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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 18454-1
SENIOR DEPUTY PRESIDENT DRAKE
C2008/2329
Appl’n to vary or set aside obligation to pay redundancy pay under PSA
Nuplex Industries Australia Pty Ltd
and
Mr Wolfgang Brinskele
(C2008/2329)
SYDNEY
10.12AM, THURSDAY, 01 MAY 2008
PN1
MR D CHIN: I appear for the applicant. Instructing me is MS V VINSKI.
PN2
MR R REITANO: I seek leave to appear for Mr Brinskele.
PN3
THE SENIOR DEPUTY PRESIDENT: Leave is granted for both counsel.
PN4
MR CHIN: Thank you, your Honour.
PN5
THE SENIOR DEPUTY PRESIDENT: What’s happened to the proceedings - I probably should know this, but I don’t, I’ve forgotten - before the Chief Industrial Magistrate?
PN6
MR CHIN: They have been stayed pending the termination of this application.
PN7
THE SENIOR DEPUTY PRESIDENT: That’s right. I had the tape there this morning and pull it out or listen to it or not.
PN8
MR CHIN: There’s a return or mention date listed in that matter. I don’t have that date to hand.
PN9
THE SENIOR DEPUTY PRESIDENT: Doesn’t matter. I just thought that was the case, though I wanted to check.
PN10
MR CHIN: Your Honour, before you today is an application by Nuplex Industries Australia Pty Ltd for exemption from liability to pay redundancy pay or severance pay to the respondent, Mr Brinskele, arising from a termination on 30 March 2007. The application, your Honour, proceeds upon regulation 2.1(2) of part 2 of chapter 5 of the Workplace Relations Regulations. Your Honour, I think the application has typographical error, or misreference to the relevant provision. The application refers to regulation 2.1 of division 5 of part 3. That’s incorrect. Your Honour would read that to refer, since we’re dealing with a preserved state agreement, regulation 2.1 part 2 of chapter 5.
PN11
Your Honour, may I provide some background by reference to a chronology in which I’ve sought to distil the significant features of the events as they have unfolded in this matter. May I hand your Honour a copy of the chronology?
PN12
THE SENIOR DEPUTY PRESIDENT: Sure.
PN13
MR CHIN: Your Honour, the basis for the application is that it will be submitted that the application obtained acceptable alternative employment for the respondent arising from a transmission of business from it to a company known as Lomb which took place in November 2006. Together with the chronology may I hand your Honour, as I’ve indicated in the list of authorities and legislation provided yesterday, a copy of the relevant industrial instruments. Firstly the Nuplex Industries Australia Pty Ltd Seven Hills Operations Agreement 2005. And secondly the Australian Liquor, Hospitality and Miscellaneous Workers’ Union Chemical Industry (APS Operations) Award. Your Honour might have those.
PN14
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN15
MR CHIN: Your Honour will see the story begins on 1 July 1974 Mr Brinskele, the respondent, commenced employment with a company known as Ajax Chemicals Pty Ltd as a laboratory technician which is located at Short Street in Auburn. Your Honour, this is a business that was successively transferred to different companies, ultimately to my client Nuplex Industries and then on to Lomb, the purchaser of that business or the successor of that business, in 2006. Can I take a moment to explain to your Honour the nature of the business of Ajax Chemicals, or Ajax Finechem as it became known, was one of the business of manufacturing, repacking and distributing purified chemicals as well as solvents and acids.
PN16
The laboratory was conducted in connection with that business which conducted chemical testing and analysis in connection with that business and added value to chemicals imported by the Ajax business by purifying those chemicals and then on-selling them to various industry bodies. Other laboratories, university research bodies, other research institutions and pharmaceutical companies and the like. The other aspect of the business was to test chemicals and then analyse chemicals from within other business divisions being operated by Nuplex at its site at Seven Hills. From the commencement of the respondent’s employment, as a laboratory technician, he was promoted to the position of laboratory supervisor in 1997 and in 1997 the Ajax business was purchased by a company known as APS Chemicals and was then transferred from that point to the Seven Hills site and remained there until the succession of the business to Lomb in 2006 - or 2007 I should say.
PN17
In 2005 the Ajax business was purchased by Nuplex, the applicant in these proceedings. And in June of that year the relevant enterprise agreement commenced operation approved by the Industrial Relations Commission of New South Wales. Can I take your Honour to look at the relevant instrument at this point. I should say at the outset for the purpose of this application the applicant concedes that from the operation of this agreement the applicant and the respondent were bound in respect to the respondent’s employment conditions, if not in respect of his pay classifications, by the provisions of this agreement.
PN18
If one looks at the terms of the agreement your Honour will see that in clause 3 the agreement is between Nuplex Industries, various trades unions and all employees employed by the company in any of the occupations, industries or callings specified in relevantly the Australian Liquor, Hospitality and Miscellaneous Workers’ Union Chemical Industry and APS Operations Award. Clause 4 denotes that the agreement applies to Nuplex’s premises at Seven Hills and relevantly in clause 5, your Honour, it’s stipulated that the agreement shall be read and interpreted wholly in conjunction with the parent awards set out in clause 3, relevantly the APS Operations Award.
PN19
The term of the awards, it says, shall be incorporated into the enterprise agreement. So that by operation of clause 5 the terms of the APS Award thereby incorporated in the terms of this agreement and form part of the agreement. Further, in respect of this award your Honour - or this agreement I should say - if your Honour turns to appendix C. Unfortunately it’s not paginated. But appendix C is to be found towards probably the last quarter of the document headed Redundancy.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes.
PN21
MR CHIN: Yes, your Honour. In clause 3 of appendix C the agreement sets out redundancy payment entitlements and in clause 3(ii) over the page the agreement sets out an entitlement to redundancy pay of four weeks pay at ordinary time rate of pay for each completed year of service up to a maximum of 64 weeks. That is the entitlement upon which, among other things, the applicant has proceeded to make a claim in the Chief Industrial Magistrates Court, proceedings which are currently stayed, and that is the obligation from which we now seek relief in this Commission. And we seek that relief on the basis, if your Honour will turn to the Award and in particular clause 25 of the Award subsection 5, or subclause 5 paragraph (iii) and that’s on page 20 of the Award.
PN22
Before (iii) in subclause 5, your Honour, the Award sets out entitlements to severance pay according to its own standard up to 20 weeks and your Honour will see that from clause 5(i)(b). And then on page 20 (iii) the provision of the award stipulates under the heading of Alternative Employment. In this clause, your Honour, which by operation of clause 5 of the enterprise agreement operates as part of that enterprise agreement, the agreement provides that:
PN23
Subject to an application by the employer and further order of the Commission, which by operation of regulations is this Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) of this subclause if the employer obtains acceptable alternative employment.
PN24
THE SENIOR DEPUTY PRESIDENT: For the employee.
PN25
MR CHIN: Yes. And that’s a provision as incorporated into the terms of the enterprise agreement, the provision upon which we proceed with this application.
PN26
THE SENIOR DEPUTY PRESIDENT: And you say you did, your client did?
PN27
MR CHIN: We did, yes.
PN28
THE SENIOR DEPUTY PRESIDENT: And that is the only factual matter in dispute? You said that the parties are in agreement that the enterprise agreement applies and that the terms of the Award applies as incorporated in the agreement. Is that the case?
PN29
MR CHIN: That’s as I understand it. The critical factual matters in dispute in these proceedings will be, on an objective basis, whether or not the alternative employment that Nuplex obtained for Mr Brinskele with Lomb was acceptable for the purpose of this clause and the relevant regulations.
PN30
MR REITANO: I don’t want my silence to be taken as agreement to what my learned friend said.
PN31
THE SENIOR DEPUTY PRESIDENT: That’s why I asked the question so I might hear from you.
PN32
MR REITANO: I don’t consider that what he said is the only issue in these proceedings.
PN33
THE SENIOR DEPUTY PRESIDENT: All right. That’s view then, Mr Chin.
PN34
MR CHIN: Well, I’ve said, I think I’ve submitted that it’s a primary, a critical issue.
PN35
MR REITANO: There are more fundamental additives here, your Honour.
PN36
MR CHIN: Well, if there are we’ve received no notice of them.
PN37
THE SENIOR DEPUTY PRESIDENT: That’s all right.
PN38
MR REITANO: And I don’t recall any direction about having to give my friend notice of anything.
PN39
THE SENIOR DEPUTY PRESIDENT: Would you two stop having a conversation? That would be good.
PN40
MR CHIN: Yes, your Honour. If I can return then - - -
PN41
THE SENIOR DEPUTY PRESIDENT: So your view is that it’s a critical issue and following that, I suppose, if that is the case what ought or ought not to be the payment, if at all.
PN42
MR CHIN: Yes indeed, your Honour. Your Honour has a discretion and guidance for that discretion is to be found in authorities to which I intend to take your Honour in due course, some of which I’ve listed in the list of authorities which I’ve provided to your Honour and my learned friend.
PN43
THE SENIOR DEPUTY PRESIDENT: All right.
PN44
MR CHIN: Critically among them your Honour would start from the, it will be informed by the general principles relating to redundancy provisions from the TCR cases and so forth, which begin with the proposition that the Commission does not contemplate severance payments being made on transmission of business. But ultimately it will be a question of whether the alternative employment obtained was acceptable by reference to objective standards, such as nature of work, job security, seniority, work location and so forth, as is well enumerated in the established authorities in this area.
PN45
If I can return, your Honour, to the chronology. I should before that, as identified in the application of course, the enterprise agreement, to which I’ve taken your Honour, incorporating the relevant providing of the award, to which I’ve taken your Honour, became by operation of division 2 part 2 of schedule 8 of the Workplace Relations Act from 27 March ’06 a preserved collective state agreement for the purpose of this application. Now if I may, as I previously indicated, return to the chronology. Your Honour will see that from September to October in anticipation of the closing down of the Seven Hills site which was to take place in 2007, the applicant engaged in a process of voluntary redundancy.
PN46
In November and December during that period the applicant provided the general manager of Lomb, a Mr Lipman who will be called as a witness in this case, with access to an office at the Seven Hills site and access to its employees and assistants in order to observe their work, meet with those employees and make a judgment as to which of those employees would receive offers of employment from the purchasing company. The purchase of the company took place effectively from 1 November ’06. A subsidiary company of Lomb, Scientific Australia Pty Ltd, purchased the Ajax Finechem business. But the business continued to be operated at the Seven Hills site by my client, the applicant, until the end of March 2007 and it did so under license to Lomb.
PN47
After 30 March 2007 the operations of the Ajax Finechem business shut down at the Seven Hills site and were transferred over to Lomb’s site located at Riverstone.
PN48
THE SENIOR DEPUTY PRESIDENT: Where is Riverstone?
PN49
MR CHIN: Well, Riverstone is, I anticipate the evidence will show, about 20 kilometres or 19 kilometres away from the Seven Hills site. It’s in the north west of Sydney.
PN50
THE SENIOR DEPUTY PRESIDENT: 20 kilometres north west of Seven Hills?
PN51
MR CHIN: I beg your pardon?
PN52
THE SENIOR DEPUTY PRESIDENT: 20 kilometres north west of Seven Hills?
PN53
MR CHIN: Yes.
PN54
THE SENIOR DEPUTY PRESIDENT: Okay. Yes, go on.
PN55
MR CHIN: Critically, your Honour, on 4 December 2006 the evidence, we anticipate, will show that Mr Lipman made an offer of alternative employment to the respondent for him to commence from January 2007 and that the respondent rejected that offer. The applicant gave notice by letter dated 12 March 2007 to the respondent that his employment would terminate and it did so on 30 March 2007. As I previously submitted, the business transferred to Lomb’s Riverstone’s site during which time, or after which time, the proceedings in the Chief Industrial Magistrates Court were commenced by the respondent and the evidence will show that a new laboratory at the Riverstone site of the successor company, Lomb, the Sydney Ajax Finechem business commenced operating in April this year.
PN56
It will be my submission, your Honour, that the evidence will disclose that the offer made by Mr Lipman to the respondent was acceptable
in an objective sense, that Mr Brinskele’s refusal of that offer was unreasonable in the circumstances and amounted to a failure
to minimise the hardship arising from any redundancy which the authorities established is expected of employees in his position.
It was an offer, in my submission, involving substantially the same duties and of substantially the same nature. That, I anticipate,
will be a matter of difference between the parties. Your Honour, I intend to call four witnesses in the applicant’s case.
Mr Sam Bastounas the group general manager for Nuplex,
Mr Lipman the general manager for Lomb, Mr Gonzalo Verges who is the QC, quality control and quality assurance manager for Nuplex
at the time to whom the respondent reported when he was employed by Nuplex and also Ms Sarah Hardie who is the human resources manager.
PN57
Your Honour, as a matter of housekeeping your Honour would have received by way of filing in the Commission yesterday afternoon two affidavits in reply from Mr Bastounas and Mr Lipman. I have two additional affidavits in reply.
