall that?---Listen, my recollection is a little bit hazy. It may have occurred. I cannot say definitely one way or the other where the conversations took place, I'm sorry.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1315

But your initial recollection when you think about that is the first I heard of it and you would recall that, it was Fred and it was up in the main office?---I believe so, yes, because I think I had to respond to a message to go up to see him, I believe.

PN1316

Yes, no problem with that. Mr Drake in his evidence has said he came down to home furniture, he talked to both of you, let you both know of the decision and told both of you that there would be other roles found for you?---Correct, yes.

PN1317

So you're comfortable with that?---I'm comfortable with that. I'm sure there were discussions both in the office and in our home furniture department about this, so I have no problem with that.

PN1318

In Mr Drake's statement he talks about and this is only a minor issue in relation to this matter, but he indicates that at the time he decided to close home furniture, he had I think what we could describe as almost a side conversation with you about perhaps running home furniture in another building in West End?---Yes.

PN1319

Do you recall that?---I recall that, yes.

PN1320

It's Mr Drake's evidence that he put a proposition to you that home furniture could move elsewhere because there was some discussion about whether it was an appropriate location and Fred said he had a location in mind, but after some consideration, you decided not to take that option?---That is correct.

PN1321

You would agree with that, wouldn't you?---I would agree with that, yes.

PN1322

Mr Wyttenburg, I'd like to talk to you about stores work. There's been some evidence given by Mr Genrich about what he sees as being stores work and he has said he sees that as being a range of jobs such as receiving furniture, repair, cleaning and getting furniture to presentation stage, the moving of furniture, both the lifting and carrying, whether it's receipt or dispatch, as well as moving furniture into sales areas, merchandising is, of course, another aspect of that. Would you agree that that's stores work?---I would agree with most of that, although I believe merchandising is also a responsibility of the sales people to best sell the product they have and I don't think dispatch staff perhaps may be competent merchandisers.

PN1323

Can I then put to you that if there was a role created of somebody who had some stores functions, but had a significant merchandising responsibility and that that role, I will call it a merchandiser's role, was also to work with the sales people on the floor, would you see that as a significant stores role, albeit having that sales aspect to it as well?---Well, the merchandising would be a slight sales aspect, as I already have mentioned, but most of the other work involved I would imagine would be more stores work.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1324

In relation to the home furniture department, it seems to be your evidence that merchandising, moving furniture, repair, cleaning and presentation, receiving furniture, the sales and administration stuff, you know, the actual transaction of the sale plus the administrative requirements, they are all jobs that both yourself and Mr Martinsen did in home furniture?---Correct.

PN1325

And I put it to you that the financial responsibility, the reporting aspects of administration and the management of responsibilities, including staff and some purchasing or more significant purchasing responsibilities were yours?---Correct.

PN1326

Does that fairly describe the distinction between the two roles?---I would have no argument with that.

PN1327

When you first employed Mr Martinsen, did you enter into some arrangement with him whereby he did less of what I would call and identified earlier as those stores roles, the receiving, the repair, moving of furniture, those sorts of things, did he do less of that than you?---No, no. He would do more stores work than myself. Being the manager, I would have delegated a lot of that to him.

PN1328

You've indicated previously - actually, before I ask you that question, Mr Drake has given evidence that because of the way home furniture worked, it required two people because you need two people to do a lot of things and it required - a take on Mr Drake's evidence is there always needed to be somebody there?---Yes.

PN1329

But sometimes you had to go and purchase stock?---Yes.

PN1330

And you had other requirements and he actually said there probably needed to be a sales person component of all of the jobs, he said half a sales person, but the reality is there needed to be two people to make sure the place was covered all the time. He said that wasn't anybody's fault. That's just the way it was?---That's right.

PN1331

Would you agree with that?---I would agree with that.

PN1332

It also has been suggested in evidence that there was a fair bit of down time at times. Would you agree with that as well?---I would agree with that.

PN1333

Keeping that in mind, in your statement you've indicated that you see the stores duties as being approximately 15 per cent say on a total time basis?---Correct.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1334

That doesn't assume that the rest of the 85 per cent is sales work, does it?---No, it doesn't.

PN1335

Both Mr Drake and Mr Genrich as people regularly do, have not quite agreed on what they've seen as the proportion of stores work to a sale component of the work required, given furniture needs to be moved and then sold, et cetera. Mr Drake sees it as being about two-thirds/one-third. Mr Genrich said 75 per cent, given the amount - he's actually talked about the amount of lifting and carrying that goes on, to the actual proportion of time required for the sales and administration support. What do you say to that?---I would probably disagree slightly with both of them. I saw it more as a 50/50 issue, primarily because I had to go out most afternoons and do quotes. I had appointments with people to do quotations on purchases and I left Jeffrey at the store there and that could be, say, three or four days a week for a couple of hours at a time, so straight away there you have a component set to basically minding the store and sales.

PN1336

If I put to you that a job that is a supervisory role, that has the responsibilities of supervision of staff and ensuring appropriate performance, so performance management of staff as well, would you consider that to be a responsible position?---To be supervising other staff?

PN1337

Yes, any job that included supervision of staff and performance management of staff?---It's an important position, yes.

PN1338

It's an important position?

PN1339

THE SENIOR DEPUTY PRESIDENT: Can I just ask Mr Wyttenburg, just to take you back, Mr Wyttenburg, to the evidence of the proportionality issue, that's what we'll call it, that is the split between sales and other work. When you say there's a 50/50 proportionality, that's 50 per cent - your experience was that 50 per cent of the activities or the amount of time worked by Mr Martinsen was in sales, is that what you're saying?---I'm saying it was about a 50/50 basis, using those parameters, yes.