PN58
THE SENIOR DEPUTY PRESIDENT: No, I don’t have them. If they were filed yesterday afternoon they may still be in the registry. I'll have someone search for them. I’ve got the original affidavits of Mr Lipman and Mr Bastounas, Mr Verges and Ms Hardie. But I don’t have the affidavits in reply. Don’t worry, they’re probably down stairs. I'll have them brought up.
PN59
MR CHIN: We can provide your Honour with copies if that’s convenient. There are two further affidavits in reply, one from Mr Verges and one from Ms Hardie. The one from Mr Verges was provided to the respondent later yesterday afternoon and an unsworn copy of the Ms Hardie reply affidavit was also provided, but I have a sworn final copy with some amendments made to Ms Hardie to hand to your Honour.
PN60
THE SENIOR DEPUTY PRESIDENT: Right, thank you. Yes.
PN61
MR CHIN: If it please the Commission may I proceed to calling Mr Bastounas.
PN62
THE SENIOR DEPUTY PRESIDENT: I think it’s my preference always to ask the respondent shortly to outline what they say about their case.
PN63
MR CHIN: Yes, your Honour.
PN64
THE SENIOR DEPUTY PRESIDENT: In addition to what they might want to say in their opening, so with me hearing your application with that in my mind. Thank you.
PN65
MR CHIN: May it please, your Honour.
PN66
THE SENIOR DEPUTY PRESIDENT: Mr Reitano, is there anything you want to briefly put to me about what you say about the case if you wouldn’t mind? I’m not requiring a full opening.
PN67
MR REITANO: If it would be of assistance to your Honour I’m happy to tell your Honour what some of the issues are.
PN68
THE SENIOR DEPUTY PRESIDENT: Yes. I always find it more useful to listen to the applicant’s case having heard from the respondent about those matters.
PN69
MR REITANO: Yes. Could I firstly say this. In respect of what my friend describes as housekeeping, we would commend this course
to the Commission because any cross-examination of witnesses, at least three of the four witnesses, will be relatively short and
there are no objections to any of the evidence. And so we will be suggesting as a matter of procedure your Honour should accept
all the affidavits, have them all tendered and then make the witnesses available with
Mr Lipman being made available last because he will be the longest of the four. The others will all be relatively short, probably
less than 15 minutes.
PN70
THE SENIOR DEPUTY PRESIDENT: All right, thank you very much.
PN71
MR REITANO: I didn’t want to forget to say that.
PN72
THE SENIOR DEPUTY PRESIDENT: No, it’s the most important thing.
PN73
MR REITANO: Can I then deal with the issues and perhaps starting at the beginning. Your Honour was taken to the provision of the certified agreement, in particular your Honour was taken to annexure C which is the redundancy benefit. I can take your Honour again to it, but I don’t think I need to for the purpose of what I’m about to outline. The annexure provides a scale of payments in respect of redundancy pay far and away in excess of any award standard of this Commission and far and away in excess of the award standard in the relevant award that was referred to as well. The annexure contains a discrete scheme in respect of redundancy pay under the agreement that was agreed between the relevant parties to the agreement.
PN74
What annexure C does not contain and what is vitally important for your Honour to be alerted to at this stage is what makes this application totally incompetent, and that is it does not contain any enabling provision that will allow your Honour to make any order exempting from the obligation to pay redundancy payment under annexure C. The only enabling provision in that respect is found in the award and I don’t care for present purposes whether it be said that the award is incorporated into the agreement or not. It doesn’t matter because the only enabling provision that will then survive, even if incorporated, would be the possibility that your Honour would make an order exempting from the obligation to pay under clause 25 of the award.
PN75
The award is very specific in respect of the power that the state Commission and now your Honour has. Your Honour can not vary the certified agreement that was made by the state tribunal. No one in this Commission can. There is no power to vary it in any relevant respect. The only exercise of power that is available to your Honour is that under an enabling provision, such as that which is found in the award in respect of the award clause. So even if my learned friend were able to persuade your Honour that your Honour would make an order exempting from compliance with the award obligation to pay we would still, as a result of these proceedings, be left to enforce schedule C, or annexure C. I keep calling it a schedule. Annexure C and the obligation to pay there.
PN76
And we say that in those circumstances any exercise of power by your Honour would be a futility because it would still leave in place the obligation to pay severance pay, if we win. That’s the first proposition. There are two others and I’m developing them in turn. The second proposition is relatively simple. The first is - they’re all strong, I don’t want your Honour to think that I’m putting them in any particular order.
PN77
THE SENIOR DEPUTY PRESIDENT: No - one, two, three.
PN78
MR REITANO: And I’m doing them in order of the way in which they arise. The second proposition is that my learned friend’s did nothing in the relevant sense to "obtain" employment for anyone. The authorities are clear about the meaning of the word "obtain". Even if your Honour were to find that they did something, make an office available to Mr Lipman for example, that had some relevant impact upon the offer of employment, your Honour would not be able to find that that was an "obtaining" in the relevant sense. The authorities speak of strong moving force, that is that they have to have been a strong moving force.
PN79
Your Honour will see that anything that happened in respect of offers of employment had very little to do with them in respect of my client. So that’s the second point, that there’s no relevant obtaining. The third point is that there’s no relevant acceptable alternative employment and this arises in a number of different ways, but I want to put to one side what will be a factual dispute on the evidence about offers and accept their case at its highest for the purpose of telling your Honour what the third issue is. I have to say in doing so I make no concession that the factual dispute would be resolved in their favour. There is a real issue, a real live issue about what it was, if anything, that Mr Brinskele was offered.
PN80
But if he was offered at its highest what they say he was offered, then we say that that’s not acceptable alternative employment for - and I'll give your Honour five, and there are only the five that just come into my head, there are many others, but the five what I think are the main ones. The first one is that Mr Brinskele was employment for about 32 or 33 years to work in a laboratory as a laboratory manager testing various things, doing various kinds of work in a laboratory. Your Honour would have seen from the chronology and your Honour will hear from the evidence that after Mr Brinskele’s employment was terminated there was no laboratory.
PN81
That is, in April 2007 to April 2008, early April apparently, there was no laboratory. It is an interesting concept that we are offering acceptable alternative employment to a laboratory manager, but we don’t offer him a laboratory to work in. And indeed, it was contemplated back in April 2007 when he was terminated that there was no laboratory. So that’s the first proposition. Secondly, there was no term or condition that applied from anywhere in respect of Mr Brinskele’s employment that was offered by the applicant here that even vaguely resembled the type of redundancy term that Mr Brinskele was entitled to under the agreement. The agreement did not - and it will be interesting to hear - but the agreement did not transmit to the new employer.
PN82
It is not as though it was a federal award or a certified agreement made by this Commission under the Act. Under the New South Wales legislation, if it remained an agreement it did not transmit. There are no similar transmission provisions to an incoming employer. Even if the business went over the agreement did not go over with it. Under the terms of the agreement that doesn’t happen and under the terms of the way in which Work Choices took over state awards and state agreements, it does not happen. So the first proposition - sorry. The second proposition is that in respect of redundancy Mr Brinskele with his then employer Nuplex, the applicant here, was entitled to something in the order of, I think it was three or four weeks for each year of service, as redundancy pay plus payment of accumulated untaken sick leave with this employer, maximum entitlement was 20 weeks pay under the award.
PN83
That can’t be acceptable alternative employment just on that term alone.
PN84
THE SENIOR DEPUTY PRESIDENT: But they’re no the only terms that matter.
PN85
MR REITANO: Well, let me get there. Three, all of the other terms of the certified agreement did not apply to Mr Brinskele’s employment with the incoming employer. Now, some of them - some of them - you will find something read alot or something reminiscent of some of them in the letter of offer that Lipman says that he gave to Brinskele, but not a lot. And I'll take your Honour through a whole heap of them that will demonstrate to your Honour that there were very many terms. Even if you applied a no disadvantage kind of test you don’t even get close.
PN86
Can I give in this part of the submission just give to you an outline, just give to your Honour but one example. They say they will tell your Honour as I understand the evidence in the letter of appointment that Mr Brinskele in his new whiz bang employment with Lomb would have got 17 and a half per cent annual leave loading and with his old employer didn’t get any. Wrong. Under the terms of the certified agreement he was entitled to annual leave loading of 20 per cent, not 17 and a half per cent. But there are a whole rang of other conditions that I'll take your Honour through step by step in the certified agreement that would not have applied and did not apply in respect of his employment that he was purportedly offered by the applicant.
PN87
Fourthly, in respect of sick leave - and the authorities speak of this and they all speak in one voice, but the state and the federal Commission of this issue appear to agree - in respect of accumulated untaken sick leave Mr Brinskele had something in the order of 1980 hours accumulated untaken sick leave that approximates to about 55 days, I think, something like that of accumulated untaken sick leave. If he accepted employment with them and forfeited his redundancy entitlement by doing so he went back to zero sick leave. That is, there was no offer of employment that his sick leave would be carried over into any new employment.
PN88
So he would lose what the redundancy benefit was to compensate for, that is the non transferable credits, and he would lose the redundancy benefit himself. And if he was working apparently as a laboratory manager in something other than a laboratory where he’d be vulnerable to be made redundant presumably on either one week or 20 weeks pay for severance pay. That’s four. Fifthly and finally is the question of location. He would be required to work 20 kilometres away from where his previous workplace was. Your Honour will see some evidence or hear some evidence that it was Mr Brinskele’s practice living at Toongabbie - and my geography is as, I think, as poor as your Honour’s in respect of this area - living at Toongabbie - only from what your Honour said early.
PN89
THE SENIOR DEPUTY PRESIDENT: No, no. I’m very well informed about Seven Hills. I have a vast amount of family who live at Mount Druitt and Seven Hills. So I just don’t know where Riverstone is.
PN90
MR REITANO: Well then your Honour’s geography is probably better than mine. Mr Brinskele lives at Toongabbie, he walked for about 50 minutes every morning to work at Seven Hills. That was his practice over probably the last 10 or so years. Every morning walked from his house at Toongabbie to Seven Hills, approximately 50 minutes. He did some assessment, even though he couldn’t drive because it’s a one car family and his wife uses the car, he did some assessment as to how long it would take him to get to Riverstone and he will tell your Honour that driving of a weekend - different from driving during the week - it took him between 30 and I think 40 minutes, or thereabouts, to drive in a car that he of course didn’t have.
PN91
If he’s challenged on it in respect of his ability to use the services of RailCorp to get to work, I think your Honour will hear that it will probably take longer. It’s about eight stations from the station closest to him, but there are few, if any, direct services and he may have to change trains in order to get to work. So there is not only 20 kilometres but a whole lot of inconvenience in having to travel to Riverstone to work in something other than a laboratory as a laboratory manager under terms and conditions of employment that were far less beneficial to him than he’d had in his previous employment without the protection of any certified agreement. That will be the case.
PN92
THE SENIOR DEPUTY PRESIDENT: Mr Chin, who is it that’s waiting outside the courtroom now? Is that a witness you have lined up?
PN93
MR CHIN: I think so, your Honour.
PN94
THE SENIOR DEPUTY PRESIDENT: He’s a very anxious man. I think he’s walked past that about 20 times.
PN95
MR CHIN: Right.
PN96
THE SENIOR DEPUTY PRESIDENT: He must be exhausted. In which order so you wish to call your witnesses?
PN97
MR CHIN: I propose - I don’t have an objection to my learned friend’s proposal in relation to accepting written statements or affidavits, but I do wish to call witnesses in the order that I enumerated in my opening. That is Mr Bastounas followed by Mr Lipman, Mr Verges and Ms Hardie. Your Honour, my learned friend’s proposition as put in the outline of his opening - - -
PN98
THE SENIOR DEPUTY PRESIDENT: It’s not really his opening, Mr Chin. That’s really just me - - -
PN99
MR CHIN: Or his indication to your Honour of his case.
PN100
THE SENIOR DEPUTY PRESIDENT: Yes. That’s just me having a preference to hear what it is that is the other case so I have it in my mind as I’m listening to your evidence.
PN101
MR CHIN: I should, your Honour, just immediately make one assertion of my learned friend. In relation to the transmission, the carrying over of the preserved collective state agreement to Lomb, can I indicate as I’ve listed in my list of authorities and legislation it will be my submission that the provisions of part 5 of schedule 9 of the Act have the effect of transferring benefits from the preserved collective state agreement to the successor of the relevant business which in my submission is Lomb, the company that made the offer of alternative employment to the respondent.
PN102
THE SENIOR DEPUTY PRESIDENT: What’s Lomb’s view about that?
PN103
MR CHIN: I don’t know what Lomb’s view is, but in my submission your Honour need not be concerned with that. It’s not - - -
PN104
THE SENIOR DEPUTY PRESIDENT: It might be a matter that the applicant considers about the acceptability as to whether the employer accepts those liabilities or not of a prospective employee. Anyway, it’s a matter you can put to me.