PN1340

Yes, but it's the parameters that I'm asking about really. When you say 50 per cent sales, is that 50 per cent customer related activity, is that what you mean by sales?---Yes - - -

PN1341

Or are you including merchandising in that sales, or what?---I'm perhaps including a bit of both. I think the discrepancy may be more - I say in my statement there it's 15 per cent. However, during my deposition I was asked for my opinion what you class as store - you know, okay, and Jeffrey said, well, how long were we unloading and loading trucks and how long were we moving furniture, but not cleaning, he didn't consider cleaning to be a storeman's part of the job. So using the questioning by Jeffrey during my deposition I gave the answer as such. However, in my personal opinion I think cleaning is certainly part of stores work myself and that will then build the percentage up to what I consider to be more a 50/50 equation.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1342

So cleaning, what comes into stores work then, cleaning, unloading?---In my opinion, loading, unloading trucks, moving furniture around the store, tidying up, cleaning the furniture, repairing any furniture if necessary, cleaning the premises themselves, you know, the toilets and things like this. So to me that is storeman related issues.

PN1343

Where does merchandising fit? Is that - - - ?---Well, that's moving furniture around the floor, really. You know, that's - the merchandising is really - although you need to be a salesman to be able to merchandise correctly in my opinion. However, you know, I can say to Jeff, "Well, listen we need to put this here and this here and this here to get the best result," and then he would move the furniture accordingly.

PN1344

Thank you.

PN1345

MS PRIOR: You've just said that you need to be a salesman to merchandise correctly?---Well, I believe so.

PN1346

If I suggested to you to have a sales focus, what would your response to that be?
---Pardon?

PN1347

If I suggested to you that you needed to have a sales focus to merchandise correctly, so you need to be focusing on the sales outcome and merchandising being a component of sales, I don't disagree with you there, what would your response be, would you agree with that?---Well, I would agree. Merchandising is a very important part of sales. Having the right place, the right product in the right place at the right time during the right time of year.

PN1348

Well presented?---Well presented, accessible. There are many things that can make a customer's decision to purchase a product just because it happens to be there and well presented at that time.

PN1349

Would you agree with me that a good merchandiser has probably got good sales skills as well, whether or not they're exercising those at the time?---No. I wouldn't say that.

PN1350

What about good sales focus?---Sales focus, yes, but there are different talents needed to be a good salesman, besides merchandising. There's a lot of other components.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1351

I accept that. Just bear with me a moment, Mr Wyttenburg. Now, it's the evidence of both Mr Drake and Mr Genrich that the afternoon that you left, somewhere between about 3 and 4 o'clock, and we've heard a bit about it in this matter so I wanted to put it to you Fred Drake and Paul Genrich came across to home furnishings and there were just the four of you, yourself and Jeff and Fred and Paul in the department and there was an initial discussion between the four of you. Fred Drake says you handed in your keys and your phone?---Yes.

PN1352

And his recollection was that he indicated that there were some further matters he needed to go through with you and he said that at that time Paul Genrich took Jeff aside and had a discussion with him about whatever it was that they had a discussion about. Would you agree with that?---I would agree with that.

PN1353

You would agree with that. Mr Drake has just suggested to me that new furniture was 20 per cent of your sales in home furnishings. Would you accept that?
---Well, it varied month to month, but over an average I wouldn't argue with that point.

PN1354

We've talked about, I suppose, some of the time gaps, times when there was, I suppose, there were no customers and no furniture to move and a clean home furnishing. What do people do during that down time?---Well, it depended. There were, for instance if Jeff was on an RDO or somebody was away and it was very quiet and no one could leave that bottom building, so you were restricted to what you could do and you just basically spent the time, if there was no one in the store, there was nothing else to do, you had, for security reasons, you had to stay there.

PN1355

Certainly?---So - - -

PN1356

There's no suggestion otherwise?---Yes. So, no, there would be not a lot to do.

PN1357

Not a lot to do?---No. So we - you know, it came in cycles. You know, some days you'd be flat out, you didn't have enough hours in the day, but there would be periods when, yes, you would be stuck down there and there'd be nobody about and there certainly would be a lot of down time involved.

PN1358

On an average, and I really am just asking for an average global figure, what do you think that sort of down time would be, what percentage?---If you averaged it out on a daily basis, I would say perhaps maybe 15, 20 per cent of your day over average.

**** MARIUS FRANCISCUS WYTTENBURG XXN MS PRIOR
PN1359

Yes, might have - - - ?---Might have been down time, you know. We would just engage in conversations or just, you know, yes.

PN1360

Shoot the breeze?---Yes, yes.

PN1361

Yes, sure. I have no further questions.

<RE-EXAMINATION BY MR MARTINSEN [2.55PM]

PN1362

MR MARTINSEN: Mr Wyttenburg, when you gave me wage increases during my time you would often compare the fact that the other departments had to work the Saturday and did not get an RDO, is that correct?---That's right, yes.

PN1363

To your understanding is it that that's generally how it worked in the other departments, that they worked 40 hours straight time and through in the Saturday?---I'm not entirely familiar with the arrangements that other managers have with other staff in the departments, but I am aware that they all worked on a rostered basis on a Saturday when required and I don't recall they had time off in lieu during the week. I don't recall that. That's a question for other department managers.

PN1364

Right, and Saturday work was included in the overall week?---Everybody I believe was on the roster to work at least one Saturday on a rotation basis.

PN1365

But they didn't get additional pay for working that Saturday?---I don't know about other departments for additional pay.

PN1366

You brought that up as a negotiating thing to keep the wages low?---Yes.

PN1367

In comparison the other departments had, you know, to work this and it added Saturday with no additional pay?---Yes.

PN1368

Is that right?---Well, I believe that to be correct, yes.

PN1369

And that would have been my general understanding of the operation of these other departments, would it not?---I'd imagine so, but I can't - - -

PN1370

THE SENIOR DEPUTY PRESIDENT: I really don't think that's an admissible question. You can't ask Mr Wyttenburg what was in your mind.

**** MARIUS FRANCISCUS WYTTENBURG RXN MR MARTINSEN
PN1371

MR MARTINSEN: Fair enough.

PN1372

The advertisement that they showed you there, is that the identical ad or is that one basically as the general - - - ?---Well, it's been a number of years, but I look at that and I can see a couple of sentences in there which I know that I would have been responsible for and I can draw the conclusion, yes, that is my ad.

PN1373

When I responded to your ad it actually only had an email address in it and I had to look up the phone number in the book?---Okay.

PN1374

Would you say that is possible?---It's quite possible because I think the ad may have been placed on a couple of occasions and it may have varied. I'm not sure. I really cannot recall, but that would have been, yes, a minor change, I guess, yes.

PN1375

I have no further questions.

PN1376

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Wyttenburg.

PN1377

MS PRIOR: Senior Deputy President, there's just one issue that I'd like to raise with you here to see how you wish to deal with this. In neither evidence-in-chief nor cross-examination was the issue of additional pay for Saturdays in other departments raised with Mr Wyttenburg. I would just like the opportunity to ask him if he was aware of what the pay arrangements were for employees in all of the other departments.

PN1378

THE SENIOR DEPUTY PRESIDENT: If I remember Mr Wyttenburg gave evidence that he was uncertain as to what the pay arrangements were in other departments.

PN1379

MS PRIOR: Thank you.

PN1380

THE SENIOR DEPUTY PRESIDENT: Mr Wyttenburg, was that your evidence?---I would agree because I believe a lot of them were done on a manager to staff basis for each department. I don't think each department knew what the other one - what - if they had a contract or not, or I really don't know what arrangements were made in other departments.

<FURTHER CROSS-EXAMINATION BY MS PRIOR [2.58PM]

PN1381

MS PRIOR: The only question I would want to have clarified was whether Mr Wyttenburg was aware of which employees were on a salary which factored those things in and which were on hourly rates?---I would not be aware of that.

**** MARIUS FRANCISCUS WYTTENBURG FXXN MS PRIOR
PN1382

Thank you very much.

PN1383

THE SENIOR DEPUTY PRESIDENT: The witness is excused.

<THE WITNESS WITHDREW [3.00PM]
<MARISKA KAREN VLUG, SWORN [3.01PM]
<EXAMINATION-IN-CHIEF BY MR MARTINSEN

PN1384

THE SENIOR DEPUTY PRESIDENT: Ms Vlug, do you have a coy of your statement with you?---No, I don't.

PN1385

MR MARTINSEN: I can give you my copy, I suppose.

PN1386

MS PRIOR: Just a second. I'm sure we have one, just hang on. That's an original that Ms Vlug can have.

PN1387

THE SENIOR DEPUTY PRESIDENT: Ms Vlug, your witness statement is signed by you and is dated 5 November 2007. It appears to have between 1 and 15 paragraphs. The first paragraph begins, "I began my employment with Absoe Pty Ltd on 12 May 2005 as a sales assistant in the shop fittings department." It concludes with the sentence in paragraph 15, "My application is being reviewed in the Queensland Industrial Relations Commission and in the Workplace Ombudsman's Office." Does that constitute the signed statement you provide in these proceedings?---Yes.

PN1388

Thank you. Mr Martinsen?

PN1389

MR MARTINSEN: Ms Vlug, you worked in the shop fittings department which is directly adjacent from the home furnishings department?---That's correct, yes.

PN1390

There was a couple of occasions where 2-I-C of the office equipment department was putting three chairs, three perfectly good chairs outside of my department?
---Yes.

PN1391

Do you recall me taking the tags off and pulling the chairs inside?---I do, yes.

PN1392

Were you aware of any confrontation or conflict that that had generated between me and - - - ?---Yes. There was conflict between you and Kelvin, yes. He was getting other people to bring the chairs down and lining them up outside and that was conflicting with other stock that you had in the store to sell.

PN1393

And that went on for some period of time?---Yes.

PN1394

Thank you.

PN1395

THE SENIOR DEPUTY PRESIDENT: Perhaps the witness could just turn the microphone down towards her.

**** MARISKA KAREN VLUG XN MR MARTINSEN
PN1396

MR MARTINSEN: Could you describe how you were paid, your hourly rates?
---I worked a 40 hour week, Monday to Friday, and then every second week I worked Saturday.

PN1397

When you were employed were you hired at a specific hourly rate?---$17 an hour.

PN1398

Were you paid overtime after 38 hours?---No.

PN1399

So - - - ?---Straight 40 hour week. Every week.

PN1400

What about on the weeks you worked 40 hours plus the Saturday?---Straight 40 hours.

PN1401

So your time sheet would show $17 an hour for 40 hours?---For 40 hours.

PN1402

Even though you worked 43 and a half that week?---Yes, correct.

PN1403

So there was never any fluctuation in your pay?---No.

PN1404

Was that standard in your department?---I believe so, yes.

PN1405

As far as you know, or may have been aware, would that be applicable in the office equipment department as well?---I believe so. I've never asked about it. I think I spoke to one - - -

PN1406

Was it your general understanding?---Understanding that that's the way it was across the board, yes.

PN1407

Are you still with Absoe?---No.