PN105
MR CHIN: In any even, your Honour, the effect of the Act is the effect of the Act. And in my submission the reasonableness of the offer and acceptability of it needs to be viewed in terms of the relevant entitlements, part of it which will by reference to the operation of the legislation.
PN106
THE SENIOR DEPUTY PRESIDENT: Do you want to mark the chronology as an exhibit?
PN107
MR CHIN: I beg your pardon, your Honour?
PN108
THE SENIOR DEPUTY PRESIDENT: Do you wish to mark the chronology as an exhibit?
PN109
MR CHIN: I wasn’t intending to, your Honour, but if it please your Honour. Perhaps the agreement and the award might be marked.
PN110
THE SENIOR DEPUTY PRESIDENT: Do you have any dispute about the matters set out in the chronology, Mr Reitano?
PN111
MR REITANO: There are matters, your Honour, that are disputed. As I said, when I told your Honour about what we see as the issues I told your Honour that I was taking the case at its highest. There’s issues about when offers were made and things like that. There’s a couple of other issues. I can indicate what they are to your Honour, but I’m happy for your Honour to - - -
THE SENIOR DEPUTY PRESIDENT: No, I think I'll - they’re matters that I'll deal with as we go through the case. Thank you.
EXHIBIT #NUPLEX1 AGREEMENT
EXHIBIT #NUPLEX2 AWARD
EXHIBIT #NUPLEX3 CHRONOLOGY
EXHIBIT #NUPLEX4 AFFIDAVIT OF MR SAM BASTOUNAS SWORN 04/04/2008
EXHIBIT #NUPLEX5 AFFIDAVIT IN REPLY OF SAM BASTOUNAS SWORN 30/04/2008
PN113
THE SENIOR DEPUTY PRESIDENT: Do you want to call the witness?
MR CHIN: Yes. I call Mr Bastounas.
<SAM BASTOUNAS, SWORN [10.55AM]
<EXAMINATION-IN-CHIEF BY MR CHIN
PN115
MR CHIN: Your name is Sam Bastouans and you reside at (address supplied)?
---Yes.
PN116
And your position is as group general manager of Nuplex Industries Limited, is that correct?---That's right.
PN117
You’ve sworn two affidavits in these proceedings?---Yes.
PN118
Do you have copies of those affidavits?---I do.
PN119
The first is sworn on 4 April 2008?---Yes.
PN120
That’s NUPLEX4, your Honour. And the second affidavit you’ve sworn dated
30 April 2008, is that correct?---That's correct.
PN121
And that’s NUPLEX5, your Honour.
PN122
THE SENIOR DEPUTY PRESIDENT: Yes.
PN123
MR CHIN: The evidence contained in those affidavits, I am content to rely on those as the evidence-in-chief, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Reitano.
<CROSS-EXAMINATION BY MR REITANO [10.57AM]
PN125
MR REITANO: Sir, do you have copies of your affidavits with you?---I do.
PN126
I’m just going to refer to firstly, and I think only, to your first affidavit. So could you open that up for me at paragraph 18. And could you just read that to yourself and refresh your memory about what you’ve said there and then I'll ask you a question to it?---I’ve read it.
PN127
It’s true, isn’t it, that in the course of that meeting with Mr Brinskele one of the concerns or one of the things he was interested in was what the laboratory at Riverstone was going to be like, correct?---I’m not sure whether he asked that question in that meeting.
PN128
I didn’t say he asked you a question, sir. I said one of the concerns he expressed in the course of that meeting was that he was interested to know about the laboratory, he was concerned or he wanted to discuss what the laboratory at Riverstone was going to be like. Correct?---Yes, I think so.
**** SAM BASTOUNAS XXN MR REITANO
PN129
Did you have any conversations with him about what the laboratory would be like? Or not necessarily you. Were you present during any conversations that he had where he was asking questions about the laboratory?---No.
PN130
No. Do you say that he at no time told you that he was concerned about the laboratory?---Yes.
PN131
Is it the case that as at the date that you had the conversation on 24 October, paragraph 18 of your affidavit, there was no laboratory
as far as you were aware at Riverstone out of which Lomb was going to operate?---There was a lab there which was throning laboratory
which I haven’t seen, but I understood there
was - - -
PN132
THE SENIOR DEPUTY PRESIDENT: Which was a what lab?---I’m sorry?
PN133
What kind of lab?---The Riverstone site had a facility there called throning, as I understand it.
PN134
Sorry, yes?---Yes. So there was some lab there, but I understood they had to update that lab.
PN135
MR REITANO: Did you know at the time, that is in October 2006, that they weren’t proposing to conduct the business out of that lab?---Look, I’m not privy to what Lomb was going to do.
PN136
I’m not concerned whether you were privy or not. Did you know in 2006? Did anyone tell you anything about that?---Just rephrase the question.
PN137
Did anyone tell you anything about the laboratory that Lomb had at Riverstone in October 2006?---No.
PN138
No. And you don’t recall a conversation that you had with Mr Brinskele in which he told you, in effect, that he was sceptical about this laboratory, that is at Riverstone?---That’s correct, I don’t recall having that discussion.
PN139
Did you have any other conversations with Mr Brinskele about working for Lomb other than what you’ve referred to in paragraph 18 of your affidavit or you statement?---We had one other discussion which is in the affidavit at a later time, but not in relation to that. Not at this time.
**** SAM BASTOUNAS XXN MR REITANO
PN140
And was that the one where you originally said in your sworn affidavit:
PN141
I don’t give a shit whether Lomb wants me to go over there, I will only go over if redundancy is paid. There’s no way I'll go to Lomb until my redundancy is paid by Nuplex.
PN142
Is that the other conversation?---Yes.
PN143
You of course now say that the word "shit" wasn’t used?---I was uncertain as to the use of that word in particular.
PN144
Right. Is there anything else in your affidavit that you’re uncertain about?---No.
PN145
Do you remember now Mr Lipman outlining in the meeting on 24 October anything about the Riverstone lab?---No.
PN146
Can I then ask you some questions about 21. Can you turnover to that. Once again refresh your memory of what’s said there?---Sure.
PN147
When you asked Mr Lipman the question there, or said to him:
PN148
Have you offered him a package superior to what he was getting from Nuplex and have you assured him that he will have his terms and conditions set at terms no less favourable?
PN149
And Mr Lipman apparently said absolutely and then some other words. Did you ask Mr Lipman any other questions about what the conditions would be?---No.
PN150
Did you ask him, for example, any questions about whether the terms in respect of redundancy pay were going to be the same if he went over?---No.
PN151
The only question you asked him was whether the terms and conditions would be no less favourable?---That's right.
PN152
Or alternatively whether the package was superior?---That's right.
PN153
Yes. You didn’t go into any detail about that with him?---No.
PN154
So you accepted his word, as it were, that the terms and conditions of employment were either no less favourable or superior?---Yes.
**** SAM BASTOUNAS XXN MR REITANO
PN155
You then told him that you go and have a chat with Mr Brinskele about the matter?---That's correct.
PN156
You appear not to have raised that issue with Mr Brinskele, that is the issue of whether the terms and conditions were no less favourable?---Well, it’s as per my affidavit.
PN157
My question is did you ask Mr Brinskele anything about the terms and conditions of employment that Lomb were offering him?---No.
PN158
Did you tell him, for example, anything about what you understood about the terms and conditions of employment?---Not that I can recall.
PN159
You see, the purpose of your conversation with him, with Mr Brinskele, was to try and have a chat to talk him around, wasn’t it? Correct?---Sorry, to what?
PN160
The purpose of your conversation with Mr Brinskele after you spoke to
Mr Lipman was to have a chat to Mr Brinskele to try and talk him around to accepting the offer of employment, correct?---That's correct.
PN161
So one thing you would have wanted to know immediately when you were having such a chat would be why he wasn’t accepting employment?---Correct.
PN162
And one of the things - did you ask him that?---I did and that’s when we had the discussion about - the only issue he raised with me was the issue of the redundancy, as I’ve said in my statement.
PN163
Did you ask him what his problems were in respect of the offer that Lomb were making to him, that you understood Lomb were making to him?---Yes I did.
PN164
You don’t say that in paragraph 22 of your affidavit. Once again, just take your time and read it?---Yes.
PN165
Correct? You agree with me you don’t say there hey Wolfgang, what’s the problem with the Lomb offer or anything like that, do you?---If I can read from my statement there?
PN166
No. Can you answer my question rather than read from your statement. You don’t say in your statement what is the problem with the Lomb offer. Do you say that’s what the words, "Why did you do that" mean?---That’s what I was getting it by using those words.
**** SAM BASTOUNAS XXN MR REITANO
PN167
Right. What I wanted to suggest to you is that he told you in that conversation that he was concerned about going over to Lomb which
didn’t have a laboratory and then effectively being made redundancy and receiving no redundancy pay?
---That’s not correct.
PN168
And what he told you was that there was no blueprint for a laboratory at Riverstone, didn’t he?---No.
PN169
And he told you that he didn’t know who, if anyone, was going over there, correct?---No.
PN170
And he told you that the redundancy package that Lomb offered was not comparable with the one that Nuplex had, correct?---No.
PN171
Did you investigate that issue, by the way, what redundancy arrangement Lomb might have had?---No.
PN172
Did you know?---No.
PN173
So you knew nothing of the terms and conditions of employment that Lomb were offering to Mr Brinskele?---Other than Alan’s comments that they were superior to what the company was.
PN174
Right. And you did nothing to investigate or explore whether that was right? You just accepted what Alan told you?---That's right.
PN175
Yes. Thank you, sir.
PN176
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
PN177
MR CHIN: No, your Honour.
PN178
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bastounas. You’re excused?---Thank you.
You may come and go as you please.
<THE WITNESS WITHDREW [11.09AM]
PN180
THE SENIOR DEPUTY PRESIDENT: I’m going to adjourn. It may not be convenient, but I’m going to adjourn until 11.30.
PN181
MR CHIN: Yes, your Honour.
PN182
THE SENIOR DEPUTY PRESIDENT: If that causes any inconvenience to take a long break now, you can take longer finishing a witness over the lunch break if you need.
<SHORT ADJOURNMENT [11.09AM]
<RESUMED [11.45AM]
PN183
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. I’m sorry for the delay. Mr Chin.
PN184
MR CHIN: Thank you, your Honour.
PN185
THE SENIOR DEPUTY PRESIDENT: I'll be happy to sit later if you need it. Yes.
MR CHIN: Your Honour, I call Mr Alan Lipman.
<ALAN MARK LIPMAN, SWORN [11.46AM]
<EXAMINATION-IN-CHIEF BY MR CHIN
PN187
THE SENIOR DEPUTY PRESIDENT: Yes. Do you wish to tender the two affidavits?
MR CHIN: I do, your Honour.
EXHIBIT #NUPLEX6 AFFIDAVIT OF ALAN MARK LIPMAN SWORN 04/04/2008
EXHIBIT #NUPLEX7 AFFIDAVIT IN REPLY OF ALAN MARK LIPMAN SWORN 30/04/2008
PN189
MR CHIN: Your name is Alan Lipman?---It is.
PN190
You’ve sworn two affidavits for the purpose of these proceedings?---I did.
PN191
Do you have copies of those affidavits with you?---I do.
PN192
In regard to your first affidavit sworn 4 April 2008 you give as your address (address supplied). Is that your work address?---It’s one of my work addresses. I work there sometimes.
PN193
Your residential address is (address supplied)?---It is.
PN194
Your Honour, I tender those affidavits and that is the evidence-in-chief for
Mr Lipman.
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Reitano.
<CROSS-EXAMINATION BY MR REITANO [11.47AM]
PN196
MR REITANO: Mr Lipman, in your affidavit you refer to on a number of different occasions conversations that you had either with
I think mainly with
Ms Hardie, but maybe other people - I don’t want to confine it - about obtaining copies of, if I can put it neutrally again
- documents that related to the terms and conditions of employees of Nuplex. I want to ask you some questions about those, but
do you recall the references that I’m talking about?---Yes.
PN197
I think the only document that you ever asked for and never received that’s referred to in your letter, and you correct me if I am wrong, is something that’s described as the "standard terms and conditions letter of appointment", or something like that. Is that correct?---Yes.
**** ALAN MARK LIPMAN XXN MR REITANO
PN198
Did you receive any other documents?---I received a list of employees and what their wages were and length of employment and that as well.
PN199
I think I'll come to that in a moment?---Yes, all right. Yes.
PN200
But I think I know what you’re talking about and we’ll explore that. Were they the only two documents?---Yes.
PN201
Now, the standard terms and conditions of employment document that you received, when it’s said that it’s standard did you rely on what Ms Hardie or someone else told you to come to the conclusion that it was standard, or alternatively did it have written on it standard, or something like that?---It was described to me as this is their standard terms and conditions.