PN1408

Was your position terminated?---Apparently it was - - -

PN1409

MS PRIOR: Objection. I don't believe that's relevant.

PN1410

THE SENIOR DEPUTY PRESIDENT: Why is this relevant?

PN1411

MR MARTINSEN: Ms Vlug had worked there for two years and was deemed to be unsuitable for the position. I'm trying to draw similarity between my anxiety of taking this job and being made unsuitable for the position which would then remove any entitlement to any severance pay that I had.

**** MARISKA KAREN VLUG XN MR MARTINSEN
PN1412

MS PRIOR: There is no suggestion in this matter that Mr Martinsen was not suitable for the position that was offered to him. In fact, both Mr Drake and Mr Genrich said that they saw him as very suitable.

PN1413

THE SENIOR DEPUTY PRESIDENT: Regardless, you can raise the issue if you like. It's been answered, I think, but whether or not - and equally we could get everyone who's been long standing employees and demonstrate how people who are long standing employees, we could bring medium length employees, we could bring short term and those who stayed only for probationary periods and say - it's a contextual arrangement. The context is so person specific that it would be requiring a rather extravagant inference to be drawn that - - -

PN1414

MR MARTINSEN: It's only an inference - - -

PN1415

THE SENIOR DEPUTY PRESIDENT: That someone else's circumstances are transferred to yourself. So it's too long a bow to draw. But, look, can
you - you've asked the question. Ms Vlug is no longer an employee of the company. What else is there to - - -

PN1416

MR MARTINSEN: I have no more questions.

<CROSS-EXAMINATION BY MS PRIOR [3.07AM]

PN1417

MS PRIOR: Senior Deputy President, I'm going to ask for Ms Vlug to identify some documents, please. I do have a copy for yourself. Now, Ms Vlug, you may never have seen this before, Mr Drake just pointed that out to me?---Mm.

PN1418

But in fact, I'm aware of that. These are actually your wages records. There are two different entries at two different times, periods of time and you will see from the first page, which indicates 15/11/2007 8.14 am on the top right hand side, they were printed this morning. Does that say that on your first page, and I'm talking about here, Ms Vlug?---No, I've got the 16th.

PN1419

Would you like to go to the second page then, there might be a slight difference in - you see on that first page - that - is on the second page at that top, is there 15/11/2007 8.14 am on the corner?---Yes, on the last page, yes.

PN1420

It's on the last page, is it, it looks like there's been a difference for in the way these have been stapled together. May I take you to a page which does in fact indicate, it's says:

**** MARISKA KAREN VLUG XXN MS PRIOR
PN1421

Absoe employee, one in two Saturday roster. Salary calculator.

PN1422

And this was printed out on 16/03/2007 at 12.23 pm, okay, if everyone has that. Can you see that what this purports to do on the left hand side, under - indicates a position of shop description, Retail Industry Award 21 years and over, it has an hourly rate of $13.85 and in this column here, closest to the left hand, it shows three rates effectively. The 38 hour week, 40 hour week, Saturday roster, 43.5 hour week. Down the bottom it says, and so I'm talking about the last line under quite a thick line, it says:

PN1423

$17 40 hours -

PN1424

and this is an averaging situation -

PN1425

$680 for 52 -

PN1426

?---Sorry, you've lost me. What - what's it on the very bottom?

PN1427

Very bottom here. You've got, negotiated salary package, hourly rate $17, weekly hours and it says 40?---Mm.

PN1428

Weekly gross $680. Weeks year 52 and then it goes on?---Mm.

PN1429

I put it to you that, you were on a rotational arrangement where you were nominally paid $17 an hour for every hour worked and that was how your weekly gross of $680 was arrived at. Would you accept that?---Yes, I accept - accept that I was paid an hourly rate and that was the gross amount, yes.

PN1430

And you would also agree with me that, this has been looked at by the Office of Workplace Services and they hadn't proceeded further with any claim of irregularities?---I was still waiting to hear back from them.

PN1431

So, as far as you're aware, they haven't found any irregularities and come back to the company?---I haven't back from them.

PN1432

You haven't heard back, okay, that's fair enough. You didn't work in home furniture, did you?---No.

PN1433

Were you involved in either home furniture or office equipment on a daily basis?
---No.

**** MARISKA KAREN VLUG XXN MS PRIOR
PN1434

Which department did you work in?---Shop fittings.

PN1435

The shop fittings department?---Mm.

PN1436

We've just gone through an issue of your wage structure and how that happened
and - - -?---Yes.

PN1437

- - - how the negotiation occurred and just on that point, who was it that negotiated the terms of your employment?---I was employed by my uncle, Bill Lagos.

PN1438

And Bill Lagos was the then manager of the department - - -?---Of shop fittings, yes.

PN1439

And you worked in the shop fittings department?---That's right.

PN1440

And was it your understanding that managers did enter into negotiations with their staff when they were taking them on as new employees?---I got told that there'd be a review process or something down the track. All I was told was, I would be starting on $17 an hour, nothing else was entered into in regard to holidays, Saturday - I - I was told that I would be put on to a Saturday, but I - - -

PN1441

That you'd work Saturdays on a rostered basis, whatever that was?---Yes. And - and I was assuming that that would then be paid for.

PN1442

Yes?---Above the $17, but that was not - nothing was explained to me that that was in the whole package.

PN1443

So when you didn't get paid did you go back to Mr Lagos and discuss that with him?---I didn't go directly to Bill because a lot of the time he seemed to be elsewhere and hard to get hold of or tied up. I had asked a couple of my other work colleagues as to what had - how the process worked in regard to wages and holiday pay and that type of thing. They just said that that's what it is, you're on an hourly rate and you're on a roster for Saturdays. That was basically - - -

PN1444

Were you aware of which of the people you worked with in your own department were on hourly rates and which were on salaries?---As far as I know, everybody was on an hourly rate.