PN202
Right. Did the document refer in any way specifically or particularly to any nominated person?---No. I think it was just a blank document that had the terms and conditions in it.
PN203
Right. So it didn’t, for example, refer to Mr Brinskele by name?---No, not at all.
PN204
Did you ever receive any document at all that specifically dealt with the terms and conditions of Mr Brinskele’s employment?---No sir.
PN205
Did you ever receive, either because you asked or because someone gave it to you, a copy of the Nuplex Seven Hills Enterprise Agreement 2005?---No sir.
PN206
No. And I'll hold it up. I don’t know if the one - have you see the document I’m holding up before today?---Never seen it. No sir.
PN207
Never seen it at all? Thank you. Do you manage the Riverstone site?---I don’t have day to day management of the site, no.
PN208
Does someone who does manage that site report to you?---Yes.
PN209
Right. And that site commenced operation - once again without going precisely - about April, May 2007?---No. The site has always existed. We moved the Ajax business that we had acquired across at around about that time.
PN210
Right. Perhaps I can do it the other way?---Yes.
**** ALAN MARK LIPMAN XXN MR REITANO
PN211
The site, the business that you acquired closed down as at April, May 2007?
---Yes. It was actually 31 March.
PN212
Okay, thank you. And at that time - don’t feel that I’m being critical or anything like that - but at that time there was no laboratory in which Mr Brinskele could have been employed at Riverstone?---That is correct.
PN213
Yes. It needed to be built?---Absolutely.
PN214
Right. And at that time as at 31 March 2007 - again I don’t want you to think that I’m being critical of you - but at that time no development application had been submitted to - - - ?---Blacktown Council.
PN215
Blacktown Council for the purpose of building a laboratory at Riverstone?
---Correct.
PN216
Because as I understand your evidence - and I’m putting it in the broad, I know you go into a bit more detail - you or someone took the view that it would be easier to put in two development applications for the two different things that needed to be built at the same site?---Correct.
PN217
And so the first development application was for what in the broad? What was it?---It was an extension to our warehouse facility that was already on the site.
PN218
Right. So the first development application for the extension had been put in some time before 31 March ?---Yes.
PN219
And had not yet been approved as at 31 March?---Correct.
PN220
And when was it approved?---It was approved in August ’07.
PN221
All right. Did you rely upon what others told you about development applications, or did you have some knowledge of them yourself?---Well, both in effect. We did have a company that we employed to advise us on the development applications that we had at hand.
PN222
Right. So when you say a company, was that a company that specialised in processing development applications?---Correct.
**** ALAN MARK LIPMAN XXN MR REITANO
PN223
Right. So you at least in part relied on what they were telling you?---Yes.
PN224
And one of the things I assume that they might have told you is it’s better to do this in two bits rather than one?---Yes.
PN225
Right. And did they tell you - when was that development application, the first one for the extension, when was that put in?---We lodged it I believe it was about 1 November ’06.
PN226
Right. Did you at any time before the closure of the site in 2007 tell Mr Brinskele that you put in two development applications?---Not that I can recall.
PN227
Did you at any time tell him that council had not approved the construction of a laboratory at Riverstone?---No, I would never have discussed that with him.
PN228
No, thank you. Now, did you I think at least on one occasion you had a conversation with Mr Brinskele about what his redundancy entitlement would be if he worked for Lomb?---Around about, yes.
PN229
When you say around about?---Well, I didn’t have numbers. I didn’t have anything to speak to him about other than what I said in my statement.
PN230
Which was as I recall, and you correct me if I’m wrong, but something to the effect of, "Whatever the statutory entitlement
is, that’s what you’d get"?
---Correct.
PN231
Yes. You knew that was a matter of concern to him though, didn’t you?---Yes I did.
PN232
Did you know that he had a significant payout due to him from Nuplex?---Well, I didn’t in terms of what the quantum of it was. I didn’t know what it was or whether his entitlement, I didn’t know.
PN233
Right. You didn’t speak to anyone at Nuplex about that?---No sir.
PN234
About what his redundancy entitlement would be?---No, I didn’t - - -
PN235
Sorry?---I was about to say I didn’t speak to anybody about anybody’s redundancy about any of the employees.
**** ALAN MARK LIPMAN XXN MR REITANO
PN236
Right, okay. I apologise, I started to talk over you because I thought you’d finished. In respect of information that was provided to you, did anyone from Nuplex - I presume Ms Hardie, but it may have been others - provide you with information about what redundancy entitlement in the general, forget about the specific - that is a dollars and cents about - but in the general any redundancy entitlement that any Nuplex employee would be entitled to?---No, other than - - -
PN237
Yes?---If I may?
PN238
Yes?---Other than I understood that the union members on the site had negotiated a redundancy package and that the salaried staff were not being offered a redundancy package. That’s all I knew.
PN239
That is you did not know, for example, that the union members were getting 10 weeks for each year of service or anything like that?---No, I didn’t know any of the detail. No sir.
PN240
All you knew was that there was that division and there were some people getting it and some people who weren’t?---Yes.
PN241
And that’s all you knew?---Yes.
PN242
And you didn’t ask any more questions about that?---It wasn’t my concern.
PN243
No. Well, pausing there for a moment. One of the things that you were you say, I think in your statement, eager to do was to ensure that Mr Brinskele’s terms and conditions of employment were either superior to or no less favourable than those which applied in respect of his employment at Nuplex, correct?---Correct.
PN244
Did you not consider it important to know in order to make that assessment what his redundancy entitlement was?---Well, rightly or wrongly I made an assumption that the redundancy entitlement was what it would be statutorily. I didn’t think it would be any different.
PN245
You didn’t know what it would be statutorily though, did you?---No.
PN246
No. So you could make as at either then or now any assessment without knowing that as to whether his terms and conditions of employment were more or less favourable than those that applied to Nuplex, correct?---Yes.
**** ALAN MARK LIPMAN XXN MR REITANO
PN247
So when you told, for example - and I hope you don’t think I’m being critical, and I’m not being critical - but when you told Mr Bastounas, that the terms and conditions of employment were either superior to certainly no less favourable, you didn’t know that?---Well, I believed it to be true at the time.
PN248
Yes, but you’d made no inquiries, as it were, to avoid being wrong about that?
---Correct.
PN249
What other - did you make any inquiries of anyone about what Mr Brinskele’s accrued but untaken sick leave entitlement was?---Not specifically. All of that information was supplied to me in a document.
PN250
You knew that he had a significant entitlement to sick leave?---Absolutely.
PN251
With Nuplex?---Yes.
PN252
Did you at any time tell him that that accrued sick leave - sorry, I withdraw that. You didn’t at any time tell him that that accrued entitlement to sick leave would be taken over to his employment if he accepted it with Lomb, did you?---Not that I can recall.
PN253
No. It wasn’t contained in the letter that you say you gave him, was it?---Can I refer to the letter?
PN254
You can if you like.
PN255
THE SENIOR DEPUTY PRESIDENT: Which attachment is it?
PN256
MR REITANO: AL2, your Honour. It’s after the sale agreement.
PN257
THE SENIOR DEPUTY PRESIDENT: Page 80?
PN258
MR REITANO: Yes. If I could ask you to go to, Mr Lipman, if it assists you, it’s on page 84 is the section about carers leave and that I think?---Well, it says on 83 that:
PN259
Your current long service leave accrual with Nuplex will be transferred to the company.
**** ALAN MARK LIPMAN XXN MR REITANO
PN260
Yes. I don’t think I asked you about long service leave?---Okay, one second.
PN261
Which I think is dealt with on page 84, but you feel free to look at any part of the document you wish to look at?---Well, I think it does there at the bottom of clause 10.1:
PN262
Your current personal carer’s leave including sick leave accrual with Nuplex will be transferred to - - -
PN263
Sorry sir?---Page 84 10.1, the last sentence.
PN264
Thank you very much. I missed that, thank you. I think I’m withdrawing the submission now.
PN265
THE SENIOR DEPUTY PRESIDENT: I think so.
PN266
MR REITANO: In respect of long service leave, the letter deals with that, that it goes over?---Yes.
PN267
In respect of annual leave, what was to happen to that?---Well, all the accrued entitlements would transfer to the company.
PN268
Right. Now, can I then go to something else while you’ve got the letter in front of you. The employment that was being offered
to Mr Brinskele was at Riverstone?
---Yes.
PN269
I’m sorry, just for a moment. This letter doesn’t deal with redundancy, does it?
---Not that I can recall.
PN270
I hesitate because I missed the sick leave sentence?---It may not specifically refer to redundancy.
PN271
Specially or generally?---Yes.
PN272
Right. The other thing that it provides is that the new employment would be at Riverstone, correct?---Yes.
PN273
Or anywhere else in the whole world that Lomb decided?---If you want to put it that way.
**** ALAN MARK LIPMAN XXN MR REITANO
PN274
Well, that’s what paragraph 3 says, isn’t it? Correct? It’s on page 81 on my copy, the second page of the letter?---Yes. Well, it would only be in the most general sense. I wouldn’t say that we would ask him to work anywhere in the world for a lengthy period of time. I envisage in a statement like that that there may be a reason for him to visit one of our suppliers. We import a lot of goods so there may be a requirement that we want our senior chemist to go and see what their processing procedure is, what their QA procedure is, so that we know. It would be in that context only.
PN275
Well, the letter doesn’t say that. The letter say that you can at your discretion send him anywhere you like?---Yes, for a short period of time.
PN276
Where does it say "short period of time", sir?
PN277
You may be required to work at any other place or establishment to meet the business needs of the company.
PN278
?---Well, we’re referring to a temporary period. We don’t just uproot people.
PN279
I’m sorry, the first sentence doesn’t refer to a temporary period?---Well, if you keep reading it does refer to temporary periods.
PN280
Yes. The temporary periods - sir, I don’t want to argue about the construction?
---Yes.
PN281
Do you agree with me that the first sentence entitles you as the employer to ask him to work at any other place or establishment to meet the business needs of the company?---I agree with that, but we’re a national company and we also have a subsidiary in New Zealand. So there may be cause for him to travel to one of our other offices or to go to New Zealand where we have a business or, as I said, indeed to visit some of our overseas suppliers.
PN282
And there might be a requirement for you if you had an office in Auckland to require him to work at Auckland for some indefinite period of time?---Highly unlikely. Because it’s a sales office.
PN283
Under that term of the letter of appointment you could require him to work anywhere you wanted to?---We’re not unreasonable people. We don’t act unreasonably and we wouldn’t do that to people.
**** ALAN MARK LIPMAN XXN MR REITANO
PN284
THE SENIOR DEPUTY PRESIDENT: He’s asking you could, not would?
---Well, if you’re going to put it that way the answer is yes I suppose we could.
PN285
Now, can I ask you about, while we’re on the letter, under clause 2.3 you could require him to perform other tasks which weren’t
in his job description, correct?
---Yes.
PN286
Under 2.4 he would be required to comply with companies, policies and procedures as amended from time to time?---Yes.
PN287
Did you provide him - I know you say you provided him with the letter. Do you say you provided him with the company’s policies and procedures?---No we did not.
PN288
No. Was there a reason why you didn’t provide those to him?---He hadn’t signed his letter and given it back to me at that point in time. He wasn’t an employee.
PN289
You didn’t think it was important in order for him to assess whether he would accept the offer or not to know what those policies and procedures were?---I have never provided that to anybody I’ve employed.
PN290
Right. Similarly in paragraph numbered 5 the company could require him to work additional hours?---Yes.
PN291
In respect of additional hours, did you have any conversation with anyone about Mr Brinskele’s then existing terms and conditions of employment and what hours he could be required to work?---No.
PN292
When I say then existing, then existing with Nuplex?---I understood that.
PN293
Could I then ask you some questions to do with the conversations you say you had with Mr Brinskele during the latter part of 2006. firstly I want to ask you slightly out of order about the conversation that you had with him where you say you gave him the written offer, or the written letter. It’s dealt with, if you need to refer to it, in I think paragraph, or it’s finally dealt with at paragraph 20 when you say he walks off with the letter - sorry, I withdraw that. Paragraph 41. Now, I think the conversation starts at about paragraph 37?---Yes.
PN294
Firstly was there anyone else there when you had the conversation?---In the office at the time?
**** ALAN MARK LIPMAN XXN MR REITANO
PN295
Yes?---No. In the general office, yes. In the office where I spoke to Wolfgang, no.
PN296
Yes. That is there was no one else listening to the conversation?---Correct.
PN297
Yes. And what did you have with you at the time?---I had the two copies of the letter.
PN298
Yes. Did you have anything else with you?---My laptop computer, my notes for the day, I had other copies of other letters of offers that I was going to make to other staff members on the day.
PN299
And did you say to ..... when you first spoke to Mr Brinskele did you know at that point when you first sat down and had the conversation whether he wanted to work for Lomb or not?---No. He hadn’t said yes or no. I was confident that he had indicated to me prior that he was certainly interested in working for Lomb and the idea of the conversation was to go through the letter that I was going to give him.
PN300
Could you just repeat that again? Sorry, I missed the last part?---We had had a number of discussions. I was confident that he was interested in working for Lomb and therefore I had put together an offer letter for him and the purpose of our meeting was to go through that offer letter.
PN301
You knew, didn’t you, as at that time that one of the concerns that Mr Brinskele had raised with you prior to then was about the laboratory that he’d be working from, didn’t you?---Well, I didn’t see it as a concern. We may have had a general chat about laboratory, but there was no, I never said that we had a laboratory. He knew he wasn’t going to a laboratory. We had always discussed the fact that we were going to build a laboratory because the laboratory is a key component of what the Ajax business is, the business we bought.
PN302
But he had asked you in the past questions about the laboratory and wanted to know about what the plans were for the Riverstone laboratory?---Well, I stand by what I’ve said in my statement. I don’t believe that we had any sort of lengthy discussions in that regard at all.
PN303
Right. The one thing that you knew as at 4 December when you walked in the room, of course, was that you didn’t have a laboratory at Riverstone?---Yes and he knew that as well.
**** ALAN MARK LIPMAN XXN MR REITANO
PN304
Putting to one side he knew that as well, the reason you knew that he knew that - sorry, don’t put it to one side. The reason you knew that he knew that was because he told you. You’d had a discussion about it?---Yes. I told him that we wouldn’t have a laboratory at the time that he started with us, that's correct.
PN305
Did you tell him at all when he’d start working in a laboratory? Either on 4 December or before?---The proposal was and the proposal with all the employees were that in the terms of the context of the purchase - if I could just take a step back. The business was operating on that site on our behalf by Nuplex up until 31 March. So what we were doing was that even though we were employing people they were still working for us and being paid by us, but they were working on that site until such time as we had made arrangements to move the business off the site. So the fact that Mr Brinskele or anybody else had a commencement date prior to the time we moved the business they were still working on the site doing the job that they were doing. There was always going to be a hiatus, and I explained this to Wolfgang, that there was always going to be a hiatus from the time we physically had to shut all the plant down and physically pick it all up and move it. That was always going to be the case, whether it was the laboratory or any other piece of plant.
PN306
You had made it clear to him as at the date of this conversation that there were delays associated with the new laboratory opening, correct?---Well no. Again, I stand by my statement. I don’t believe that there were delays. I explained to him what the situation was.
PN307
And he told you that he had misgivings about going to work for Lomb in circumstances where you didn’t have a laboratory, correct?---No. I stand by my statement.
PN308
Did he at any time tell you that he was concerned about going to work for Lomb, irrespective of standing with your statement or not, that he was concerned with going to work for Lomb in circumstances where Lomb did not have a laboratory for him to work in?---Not that I recall.
PN309
Did he tell you that he had misgivings because if he went to work for Lomb and was retrenched he would be foregoing a significant entitlement? Forget about dollars and cents that he put to it, but a significant entitlement?---Not that I recall.
PN310
Did you know from your conversations with him that he was concerned about losing his redundancy entitlement?---No.
**** ALAN MARK LIPMAN XXN MR REITANO
PN311
You say that he never raised that with you?---I say to you and I stand by my statement that the issue of redundancy was discussed as to whether or not Lomb was going to pay the redundancy and I said no, that’s an issue to do with Nuplex. It had nothing to do with me, the redundancy.
PN312
Putting aside what it had to do with you, did he tell you he was concerned about not getting his redundancy pay?---Prior to 4 December or after 4 December?
PN313
Let’s deal with it on 4 December for the moment?---On 4 December prior to my discussion with him or after he supposedly came back and said he didn’t want the job?
PN314
Let’s deal with it at any time on 4 December?---Okay. During the meeting that I had with him when I went through the letter of offer, that didn’t appear to be a concern to him at the time. When he came back and said no, no, no there’s been a mistake, I want my redundancy, obviously it was a concern to him at that time.
PN315
Yes. Because the sequence of events was that you couldn’t tell him - is this what I understand to be the construct - you couldn’t tell him whether anything you did qua him would affect his redundancy pay, he then leaves the room, he then comes back perhaps having discovered, one might speculate, about what happens to his redundancy pay and tells you it’s a concern? I’m using the word "concern" to put it neutrally?---Could you just put the question again?
PN316
The sequence that I think you’ve told us about is that you had the meeting with him, he raises the issue of redundancy pay with you?---Yes.
PN317
You say that you were unable to tell him one way or the other, that wasn’t a Lomb matter?---Correct.
PN318
It was a Nuplex matter?---Yes.
PN319
He then leaves the room and comes back to you some time later, forget the time?
---Yes.
PN320
And tells you, "It’s a concern about my redundancy pay" and one might speculate because then he had some more information?---Yes.
PN321
Yes. And he told you then that his concern was that he was going to lose a significant redundancy payment?---No, he didn’t say that at all.
**** ALAN MARK LIPMAN XXN MR REITANO
PN322
What did he say?---What I said in my statement, and I stand by that.
PN323
Yes. What did he say? I don’t require you to read your statement, but just tell me in the broad what he said?---In the broader sense he said, "No, I want my redundancy" and he effectively rejected the offer that we had spoken about.
PN324
Right. And that’s when you at no time said to him, "Well, we’ll offer you the same redundancy deal", or, "We’ll take over any accrued entitlement to redundancy pay"?---Not at that time, no.
PN325
Not at any time?---Well, I beg to differ. In my statement I did try and find a resolution to what his problem was. We were still interested in hiring him and I refer, I think, on 18 December we had a subsequent meeting.
PN326
Despite your keen state of interest in hiring him, you were at no time motivated to offer him that you would take over whatever redundancy entitlement that he had in his employment with Nuplex and treat his employment as continuous for redundancy purposes with that of Nuplex, correct?---Yes.
PN327
The most you ever did in order to deal with that is to say, "I'll give you $10,000 a year for every year you stay with us", or something like that"?---Well, it was a discussion that we had where I was, in effect, trying to put him in the same position as he perhaps could have been had he received redundancy without, you know, paying redundancy.
PN328
Well with respect, let’s assume for a moment a figure of $100,000 is his redundancy entitlement with Nuplex. You weren’t offering to write a cheque for $100,000, were you?---No sir.
PN329
No?---Never was.
PN330
And nor were you prepared to say to him well, if your redundancy benefit with Nuplex is $100,000 today and we make you redundancy in 12 months time we will pay you $100,000?---I didn’t say that, that's correct.
PN331
No. You weren’t offering anything like that, were you?---No.
PN332
Nor were you offering at any time something like four weeks for each year of service that you’ve had with Nuplex?---No. I refer back to my original statement, which was that it was whatever the statutory requirement was, that’s what we would pay.
**** ALAN MARK LIPMAN XXN MR REITANO
PN333
Yes. Now, what I want to suggest to you is that you didn’t give him either copy of the two letters that you had?---That’s incorrect.
PN334
Why didn’t you keep a copy of the letter?---Because I had a copy of it on my laptop computer.
PN335
Why didn’t you keep a hard copy of the letter with the date on it?---I don’t tend to do that.
PN336
You see, sir, we are now in a position where the only copy of the letter that we see is one that has a date that’s after the
day that you say that you gave it to
Mr Brinskele?---Sure.
PN337
Yes. You understand that there’s some conjecture, or some disagreement, between you and Mr Brinskele about that?---Yes.
PN338
And you understand that I’m suggesting to you that one of the reasons that
Mr Brinskele does not have a copy of the letter or both copies of the letter is because you didn’t give it to him?---Well, I
disagree with that. I stand by my statement.
PN339
Now, the laboratory, I think I read somewhere for the first time today that the laboratory opened earlier this month?---Correct.
PN340
This is the shed, am I right?---No. They were two different things.
PN341
Right. Is this the demountable?---Yes.
PN342
And you’ve dealt with that in your statement. There are three people who work there?---Yes.
PN343
And of those three people - when I say there, at Riverstone?---Yes.
PN344
And of those three people, how many work for Nuplex?---All three of them work for Nuplex.
PN345
And do you know whether they were paid redundancy pay by Nuplex?---Not specifically.
**** ALAN MARK LIPMAN XXN MR REITANO
PN346
No, I’m not asking you specifically sir. Do you know generally whether they were paid redundancy pay?---I believe so.
PN347
Yes. Is it your understanding that everyone who worked for Nuplex who was terminated as a result of this takeover or this acquisition, other than Mr Brinskele, received redundancy pay?---I believe so.
PN348
Yes. Can you just refresh my memory, or perhaps I'll ask you. Chris Elliott?
---Yes.
PN349
What was he employed as in his employment with Nuplex?---He was employed as a chemist.
PN350
Yes. And what was he employed at after 1 April 2007 with Lomb?---He wasn’t.
PN351
Right. When did he obtain employment with Lomb?---In September 2007.
PN352
And what was he employed as in September 2007?---A chemist.
PN353
Right. And when was he offered employment?---In September 2007.
PN354
Right. And is that because in September 2007 the shed was set up?---No. I'll explain to you what happened.
PN355
Sure, thanks?---We had a small - there’s two demountables. So we’ll go back to the first demountable. We have a small demountable shed and in that what we had been doing what repacking chemicals. And then we acquired a new piece of scientific equipment, an ICP which is for analysing metals in solutions. And we had installed the ICP in there to learn how to use it and to run it up effectively. So in employing Chris he was employed on the basis of initially helping us to set that equipment up. The lab at that stage still hadn’t been built.
PN356
When you say the lab wasn’t built, I keep referring to the shed. There was a shed that was used as a lab at some point that came into existence, wasn’t there?---No.
PN357
No? Okay. I thought I read in your affidavit something about that, but I may have misunderstood?---Yes.
PN358
Okay. When did the lab - - - ?---The physical laboratory?
**** ALAN MARK LIPMAN XXN MR REITANO
PN359
Yes. When did that actually start operation?---In April this year.
PN360
Right. And this is what I’ve referred to as the demountable?---Yes.
PN361
Why is it a demountable and not a building?---Well, there were two reasons. One is we physically couldn’t fit it into the existing structure on the site. There was nowhere to actually put it without cutting back on our production capability. And the second thing is we don’t own the site. We have a long term lease on the site. And we took a view that if we were going to spend a lot of money building a laboratory that it would be good to take it with us if and when we had to leave the site. And that’s why we just chose to do it that way.
PN362
But was that decided back in - when was that decided?---It was probably decided in around May or June of 2007.
PN363
Right. So it wasn’t something that you told Mr Brinskele about?---No.
PN364
No. Ishmael, was he employed in September 2007?---No sir. He was employed on 1 April 2008.
PN365
Right. So he started about a month ago?---Yes.
PN366
And Sunil?---Sunil, yes.
PN367
When did he start?---Sunil started soon after the facility at Nuplex closed down after 31 March 2007. He worked as a casual storeman for us for a period of time before I gave him full-time employment as a laboratory administrator.
PN368
Right. Again, all of these people, these were all people who worked for Nuplex?
---Yes.
PN369
Was Sunil offered employment prior to the takeover or the acquisition?---No.
PN370
No. And was he employed as a laboratory administrator before the acquisition?
---No.
PN371
What was he employed as before?---At Nuplex he was employed, I think, in some sort of - I’m not quite sure. He had some role in the production area of the business, but he is a chemist by training.
**** ALAN MARK LIPMAN XXN MR REITANO
PN372
Right. The only laboratory employee that you had on 1 April 2007 was nobody?
---Correct.
PN373
And right up until September you had no laboratory employees?---Correct.
PN374
Yes. And you understand that Mr Brinskele was in his position - sorry. And prior to 1 April 2007 you hadn’t offered anyone employment to work in a laboratory under the supervision of Mr Brinskele after 1 April?---Correct.
PN375
So Mr Brinskele in his job prior to 1 April was, amongst other things, responsible for supervising the work of a number of employees, correct?---Yes.
PN376
And you were offering him employment, whenever it was, after that time where he’d be supervising at least up until September nobody?---Well, I didn’t know that at the time, but as it turned out you’re correct.
PN377
You certainly knew that for a period of months - forget about the number, month or months - that he would be supervising nobody?---Yes.
PN378
And he would not be working in a laboratory?---No, but the idea was that he would help us in designing the laboratory and ensuring that it met standard and did all those sorts of things.
PN379
And prior to 1 April Mr Brinskele had not been employed in a position as a laboratory designer, had he?---No sir.
PN380
No. How long do you say - back to 4 December and this is the only matter that I have left for you - how long do you say that the conversation on 4 December, the first one in the office, went for?---Approximately 20 minutes.
PN381
Right. And how many people did you speak to on that day about offers of employment?---One.
PN382
Only Mr Brinskele?---Correct.