**** MARISKA KAREN VLUG XXN MS PRIOR
PN1445

And what about the other departments? Were you aware of which employees were on an hourly rate and who was on salaries?---I thought everybody was just on an hourly rate.

PN1446

Right across the - - -?---Across the board, yes.

PN1447

You've indicated in your statement, Ms Vlug, that your application has gone to the Queensland Industrial Relations Commission?---Yes.

PN1448

When did that happen?---That was in regard to the fact that the new laws have come in, so my employment was actually split in regard to who could deal with it.

PN1449

I see?---I can't remember the exact date, but I then - because part of my employment - - -

PN1450

And have you heard anything back in relation to the Queensland Industrial Relations matter?---No, I'm still waiting to speak to them.

PN1451

But there was a previous application, well an application by yourself here in the Australian Industrial Relations Commission that was dealt with by Commissioner Bacon back in March, wasn't it?---I believe so, yes.

PN1452

And that was withdrawn?---Yes.

PN1453

At point 9 of your statement, your last sentence is:

PN1454

Jeff never did thank -

PN1455

sorry -

PN1456

Fred never did thank Jeff.

PN1457

and you refer back to Mr Martinsen's work in the closing down of home furnishings. How do you know that?---I could - I saw people coming and going and on the last day I never saw Fred around at all.

PN1458

But you can't be sure of whether that happened - therefore it - at any particular time he might've thanked him on Tuesday before the last day, for example?
---Well, Jeff had mentioned to me that he hadn't seen - - -

**** MARISKA KAREN VLUG XXN MS PRIOR
PN1459

Jeff had told you, right?---Yes, Jeff had mentioned that he hadn't seen Fred and that Paul had come down on the last day to collect the keys and - - -

PN1460

And Paul thanked him, didn't he?---Yes.

PN1461

Point 5 of your statement, you discuss Paul Genrich and you know, you basically say that, you saw him around but he didn't seem to be in home furniture a lot. You'd agree though, wouldn't you, that Jeff Martinsen reported to Paul Genrich after Mr Wyttenburg left?---That was supposed to be the case, yes. I don't believe that they had all that much contact.

PN1462

But you weren't in home furniture, were you?---No.

PN1463

If I put to you that, it's been Mr Genrich's evidence that he had contact with
Mr Martinsen either - on a daily basis either by phone or by - - -?---That's possible.

PN1464

- - - visiting that - yes, thank you. I have no further questions for Ms Vlug.

<RE-EXAMINATION BY MR MARTINSEN [3.18PM]

PN1465

Ms Vlug, when you were employed by your uncle, were you told you were getting $13.85 an hour?---No.

PN1466

You were told you were paid $17 per hour?---$17, yes.

PN1467

Did you ever negotiate anything other than that?---No.

PN1468

Did you ever sign anything such as - - -?---No.

PN1469

- - - this form here?---No.

PN1470

So do you believe that your $17 per hour was to include working Saturday with no additional pay?---No.

PN1471

You believed your contract was to get $17 per hour for every hour worked?---For my hours worked, yes.

PN1472

And nobody ever said anything otherwise to you?---Nothing else was explained to me, no.

**** MARISKA KAREN VLUG RXN MR MARTINSEN
PN1473

No further questions, thank you.

PN1474

THE SENIOR DEPUTY PRESIDENT: Thank you. The witness is excused.

<THE WITNESS WITHDREW [3.19PM]

PN1475

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen, is that your case?

PN1476

MR MARTINSEN: Yes.

PN1477

THE SENIOR DEPUTY PRESIDENT: No more witnesses. In those circumstances we can move to closing submissions, with the applicant first. Then followed by Mr Martinsen and with a very short submission in reply by the applicant if they should choose to exercise that right.

PN1478

MS PRIOR: Senior Deputy President, this matter is about whether or not a role that was offered to Mr Jeff Martinsen, the role being a merchandiser/storeman role with some other duties that were by way of sales in the office equipment department, both merchandising and store and sales roles were in the office equipment department, was an adequate alternative role for the purposes of - to the extent that you would consider the variation of a NAPSA to remove the obligation on the employer to pay a severance payment that maybe payable under other circumstances.

PN1479

It is well known to this Commission, that the view of the company is that
Mr Martinsen resigned. However, the issue in a sense pre-dates that resignation because the job that was offered was offered well before the resignation and there has been plenty of evidence before the Commission as to why the employer holds the view that the role that was offered is an appropriate and alternative role.

PN1480

The significant element of the new role was that of merchandiser and we are aware that there are significant stores functions that are involved in merchandising. It's the view of Mr Marius Wyttenburg that, with merchandising it probably is a sales roles and he may well be right there.

PN1481

There's been evidence from Mr Genrich and Mr Drake that merchandising is seen as a stores role. It doesn't really matter how you see it, the role that was offered and the job description is before you and has been discussed in the evidence of
Mr Drake, Mr Genrich and Mr Martinsen, was clearly that of substantially a merchandiser with a range of other duties.

PN1482

It's the evidence of Mr Genrich that because of the skills that were available, with Mr Martinsen he was looking for a job for Mr Martinsen. He actually created this role and he formalised and regrouped some tasks that were already happening and had been done by a range of people within the department, and to that he added something else and that was on a rostered basis, Saturdays, because Mr Genrich's evidence is, he didn't want to lose the sales skills of Mr Martinsen.

PN1483

Mr Genrich quite clearly, in his evidence, saw Mr Martinsen as a very competent employee who had good sales skills, he considered good merchandising skills, could work well on his own, could manage time, all of those sorts of things come out of Mr Genrich's evidence. He also said that, he felt that he had the sorts of supervisory skills he was wanting to introduce into his department. His evidence this morning under cross-examination was, he'd never had a level 3 supervisor before and the role he created, that was offered to Mr Martinsen, was a level 3 supervisor role.

PN1484

Mr Martinsen didn't quite see the role in the way the company did. He saw it as a glorified dock boy's position and filling holes in the dungeon and he wasn't terribly impressed with the role. There may well not have been a communication process that in 20/20 hindsight could've been better. But there is no doubt that, the role that was offered and was conveyed as being a significant role was one where the hourly rate was maintained, where there was some overtime that was going to be factored in, and that was a matter of two hours a week of overtime because of the opening hours of Absoe and the fact that, there was going to be half an hour for lunch and not an hour for lunch and there was also going to be overtime on the Saturday.

PN1485

It's Mr Martinsen's evidence that when he - that when the job was first raised with him he asked for a job description which he got. It's Mr Genrich's evidence that the job description that he gave was for a substantive role and that is the role of merchandiser/store person. He did not include the sales duties on it and at one point this morning, he indicated to - in response to a question by my friend, that had he have seen the role as a merchandiser, stores and sales role, he could've incorporated that into the job description. But that wasn't quite the way he saw it. Because as his evidence suggests, he wanted Jeff to keep his hand in sales and keep up those skills because he had in mind that, when a suitable position arose that was a sales only role, that role would be offered to Mr Martinsen.

PN1486

And it is uncontested evidence that the role that was created and then rejected by Mr Martinsen and then offered to another employee was in fact - did become a sales role. That particular employee who filled the role originally created for
Mr Martinsen turned into a sales person within office equipment.

PN1487

In this matter you need to be concerned with a number of issues and there's been a fair degree of history in this jurisdiction about what appropriate alternative employment, adequate alternative employment, described in a number of ways in fact is. Fundamentally, the role needs to be of roughly a similar status. We heard from Mr Genrich that he would see the role of a merchandiser/store person as perhaps being in status a little less than a salesperson. But then of course there were the supervisory responsibilities, which whilst perhaps not terribly well spelt out within the role description, are clearly there.

PN1488

At point 7 there is quite a specific role for the performance management of staff, that was an obligation of the merchandiser/store person. So it was very clear that, within the original scope of the role there was an intention for Mr Martinsen to have staff and in fact, that was - that is the evidence before us today.

PN1489

So we would argue and our argument would be supported by Mr Wyttenburg that those responsibilities for staff, the responsibility for the direction of staff on a permanent basis and we heard that there would've been far more or a rolling responsibility for other staff depending on the project, would raise the status of the role to above that or an ordinary salesperson. Often you can't compare apples and oranges, it's just a matter of looking at value in some general way. So we'd argue that, the comparative value of the work clearly with a supervisory function there, there was an increased value in the role that was being offered.

PN1490

The hourly rate remained the same. There were no questions asked by
Mr Martinsen to get any better and further particulars in relation to how things would be paid. Mr Martinsen said he made a whole range of assumptions and decided that, for example, he was going to work Saturdays for free. We would submit that, in fact, that just doesn’t happen, people don't work Saturdays for free. Although, there has been a fair bit of evidence that indicates to the Commission is was a misunderstanding of how people were paid at Absoe.

PN1491

There was a two and a half hour difference per week in the ordinary rates between the 37 and a half hours and the 40 hours that were required to be worked in office equipment by Mr Martinsen, that's not a significant change in hours. The fact that there's a difference in - between a lunch break of half an hour and one hour is not an issue that you're required by any case law to take into any consideration. The fact that there was some overtime on a rostered basis, a rotational basis once every two or three weeks to be worked on a Saturday, the sales component, more sales work in addition to the merchandising, that was to be paid at overtime rates, that would take the income level to above that that was being worked by
Mr Martinsen.

PN1492

We accept that there was no rostered day off, but the contractual arrangements and certainly the two awards that formed the basis of the negotiation were different. And so, whilst there wasn't a rostered day off there, we say the difference between 37 and a half hours and 43 hours approximately, against a background of work choices legislation coming into effect during this time, where there is a requirement on people to work fair and reasonable overtime, if they don't have other commitments of a pressing or a domestic necessity or other reasonable reasons not to work that overtime, you shouldn't consider there to be any significant imposition on Mr Martinsen simply by the effect - the fact that there might've been five hours overtime on one week and two and a half hours on another week that will be required to be worked, or two and a half hours difference by way of time.

PN1493

And we say that fact that it was sales work and was intended to lead to him actually getting a sales job, which is what he actually wanted, would've been important. All of his entitlements would've been continued and of course, by his decision to terminate his employment, Mr Martinsen in fact lost the entitlements that he had accrued by way of the service that he had had to that point in time, which was in excess of two years.

PN1494

Mr Martinsen had the skills required to perform the role. That's something that you need to satisfy yourself with and the home furniture roll, being described as salesperson/storeman, the merchandising role was - well, merchandising itself is an essential skill for a salesperson, as it stock control, product knowledge and we say knowledge of Absoe procedures on invoicing, stock, customer details, delivery and dispatch, and work orders. Issues made in Mr Drake's statement were also clearly essentials for the role and we say that they were skills that
Mr Martinsen had.

PN1495

The role we also say required skills Mr Martinsen was already performing in home furnishings, all of them. Mr Martinsen, as we've said, didn't think the role was good enough for him and after receiving the job description from Paul Genrich that didn't change his mind. Mr Martinsen has indicated to the Commission that there were a range of gaps he saw, but sadly he didn't ask any further questions of Mr Genrich. Neither did Mr Martinsen raise any concerns he had with any other manager, had he have found Mr Genrich to have been unapproachable.