PN383
And when was the conversation? I think I might be wrong about this, was it in the morning?---I believe so.
PN384
Why do you say I believe so?---Because I’m not absolutely certain of the time.
**** ALAN MARK LIPMAN XXN MR REITANO
PN385
Yes. Are you also not absolutely certain as to whether you gave Mr Brinskele the letters?---No, I’m absolutely certain.
PN386
Yes. And you say that you’re not mistaken about that?---I’m not mistaken about that.
PN387
Over the period of a week either side of 4 December how many offers of employment did you make?---I can’t recall specifically. I honestly, I don’t know.
PN388
Did they all have - well, if you did make any other offers at that time did they all have duplicate letters of appointment?---Yes.
PN389
And are you sure you’re not mistaken what happened with Mr Brinskele with what happened with others?---In what respect?
PN390
In respect of you giving him, as you say, the copies of the letter?---Mr Brinskele was treated exactly the same as every other person I employed on that site. There was an original copy of the letter and there was a copy of the letter of which everybody took their letters away. When they were happy with what they had they gave me back the signed copy.
PN391
And when you say that you are just assuming that it was the Brinskele’s case that you did what you did with others?---I’m not assuming anything.
PN392
Would you let me finish my question?---Sorry.
PN393
But you have no direct recollection of it, do you? You are reconstructing what would have happened because of what you remember happened
with everyone?
---No, I reject that completely. I stand by my statement.
PN394
Sir, I have tried to extend every courtesy to you in not interrupting you and I would ask you to do the same for me?---I apologise.
PN395
Because we’re being written down and - - - ?---I understand, okay.
PN396
My question was you have no direct first hand recollection now of what you did in respect of Mr Brinskele, you are just reconstructing from what you recall you did generally in respect of other people?---I reject that completely.
**** ALAN MARK LIPMAN XXN MR REITANO
PN397
Where do you live?---I live in (address supplied).
PN398
A long way from Riverstone?---It’s a long way, about 50 kilometres.
PN399
Yes. I take it that the reason you say that the distance between the two sites takes about 10 to 15 minutes is because you’ve driven it?---Many times.
PN400
Right. And I think you say also that the distance is 19 kilometres?---Yes.
PN401
That is between the two sites?---Yes.
PN402
Is it freeway or motorway between them?---Largely.
PN403
Have you driven from Mr Brinskele’s house to Riverstone?---No sir.
PN404
Have you walked from Mr Brinskele’s house to Riverstone?---No sir.
PN405
Thank you, sir.
PN406
THE SENIOR DEPUTY PRESIDENT: Any re-examination?
MR CHIN: Yes, just briefly your Honour.
<RE-EXAMINATION BY MR CHIN [12.28PM]
PN408
MR CHIN: Mr Lipman, you were asked a question by my learned friend in relation to the policies of Lomb referred to in the letter of offer annexed to your first affidavit. Do you recall that?---Yes.
PN409
I think it was in relation to paragraph 2.4 of that letter. And you were asked whether you shoed Mr Brinskele those policies and
I think you said you had not?
---Correct.
PN410
Can I ask you this, did Mr Brinskele at any time ask you to see them? Ask you if he could view those policies?---No.
PN411
You were also asked about the issue of Mr Brinskele’s redundancy entitlement. You remember that line of questioning? And about Lomb’s policy in relation to redundancy entitlements? Can I ask you this question. In relation to the laboratory staff currently employed at the Riverstone site, have you made any of those staff positions redundant?---No.
**** ALAN MARK LIPMAN RXN MR CHIN
PN412
What, in your assessment, are the prospects for the continuing operation of that lab?---Well, 100 per cent. We don’t anticipate that there will be any issue in regard to maintaining the operation of the lab.
PN413
You were asked some questions in relation to the letter of offer concerning the location of work and the possibility of having to work, for Mr Brinskele having to work at other locations. Can I ask you this. Has Lomb built any other Ajax Finechem laboratories or constructed any such laboratories other than at the Riverstone site?---No.
PN414
Finally in relation to the three lab employees currently employed by Lomb, I think you were asked and answered that these employees
had been paid redundancy entitlements by Nuplex. Can I ask you in relation to Mr Elliott, you said he commenced employment in September
’07. Did you make an offer to him in ‘06?
---No sir.
PN415
What about Birkandan?---No sir.
PN416
How did they come to be employed?---Mr Elliott approached us in August ’07 asking if we had any positions available in our lab
that he knew we were building and at the time we didn’t, but we did have this ICP that was coming and we thought that Chris
might be quite useful in helping us callibrate the machine. So we made him an offer of employment. Birkandan, we actually approached
Mr Birkandan ourselves thinking now that we have Chris on board and the laboratory was being built we need more staff in there and
we knew Ishmael was overseas and we made approaches to him while he was overseas about whether or not he was interested in working
for us on his return and he indicated yes that was the case. Subsequent he returned and we employed him.
PN417
Thank you, Mr Lipman. No further questions. Might the witness be excused, your Honour?
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lipman.
<THE WITNESS WITHDREW [12.32PM]
PN419
MR CHIN: Your Honour, if it’s convenient may I call Mr Gonzalo Verges.
THE SENIOR DEPUTY PRESIDENT: Sure.
<GONZALO VERGES, AFFIRMED [12.33PM]
<EXAMINATION-IN-CHIEF BY MR CHIN
PN421
MR CHIN: Mr Verges, have you sworn two affidavits for the purpose of these proceedings?---Yes.
PN422
Have you got copies of those affidavits with you?---Yes.
PN423
The first affidavit is dated 5 April 2008. Do you see that?---Yes.
PN424
And the second affidavit is dated 30 April 2008? I think if I can assist, if you look at the second page of the second affidavit under the Affidavit Details?---April 2008.
PN425
Yes.
PN426
THE SENIOR DEPUTY PRESIDENT: You wish to tender those?
MR CHIN: I tender those affidavits, your Honour.
EXHIBIT #NUPLEX8 AFFIDAVIT OF GONZALO VERGES SWORN 05/04/2008
EXHIBIT #NUPLEX9 AFFIDAVIT IN REPLY OF GONZALO VERGES SWORN 30/04/2008
PN428
MR CHIN: Mr Gonzalo, can I show you this document. And a copy for her Honour.
PN429
MR REITANO: Mr Lipman will be asked to come back. I’d better rise now.
PN430
THE SENIOR DEPUTY PRESIDENT: Yes?
PN431
MR REITANO: The document appears to be a document that Mr Lipman doesn’t deal with in his affidavit and I wasn’t aware that it was going to be relied on and I want to cross-examine him about it.
PN432
THE SENIOR DEPUTY PRESIDENT: All right. Have you got his phone number?
PN433
MR REITANO: Had my learned friend shown me the document I would have been able to tell your Honour that earlier.
**** GONZALO VERGES XN MR CHIN
PN434
THE SENIOR DEPUTY PRESIDENT: Ms Vinski, can you phone him please and ask him to return?
PN435
MS VINSKI: Yes, your Honour.
PN436
THE SENIOR DEPUTY PRESIDENT: We can deal with whether we need to call him or not when he gets here, but it would be better if he hadn’t leapt into his vehicle.
PN437
MR CHIN: Yes, your Honour.
PN438
THE SENIOR DEPUTY PRESIDENT: Do you want to have a conversation about - he hasn’t even left, there he is. Good.
PN439
MR CHIN: Your Honour, I can indicate that this letter has been provided to the other side.
PN440
MR REITANO: Look, I don’t want to play silly games, your Honour. The letter was provided to us. We weren’t told it was going to be relied on in the case.
PN441
THE SENIOR DEPUTY PRESIDENT: Yes. Well, that’s something we can deal with. Mr Lipman, would you mind remaining just in case you need to be recalled. At the moment we’ll just deal with Mr Verges’ evidence.
PN442
MR CHIN: Yes, your Honour.
PN443
THE SENIOR DEPUTY PRESIDENT: I understand Mr Reitano doesn’t intend to spend a lot of time on this matter. Do you need any time to consider this letter from the point of view that Mr Verges - - -
PN444
MR REITANO: No, your Honour. There will only be at the most five questions that I need to ask Mr Lipman about it, depending on what this witness says about it.
PN445
THE SENIOR DEPUTY PRESIDENT: All right. Well, we’ll just wait. Just wait a short time, Mr Lipman. If you just wait until this witness is finished just in case there is a matter arising. Would you rather he waited outside?
PN446
MR REITANO: I’m happy for him to wait here.
**** GONZALO VERGES XN MR CHIN
PN447
THE SENIOR DEPUTY PRESIDENT: All right, good. Yes Mr Chin.
PN448
MR CHIN: Thank you, your Honour.
PN449
Mr Verges, the letter I’ve just handed you dated 30 November 1993?---Yes.
PN450
It’s headed letterhead Ajax Chemicals. You see the letter down the bottom, the signature, is that your signature?---Yes it is.
PN451
And it attached two pages, a document setting out under the letterhead Ajax Chemicals headed Standard Terms, Conditions and Benefits of Employment Monthly Staff. Do you see that?---Yes.
PN452
And over the page there is a signature down the bottom. Do you recognise that signature?---Yes, that’s Wolfgang’s signature.
PN453
Yes. Can you tell the Commission what that letter is?---This is a letter given to Wolfgang with regard to the term and condition when we were working in Ajax Chemicals when Ajax Chemical was part of Clyde Industries.
PN454
Can I ask you this. Your position was as QC, quality control and quality assurance manager?---Yes.
PN455
Just wait until I finish my question please, Mr Verges?---I’m sorry.
PN456
And in your statement you say that Mr Brinskele reported to you?---Yes.
PN457
Apart from this letter and from this letter’s date from 1993 did you issue any other letters to Mr Brinskele concerning terms and conditions of employment?---I do not recall.
PN458
And in relation to the terms and conditions attached to the letter, the second page, if I can ask you to look at that. Under the first heading Period of Notice. Do you see that?---Yes.
PN459
Was there any change to that condition or term in respect to Mr Brinskele’s employment since you sent this letter?---No.
PN460
And over the page can I ask you to look at the paragraph under the heading Performance of Duties. Do you see that?---Yes.
**** GONZALO VERGES XN MR CHIN
PN461
Can I ask you the same question in relation to this, was there any change to your knowledge to this term and condition of Mr Brinskele employment after you sent this letter at any time?---I would say yes, that paragraph will be applicable. It’s a general statement, yes.
PN462
I tender the affidavit of evidence. That’s the evidence-in-chief.
PN463
THE SENIOR DEPUTY PRESIDENT: What do you want me to do with this?
PN464
MR CHIN: I tender that letter as well, I’m sorry.
PN465
THE SENIOR DEPUTY PRESIDENT: I’m not sure where it takes matters,
Mr Chin, but no doubt you’ll explain that to me.
MR CHIN: Yes, your Honour.
EXHIBIT #NUPLEX10 LETTER
PN467
THE SENIOR DEPUTY PRESIDENT: Mr Reitano, do you need any time?
MR REITANO: No, your Honour. I don’t to hold anyone up.
<CROSS-EXAMINATION BY MR REITANO [12.40PM]
PN469
MR REITANO: Mr Verges, when did you start working for Nuplex?---For Nuplex?
PN470
Yes?---I can’t remember the exact date, but when Nuplex bought APS, yes I become part of the Nuplex group, yes.
PN471
I meant when did you start working with the series of companies that ultimately ended up being - - - ?---Probably about 18 years ago in Ajax Chemical when they was part of Clyde.
PN472
That’s when you met Mr Brinskele?---Yes.
PN473
And you went through the various companies, I can’t remember?---Correct. There was Ajax Chemicals, then APS and then Nuplex Industries.
PN474
Yes. Was there Clyde as well?---Yes. Ajax Chemical was part of Clyde.
**** GONZALO VERGES XXN MR REITANO
PN475
Part of Clyde, okay. And you finished working at the end of - - - ?---Last year.
PN476
Sorry, at the end of April 2007? Sorry, at the end of March 2007?---I think so.
PN477
That was when you were made redundant?---Yes, correct.
PN478
Yes. What was the title of your position again?---Quality QC and QA manager.
PN479
Right. And Mr Brinskele reported to you?---Yes.
PN480
Yes. Is it fair to say that - I mean, you’ve known each other for a long time?
---Yes.
PN481
And worked together for a long time. Is it fair to say that you left all the hands on operation of the laboratory to him and you dealt with the greater part of the administrative type of work?---Yes.
PN482
So what he did on a day to day basis would be in his hands, as it were?---Correct, yes.
PN483
You’re of course a qualified chemist?---Yes.
PN484
And you had similar experience to him operating a laboratory at one time or another?---Correct, yes.
PN485
You’d been promoted through the ranks?---Yes.
PN486
Did Lomb offer you a job at Riverstone?---No.
PN487
No. At any time were you asked if you were interested in a job at Riverstone?
---Yes I was asked. I went to an interview with Alan and Gerry, the owner that passed away, to tell him point.