PN1496

This application seeks a variation in this matter simply for Mr Martinsen along, that there be no entitlement to severance payment. Absoe argues that, acceptable alternative employment was offered by the company and it was rejected by
Mr Martinsen. There was an obligation to be paid severance unless there is acceptable alternative employment offered. In Derrily Nominees it was stated that:

PN1497

What constitutes acceptable alterative employment is a matter to be determined on an objective basis. It was argued that is it not just alternative employment acceptable to the employee, nor to the employee as that would provide the employee with a reasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay. If that were the case, the exemption provision would be without practical effect.

PN1498

Is what was argued in Derrily Nominees. Acceptable, it was argued, must be a relevant standard including the work being of a like nature, the location being not reasonably distant, the pay arrangements complying with award conditions. We say all of those were met and that's certainly a matter of evidence here.

PN1499

The work was like in nature, the location was the same, the role was one with more authority, supervisory and performance assessment responsibilities, responsibility for the merchandising function, some required overtime and the opportunity to earn further overtime from the sales on Saturdays. We submit the Commission must find the work that was offered was adequate alternative employment and we urge the Commission to vary the NAPSA which is the Retail Stores Award 2004.

PN1500

You don't require to have that handed up, do you, the actual copy of the NAPSA.

PN1501

THE SENIOR DEPUTY PRESIDENT: No, I have my own copy.

PN1502

MS PRIOR: I'm sure you do.

PN1503

THE SENIOR DEPUTY PRESIDENT: What you're seeking to do is to set aside the obligation, that is - - -

PN1504

MS PRIOR: To set aside the obligation in this case, yes.

PN1505

THE SENIOR DEPUTY PRESIDENT: That is otherwise required by the Retail Industry - - -

PN1506

MS PRIOR: Correct.

PN1507

THE SENIOR DEPUTY PRESIDENT: - - - NAPSA.

PN1508

MS PRIOR: Correct.

PN1509

THE SENIOR DEPUTY PRESIDENT: It's just a technical issue, as to whether or not the award itself is varied. It's actually the obligation - - -

PN1510

MS PRIOR: It's the obligation. We - I agree with you - - -

PN1511

THE SENIOR DEPUTY PRESIDENT: The award has an obligation and will vary how the obligation falls on this particular employee.

PN1512

MS PRIOR: That is correct.

PN1513

THE SENIOR DEPUTY PRESIDENT: So it's not an award variation - - -

PN1514

MS PRIOR: This is not an variation we are seeking. In any other case, but for the particular circumstances in front you, and that relates solely to Mr Martinsen in relation to the offer of the role that was made to him in June 2006.

PN1515

THE SENIOR DEPUTY PRESIDENT: Mr Martinsen.

PN1516

MR MARTINSEN: Thank you, Senior Deputy President. I would like to say that, in my opinion, objectively acceptable employment was not offered to me. I worked the position, I knew what the new position was going to be. From all the experience I had gathered it was clearly not the same type of job. The degree of physical labour involved was completely - I suggest the Commission not vary the obligation to pay on that basis.

PN1517

The hours of work, as I stated, were different, my days off were different, the type of work I was doing was substantially different, albeit in somewhat of the same nature, the degree that I did any stores work it'd just be substantially different.

PN1518

My status within the company and between customers and myself would be substantially reduced from a person that dressed well and had business cards and made arrangements of that nature, I would be trading that for steel toed boots and a fluorescent T-shirt, in my opinion.

PN1519

At no time did the company give me any written indication or otherwise as to the terms and conditions of which I asked them to address and put into writing. Given the animosity that went on for almost three years while I was there and began at the very beginning of the employment, I took that into consideration when I did not accept that alternative position. The fact that I believed sincerely that I would be working the Saturdays without pay, or any additional pay, was a concern I took into account.

PN1520

I do not believe I would've had any security in that position and the position was entirely different from that which I held, albeit it did include stores work. In addition, much has been made of the Derrily Nominees test. If Mr Drake of Absoe believed that he obtained acceptable alternative employment for me, it was incumbent upon him under the Retail Industry Award to make an application to this Commission in a timely manner to seek a variation from the obligation to pay.

PN1521

Now, Mr Drake has waited 14 months, his unilateral decision to not pay me my entitlement as cost me a year of grief so far as concerns the Office of Workplace Service and their two decisions that were made. Mr Drake could've alleviated all of this by simply at the time that he offered me the job and when he became aware that I was not taking it, that he would've made that application here to resolve this matter. 14 months later, witnesses can't remember anything, they don't recall what they said, they think they might've, or they probably would have. It's very difficult for me to elicit evidence from people who rely on the fact that it was some 14 months ago.

PN1522

It's unfortunate that Mr Drake has waited 14 months to make this application, but the cases have determined the meanings of words like obtained, acceptable. They've imposed the objective test and I ask that the Commission gives some weight to the definition of the word "obligation" because unless that is given any sort of meaning, then Mr Drake's just decision not to do anything shows that there is no obligation. The only time there's an obligation upon him to pay me, is if I spend a year fighting with a workplace inspectors and government bodies so that they can issue Mr Drake with a breach notice, which then caused him to come and make this application.

PN1523

I feel this is just a entire abuse of process. Had I gone to the Federal Magistrates' Court, which I could've done under the Work Choices Legislation, I would've been stifled in my track by the applicant making this application for the variation. I'm sure any Judge would've adjourned pending the outcome of the application for the variation. So, I've got six years in which to file an application in the Court to resolve this matter, but that would mean in - I lose all right to make that because he could wait until I make my application to actually get this done, because if I hadn't have been as successful in having the Office of Workplace Services overturn their erroneous decisions, then we would not be here today. Because
Mr Drake would not have been forced to do anything about his obligations to pay me.