PN488
Right. Alan is Mr Lipman?---Alan, Mr Lipman, yes.
PN489
You went for an interview. Were you offered a job?---No. Basically they wanted to knowledge, you know, how the laboratory was running. They wanted to know about myself. So I explained what sort of job I was doing in the operation. I briefly explained how the laboratory was operating. And basically that was it.
**** GONZALO VERGES XXN MR REITANO
PN490
Did you, in effect, tell them about your experience because they didn’t know you from Adam?---Correct, yes.
PN491
So you told them about your experience?---Exactly, yes.
PN492
Through the series of jobs that led you to the position you were in?---Yes. I think in general I did that, yes.
PN493
And you might not have used these words, but you would have said something like I used to do a job like what Wolfgang does now? You might not have said those words, but I used to be a laboratory manager? Would you have said something like that?---Yes. Well, basically I explained my experience working, starting with the pharmaceutical industry, then we went through Ajax Chemicals, the sort of job we did there and I explained that the laboratory was not an accredited laboratory and the sort of job in general that we used to do in the laboratory and to be able to operate that laboratory we need a team of people and I mentioned several people, you know, that would be if we want to move as a team, you know, that people they would be able to do the job. Wolfgang was one of them. Two or three other ones.
PN494
Would you have been able to have done before March when your employment came to an end, would you have been able to do Mr Brinskele’s job?---I think to do the job, I have been off the bench for a number of years so my role has always been in the managerial position. That’s right. None of the company in the last 10 or 12 year they would have need me to work on the bench, it’s just pretty much the decision making and move the laboratory forward in different area they would need me to do.
PN495
But you knew about all the aspects of running the laboratory?---Yes. Yes, yes. I knew all the aspect, yes.
PN496
And you knew what was going on in that laboratory in a general way?---Exactly. That's right, yes.
PN497
Could I just ask you have you got your affidavit there?---Yes.
PN498
Just the bigger one of the two, just paragraph 7 just have a look at that for a moment.
**** GONZALO VERGES XXN MR REITANO
PN499
THE SENIOR DEPUTY PRESIDENT: That’s Nuplex 8?
PN500
MR REITANO: Yes. Just read it to yourself and I’ll ask you a question about it?---Yes.
PN501
How are you able to divide up the percentages there, how do you know
that?---Basically I did it based on the number of people that used to do Ajax work and the people that used to do APS work.
PN502
Yes, but you didn’t on a day to day basis know which people were doing which type of work did you?---In general I knew yes.
PN503
In general?---In general I knew.
PN504
Did you know on a day to day basis what Mr Brinskele was doing?---In general yes, yes.
PN505
But not specifically?---Not specifically no.
PN506
All right did you ever have a conversation with him in which he told you about the percentages of work he was doing or anything like that or was that just not a matter that you needed to talk about?---No, no.
PN507
No, okay but you recall in your second affidavit and if you need to look at it I’ll show it to you, but I don’t think you’ll need to. Remember that there’s a document that you gave to the laboratory staff which I think is called the redundancy notice or something like that?---Yes.
PN508
That’s a document that has some figures on it calculations and things about what people would get if they were made redundant?---Yes.
PN509
Did you get one of those?---No.
PN510
You didn’t get one?---No.
PN511
So you gave them out to everyone but didn’t receive one yourself?---No, didn’t receive one myself, no.
PN512
Did you give them out to the people who Mr Brinskele worked for?---I give one to each person working in the laboratory.
**** GONZALO VERGES XXN MR REITANO
PN513
In the laboratory yes, and take for example, you know that everyone in the laboratory other than Mr Brinskele received redundancy pay when their employment came to an end, correct?---Correct yes.
PN514
Do you know that the figures of redundancy that they received at the end of their employment were much the same as they were told about in the redundancy notice?---I never checked that, so I just print the report and I give it to each individual.
PN515
Right and did anyone tell you at the time that they were the – that the documents you were given were voluntary redundancy notices or did they just say they were redundancy notices?---They didn’t mention – I cannot recall that they mention anything like that to me.
PN516
Did they just say give the documents to the people who report to you or the laboratory staff or something like that? What did they tell you about the document or don’t you remember?---The document – what I remember the document was given to them because there was not very much information about their entitlements and at that particular moment there were two people that they wanted to get redundancy and so the decision was made that to give the entitlements to each individual, and that’s what I did.
PN517
All right finally can I ask you in paragraph 1 of your second affidavit again you may not need to read it you probably remember?---Okay.
PN518
You say that you knew that Mr Brinskele back in 1997 used to get the train I think you say this, he travelled in Auburn by taking a train to Granville station from his home and then walking to the Auburn site?---Yes.
PN519
That’s because he told you that?---I think everybody knew that he was coming by public transport, you know this is – he didn’t I don’t recall him specifically say you know, no I catch the train and drop there. But I knew that he was one of those people walking to work.
PN520
You knew that between 1997 roughly in 2007 he used to work to walk every day?---Yes.
PN521
But in 1997 you say that he used to I think go to Granville station?---Granville station I mean how do I know that?
**** GONZALO VERGES XXN MR REITANO
PN522
Yes?---I cannot say if it is Granville station or Auburn station which one, somehow, you know I don’t know, I just guess.
PN523
Did you know back then that the was an avid runner? That he liked to run?---Not that he said it, but I knew that he liked to walk, yes.
PN524
Granville is a far way from Auburn?---Yes.
PN525
But did you know that the reason he chose to go to Granville was because it gave him the walk and the like?---No not really.
PN526
You didn’t know that?---No, I didn’t know that.
PN527
Did you know how long it took him to get to work or to get home from
Work?---Not really no.
PN528
You didn’t have that conversation?---I didn’t have that conversation no.
PN529
Thank you very much.
THE SENIOR DEPUTY PRESIDENT: Thank you, you’re excused you can come and go as you please.
<THE WITNESS WITHDREW [12.50PM]
PN531
THE SENIOR DEPUTY PRESIDENT: Mr Reitano is there anything you want to put to Mr Lipman?
PN532
MR REITANO: No.
PN533
THE SENIOR DEPUTY PRESIDENT: So Mr Lipman can leave?
PN534
MR REITANO: Yes he can.
PN535
THE SENIOR DEPUTY PRESIDENT: You don’t want to have a look at anything, is there any other document arising in Ms Hardie’s evidence that you might, that Mr Reitano might not have seen before I release Mr Lipman?
PN536
MR CHIN: No, your Honour.
PN537
THE SENIOR DEPUTY PRESIDENT: Right Mr Lipman go while the going’s good. Ms Hardie?
MR CHIN: Yes, I call Ms Hardie.
<SARAH ANNE HARDIE, AFFIRMED [12.51PM]
<EXAMINATION-IN-CHIEF BY MR CHIN [12.52PM]
PN539
MR CHIN: Your name is Sarah Hardie?---Yes.
PN540
You’ve sworn two affidavits in these proceedings?---Yes.
PN541
Do you have those affidavits with you?---Yes.
PN542
The first is dated 3 April 2008?---Yes.
PN543
The second is dated 1 May 2008?---Yes.
I tender those two affidavits your Honour.
EXHIBIT #NUPLEX11 AFFIDAVIT OF SARAH HARDIE DATED 03/04/2008
EXHIBIT #NUPLEX 12 AFFIDAVIT OF SARAH HARDIE DATED 01/05/2008
PN545
MR CHIN: Thank you, your Honour that’s the evidence-in-chief.
THE SENIOR DEPUTY PRESIDENT: Mr Reitano?
<CROSS-EXAMINATION BY MR REITANO [12.52PM]
PN547
MR REITANO: Ms Hardie in respect of your second affidavit I’m loading up a couple of questions, I might just get that out of the way quickly. In fact in respect of both of them there are only a couple of questions, but those ones are fresh in my mind. In respect of that affidavit I received a draft yesterday and the copy that I received this morning has handwritten in things like, or Mr Verges, or Mr Bennett at various points?---Yes.
PN548
Is that because and I’m not being critical of this because if you asked me what happened yesterday I wouldn’t be able to help you, is that because you don’t remember precisely what occurred in respect of those various incidents as to who did what or who said what?---No.
PN549
Is that you agreeing with my suggestion that you don’t remember those
things?---This was prepared yesterday I had discussions with Vesna about it and then I had to fly to Sydney last night so I - - -
PN550
I don’t want to intrude into what things you may have discussed?---Right.
**** SARAH ANNE HARDIE XXN MR REITANO
PN551
What I’m interested in is the reason why you are saying it’s either, now saying it’s either you or Mr Verges or you or Mr Bennett because you have no direct memory as to who did those things?---Yes.
PN552
Right and is it the case for example, and I’m just picking one of them, I think you talk about the redundancy notice that it may have been you or Mr Verges providing it to someone, is it the case that now, you can’t remember whether you did it or whether he told you he did it?---Providing the redundancy notice as in the calculation or the information section?
PN553
Let’s deal with the information section?---Yes.
PN554
You can’t remember whether you did it or he did it?---I recall a meeting where we provided the information pack to the people that were in the QC department.
PN555
If you go to paragraph 5 of your affidavit?---Yes.
PN556
You say there’s a copy of the information pack which was given to Mr Brinskele by either – and then I can’t read what the word after "either" is but it doesn’t matter - - -
PN557
THE SENIOR DEPUTY PRESIDENT: It’s an initial.
PN558
MR REITANO: I see, "either Stewart Bennett, or Verges or myself" is that because you don’t remember handing it to Mr Brinskele?---I don’t directly remember handing it to.
PN559
Right and nor do you remember anyone else, seeing anyone else handing it to him, correct?---I couldn’t recall who specifically handed to him.
PN560
What you are doing is reconstructing what you think happened back then?---I recall having meetings.
PN561
Yes I understand that but you don’t recall either yourself or anyone else either doing it yourself, or seeing someone else do it, give Mr Brinskele the information pack, do you?---I can’t recall who specifically handed out the information packs to each person at the meeting.
PN562
What I want to suggest to you is that Mr Brinskele says that he didn’t get the information, or some of the pages of what you
describe as the information
pack?---Right.
**** SARAH ANNE HARDIE XXN MR REITANO
PN563
Now I want to do it in two stages, firstly I want to suggest that you didn’t give it to him, do you agree with that or disagree with it or do you not remember?---I couldn’t recall who specifically gave it to him.
PN564
THE SENIOR DEPUTY PRESIDENT: That wasn’t what you were asked Ms Hardie. Ms Hardie you appear to be nervous about this process, it’s not a trick, it’s just questions and answers, and Mr Chin is here to ask you further questions should there be any doubt about your position. Mr Reitano is simply asking you whether you have any recollection of handing the papers to Mr Brinskele yourself?---No.
PN565
That was the question and that was the answer. Now just listen to the question and give the answer without worrying about what it means, right.
PN566
MR REITANO: Similarly I want to suggest that you don’t have any actual recollection of seeing anyone else give the documents to him, correct?---Correct.
PN567
Now the redundancy entitlement that is described on the redundancy notice that Mr Brinskele has annexed to his affidavit, do you recall
what I’m talking
about?---That would be the schedule?
PN568
Yes?---Yes.
PN569
That document sets out Mr Brinskele’s entitlement upon redundancy
correct?---Yes.
PN570
That is irrespective whether it would have been as a result of this voluntary redundancy process, or whether had he been made redundant on 31 March 2007, what he would have got then, is that correct?---Yes, except obviously it would have been an extra six months.
PN571
Sorry, yes?---Yes.
PN572
Whatever the pro rata payment adjusted?---Yes.
PN573
That’s because the document calculates in accordance with Mr Brinskele’s terms and conditions of employment what Nuplex was prepared to pay him as redundancy?---Yes.
**** SARAH ANNE HARDIE XXN MR REITANO
PN574
Did you at any time provide to Mr Lipman a copy of the Nuplex Seven Hills enterprise agreement 2005?---I can’t recall.
PN575
Did you at any time provide Mr Lipman with a document like the redundancy notice, the one that sets out all the calculations?---For Mr Brinskele?
PN576
For Mr Brinskele again?---Not specifically he would have been provided with a spreadsheet schedule with everyone’s current entitlements.
PN577
But that didn’t tell you, I can show you the document if you like, but that didn’t tell you what the redundancy entitlement was I don’t think?---No.
PN578
Did you at any time tell Mr Lipman what the redundancy package that Mr Brinskele would have been entitled to in terms of not amounts of money, but weeks for years of service?---I don’t recall.
PN579
Then I think finally – did you work at the site at Seven Hills?---I was there often, head office wasn’t there.
PN580
But you came and went?---Yes.
PN581
Was it the case that over a period of either months or years, but I think it’s months, various parts of the business were closed down and stopped operating or closed down and – I was going to say flogged – but sold to someone and operated away from the Seven Hills site both before and after March 2007?---March 2007, yes.