PN1524

So I would've then gone to the Court and made my application for payment of severance and notice, which I was intending to do, but Mr Drake would, I'm sure, have then made the application to the Commission which would then have stifled or removed my right to take it to the Court. It's just more of an abuse of process.

PN1525

So, unless the word "obligation" is given a meaning, the variation must be sought prior to the obligation manifesting, if I can put it that way, if they can wait until the only thing - until a breach notice is issued to him, then there truly is no obligation on his part, any prima facie entitlement if you will, because he just has to do nothing and there is no obligation. The only obligation is when he gets issued with a breach notice from a government body that will take him to task. He then exercises his obligation to make an application.

PN1526

I find this is an incredible breach of procedure and an abuse of process. All of this could've been alleviated prior to my job being finally terminated. It's a fairly quick process coming in for a variation, it doesn't take very long, not a lot of time is given to an employee who for 14 months had an entitlement. The only reason I won't have an entitlement is if now, 14 months later, we find that I should've accepted this alternative position. But I don't think that would be proper in the circumstances to grant Mr Drake a variation and a relief from paying an obligation which has been in effect for 14 months and only on the basis that he was forced into doing this.

PN1527

I was essentially powerless to do anything until I was able to get the OWS to issue him with the breach notice. Now, to me, that is not giving the word "obligation" any meaning. And I think we need to do that if we're going to say that "obtains" can mean "offer" and you know, and all the wider definitions we've given these words, I think we need to give a narrower definition to the term "obligation" because otherwise there is no obligation. And this should've been handled a lot better. Mr Drake is a man of great business acumen with many, many years of experience who has no idea what a redundancy is, it doesn't enter his vocabulary or words to that effect, I think he said. It has no place.

PN1528

He denies that this, even here seeking a variation from the requirement to pay, he still denies that he has that obligation. He still says that I resigned. Now, I don't know how I can defend myself against such an interpretation. I don't think that the company handled this process at all. Mr Genrich has admitted that he anticipated that I wouldn't want the job that he had offered me. He preconceived that. He was not surprised when I told him. He also doesn't have an understanding of what the word "redundancy" is, so I don't know how people with such incredible ability to define 75 percent to 25 percent based on years of experience, would have no understanding of what a redundancy of a position was.

PN1529

I just find this very difficult to believe. I found the testimony to be very vague and inaccurate. And I ask the Commission to not grant a variation in this matter.

PN1530

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Martinsen. A brief closing comment, Mr Prior.

PN1531

MS PRIOR: It is brief. The concept of obligation is something that I believe should be addressed, because much has been made of the fact that this application was only made when a breach notice was initiated by the Workplace Ombudsman. In reality that was as a result of the second investigation that had taken place and the answer to why Mr Drake didn't make this application earlier was that he believed he didn't have an obligation and it is evidence before the Commission that he believed that Mr Martinsen resigned and that is a matter that will be determined in another place.

PN1532

But in 30 years of employment of a range of people and Mr Drake employing somewhere 80 and 100 people in this city is a sizeable employer with 30 years experience. This was something that he hadn't come across before and in his experience what had occurred was fairly simple. What has happened in the last 14 months has not only been a driving exercise for my friend, for Mr Martinsen, but also for Absoe.

PN1533

So we say you shouldn't take much store by the fact that the word "obligation" has been thrown around, because whether he was right or whether he was wrong, Senior Deputy President, Mr Drake had reasonable reason on the evidence before you to have formed the view that he did, and when he realised that there may have been other issues there that needed to be addressed, he acted quickly and he made this application to have that particular matter dealt with.

PN1534

Unless you have some further requirements of us, we have no further submissions.

PN1535

THE SENIOR DEPUTY PRESIDENT: Good.

PN1536

MS PRIOR: May it please the Commission.

PN1537

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Prior. Can I thank the parties for their submissions in relation to this matter. I will of course attempt to decide this matter as promptly as I can. There being, as we've just heard, some comment on delays in the overall progress of this matter from its origins, some lengthy time ago, and for my part in that process, I'll attempt to expedite the decision writing as quickly as I can, as promptly as I'm able.

PN1538

Now, can I thank you for your submission and we're adjourned.

<ADJOURNED ACCORDINGLY [3.52PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PAUL GENRICH, ON FORMER OATH PN816
CROSS-EXAMINATION BY MR MARTINSEN, CONTINUING PN819
RE-EXAMINATION BY MS PRIOR PN956
THE WITNESS WITHDREW PN992
JEFFERY DALE MARTINSEN, AFFIRMED PN1000
CROSS-EXAMINATION BY MS PRIOR PN1002
THE WITNESS WITHDREW PN1220
MARIUS FRANCISCUS WYTTENBURG, AFFIRMED PN1223
EXAMINATION-IN-CHIEF BY MR MARTINSEN PN1223
CROSS-EXAMINATION BY MS PRIOR PN1296
RE-EXAMINATION BY MR MARTINSEN PN1361
FURTHER CROSS-EXAMINATION BY MS PRIOR PN1380
THE WITNESS WITHDREW PN1383
MARISKA KAREN VLUG, SWORN PN1383
EXAMINATION-IN-CHIEF BY MR MARTINSEN PN1383
CROSS-EXAMINATION BY MS PRIOR PN1416
RE-EXAMINATION BY MR MARTINSEN PN1464
THE WITNESS WITHDREW PN1474