PN582
I choose March 2007 because that’s when this part of the business Finechem went away?---Yes.
PN583
Finechem left the site as of give or take a day or two, 31 March 2007?---Right.
PN584
Is that right?---Yes.
PN585
For example, and I just want to make sure I’ve understood you for example, I think Nuplex Organics closed on about the same day?---I couldn’t recall specifically.
PN586
If we didn’t say Organics perhaps some other aspects of the business closed down at around the same time?---Before and after.
**** SARAH ANNE HARDIE XXN MR REITANO
PN587
The Nuplex Seven Hills Enterprise agreement 2005 applied to all of those aspects of the business?---That closed down?
PN588
All of the aspects of the business that were at the site at Seven Hills, because the site ultimately went didn’t it?---Yes, so the production of it, yes.
PN589
That agreement applied to everyone there?---That was in production yes.
PN590
I’m not sure why you’re eager to tell me that it was in production, but I’m not, in terms of the workforce at the site perhaps other than managerial employees the agreement applied?---Apart from people on salary.
PN591
I understand why you’re saying that now, thank you?---Yes.
PN592
Thank you very much.
PN593
THE SENIOR DEPUTY PRESIDENT: Mr Reitano when you were asking this witness about the schedule, the schedule the only schedule that is an attachment to either her affidavits is SH1, is it not?
PN594
MR REITANO: That’s right.
PN595
THE SENIOR DEPUTY PRESIDENT: So when you were asking her about the amounts of money that would be paid to the various employees on acceptance of a redundancy package pro rata, you were only referring to their sick leave, annual leave, and long service leave entitlements.
PN596
MR REITANO: No, your Honour and I’ll fix it, I apologise it’s my fault for trying to do things too quickly.
PN597
THE SENIOR DEPUTY PRESIDENT: Yes, because you lost me.
PN598
MR REITANO: I’m sorry.
PN599
When we referred to the redundancy entitlements that people were entitled to I was asking you some questions and I think I referred to a schedule, it’s the notice or the document that you’ve seen annexed in the form of Mr Brinskele’s affidavit that I think says on the top of it "Nuplex Industries Australia Pty Ltd Redundancy Calculation". I’ll show you the first page?---Yes.
**** SARAH ANNE HARDIE XXN MR REITANO
PN600
Can you see it?---Yes.
PN601
When I was asking you questions about the notices that people got?---Yes.
PN602
You understood those questions were about that notice?---I’m confused I think you’ll have to refer to what the questions were again.
PN603
I’ll try and take it in half a dozen steps. I asked you a series of questions about notices that people got that you described as I think I asked you questions about voluntary redundancy and what people would get on voluntary redundancy that notice or that kind of notice set out what they would get on voluntary redundancy?---Yes.
PN604
I stupidly and wrongly described it at some stage as a schedule and I didn’t mean to do that. The amount that people were told
they would be paid on voluntary redundancy contained in that notice, was putting aside the six months or so pro rata the same amount
that they would have been paid in March 2007 when they were made redundant in accordance with Nuplex redundancy deal,
correct?---Yes.
PN605
So what Mr Brinskele got by way of his notice in roughly October or thereabouts, 2006 in this document subject to an adjustment for the pro rata six months would be the same as what he would have got had he been made redundant in March 2007?---Yes.
PN606
The other document that you were referring to that I said didn’t include the redundancy entitlements was the document that’s
attached to your
affidavit?---Right.
PN607
Now as far as you’re concerned you never gave to Mr Lipman a copy of the Nuplex Industries Redundancy Calculation document correct?---That one you’re holding up?
PN608
Yes?---I don’t recall.
PN609
Certainly did you say – do you say you do not recall giving him any of those for anyone, or only the one I’m handing up for Mr Brinskele?---I don’t recall giving him any of those.
**** SARAH ANNE HARDIE XXN MR REITANO
PN610
What you did give to Mr Lipman was the document that’s annexed to your affidavit that sets out various entitlements by way of annual leave, sick leave, et cetera?---For each person yes.
PN611
Would your Honour allow me to ask one other matter?
PN612
THE SENIOR DEPUTY PRESIDENT: Sure.
PN613
MR REITANO: I should formally suggest to you that this agreement applied to everyone at the Seven Hills site, do you agree with that or disagree with that?---I don’t agree that it applied to everyone at the Seven Hills site.
PN614
Thank you.
PN615
THE SENIOR DEPUTY PRESIDENT: Is that it?
PN616
MR REITANO: Yes.
PN617
THE SENIOR DEPUTY PRESIDENT: The amounts that you did pay to Mr Brinskele on termination of his employment were those amounts subject to the pro rata accumulation of other benefits set out in SH1, which is the schedule of long service leave, sick leave and annual leave entitlements?---Sorry, that is the amount that was paid to him when he - - -
PN618
Yes with the additional time of employment accrual?---Yes.
Okay good, Mr Chin?
<RE-EXAMINATION BY MR CHIN [1.06PM]
PN620
MR CHIN: Ms Hardie paragraph 8 of your second affidavit about which you were asked questions about the redundancy notice you recall that?---The second affidavit yes.
PN621
Yes paragraph 8 about the redundancy notice?---Yes.
PN622
You say in paragraph 8 that it was given out as part of the voluntary redundancy process?---Yes.
PN623
Can you describe the voluntary redundancy process that was undertaken?---In that we met, we had information sessions with people.
**** SARAH ANNE HARDIE RXN MR CHIN
PN624
Yes?---And we gave them an opportunity to put in for voluntary redundancy and then from there a decision was made if people would have been selected and put their hand up or not and some were selected and some weren’t.
PN625
How many information sessions did you have?---I believe a couple in this particular area.
PN626
When you say particular area, what area do you mean?---QC.
PN627
The QC laboratory?---Yes.
PN628
That’s the laboratory in which Mr Brinskele was employed?---Yes.
PN629
The meeting in paragraph 7 that you refer to in that affidavit?---Yes.
PN630
The one attended by Mr Bennett, Mr Verges and yourself?---Yes.
PN631
With which employees was that meeting held?---With the QC lab employees.
PN632
Did you have any other meetings with those employees?---We would have other meetings for the employees who weren’t at that meeting.
PN633
Did you get any inquiries from any QC lab employees complaining that they had not received the redundancy package?---No.
PN634
By that I mean the voluntary redundancy package?---Yes.
PN635
That you refer to in paragraph 5?---No.
PN636
Yes, no further questions.
PN637
THE SENIOR DEPUTY PRESIDENT: Thank you, you’re excused Ms Hardie, the ordeal is over.
PN638
MR REITANO: I was nice.
THE SENIOR DEPUTY PRESIDENT: It’s still an ordeal to give evidence whether anybody is nice or not, I’ve only ever done it once and I could hardly remember my own name, it is a very stressful process. Thank you.
**** SARAH ANNE HARDIE RXN MR CHIN
<THE WITNESS WITHDREW [1.08PM]
PN640
THE SENIOR DEPUTY PRESIDENT: So Mr Reitano that’s your case Mr Chin?
PN641
MR CHIN: Yes, your Honour.
PN642
THE SENIOR DEPUTY PRESIDENT: Mr Reitano your case is the respondent only?
PN643
MR REITANO: Yes.
PN644
THE SENIOR DEPUTY PRESIDENT: How long do you expect that to take?
PN645
MR REITANO: I don’t know it’s in my learned friend hands. I might have two questions, maybe three.
PN646
MR CHIN: Your Honour I hesitate to make estimates that I can’t fulfil but I would estimate half an hour to an hour.
PN647
THE SENIOR DEPUTY PRESIDENT: All right well I think it would be convenient to call the applicant and put the two – the respondent, it’s the wrong way around today, and put the two or three questions and then just come back for cross-examination after lunch.
PN648
MR CHIN: I have no problem with that.
PN649
THE SENIOR DEPUTY PRESIDENT: We’ve had some problems, which is one of the reasons I was checking between 11and 11.30 I’m going to have to get to check the affidavit of Mr Brinskele the attachments are missing from my copy.
PN650
MR REITANO: If you don’t have those, we can do that your Honour.
PN651
THE SENIOR DEPUTY PRESIDENT: Good, I thought I’d lost them. I’ve been searching the registry and my chambers with a guilty conscience.
PN652
MR REITANO: It just occurred to me why your Honour wouldn’t have followed some of Ms Hardie’s evidence because your Honour wouldn’t have it.
PN653
THE SENIOR DEPUTY PRESIDENT: Okay. Do you want to call Mr Brinskele?
MR REITANO: I call Wolfgang Brinskele.
<WOLFGANG BRINSKELE, SWORN [1.11AM]
<EXAMINATION BY MR REITANO
PN655
MR REITANO: Could I before I start hand Mr Brinskele a copy of his affidavit in case he needs to refer to it?
PN656
THE SENIOR DEPUTY PRESIDENT: Yes.
PN657
MR REITANO: Is your full name Wolfgang Brinskele?---That’s correct.
PN658
Is your address (address supplied)?---Yes.
PN659
You are currently employed as a quality control technician?---Yes, that’s correct.
PN660
With BSF Chemicals at Seven Hills?---Yes, that is correct.
PN661
You’ve been employed there for how long?---I’ve been there for just over a year. Actually I think I started, actually it probably would have been a year, I started at the end of April.
PN662
April 2007?---April 2007, yes.
PN663
Could I just ask you some questions arising from some documents I think you were shown this morning, do you remember seeing a copy of Ms Hardie’s affidavit with some documents attached to it?---I saw I remember seeing one of the forms, the one with the - - -
PN664
Perhaps I can show you the attachments and then I can ask you.
PN665
THE SENIOR DEPUTY PRESIDENT: You got that now?
PN666
MR REITANO: I’ve opened it up at annexure (a) which has got a 4 in the top right-hand corner, have you seen that before ?---Yes, I probably would have seen that. They probably would have put that on our notice board.
PN667
Right can I ask you to turn over to annexure (b) which is 5 in the top right-hand corner, have you seen that document before?---No, I can’t recall seeing this document no.
PN668
Right and if you turn over to page 6 have you seen that before?---No, I can’t recall seeing that no.
**** WOLFGANG BRINSKELE XN MR REITANO
PN669
And 7?---Yes I have seen that before that. That was given to me by Gonzalo.
PN670
When it was given to you – sorry do you recall when Gonzalo gave it to
you?---When they were talking about people being made redundant they asked for you know, to see who, expressions of interest they
call it.
PN671
Do you recall when that was?---No, it would have been at the – near the end of the year, maybe October something like that.
PN672
Which year?---It would have been probably 2006.
PN673
What about the very final page, have you seen that before?---Yes, that was attached with the - - -
PN674
The previous page?---This is why it was attached like this.
PN675
I think one of the pages I can’t remember which one, asks you yes or no are you interested in redundancy?---Yes, that is correct yes.
PN676
At the time you received the document were you asked to fill that out and return it?---Yes, it was called, not with the – they had people in mind, it was called not to be discriminated against, so they had people already picked but to make it as so it was fair, we all got one of these forms.
PN677
Mr Brinskele can you just please deal with my question? My question was at the time you received the document were you asked to complete it and return it to someone?---Yes, that is correct.
PN678
Right did you do that?---Yes I did.
PN679
How did you complete the document?---I put the no.
PN680
Right and did you sign it?---Yes, I signed it.
PN681
Did you give it back to Mr Verges?---I gave it back to Mr Verges yes.
PN682
Thank you very much. Those are my questions.
PN683
THE SENIOR DEPUTY PRESIDENT: Thank you, quarter past two. We’re going to break for lunch Mr Brinskele and after lunch Mr Chin will ask you some questions?---Am I free to go then, I’m on afternoon shift.
**** WOLFGANG BRINSKELE XN MR REITANO
PN684
Well that’s a matter for Mr Reitano?---Okay.
PN685
As far as I’m concerned you can do whatever he directs you?---Okay it’s just that I didn’t want to be rude.
<LUNCHEON ADJOURNMENT [1.15PM]
<RESUMED [2.26PM]
THE SENIOR DEPUTY PRESIDENT: Yes.
<CROSS-EXAMINATION BY MR CHIN [2.26PM]
PN687
MR CHIN: Mr Brinskele when you were employed by Nuplex your title was laboratory senior is that correct?---That is correct.
PN688
You prepared a statement for these proceedings and I think it’s dated April 2008. In preparing that statement you have read the affidavit material filed by Nuplex in this case haven’t you?---I have.
PN689
And in particular you’ve read the affidavits filed by Mr Verges?---Yes.
PN690
Except in a small part of your statement to which I’ll come later, you don’t really address Mr Verges’ affidavits in detail, but I want to ask you some questions about Mr Veges affidavit if that’s convenient. The statement of Mr Verges that he was responsible for auditing quality control issues outside of the Ajax Finechem business that is across the other business divisions of Nuplex at the Seven Hills site, you agree with that don’t you?---I’m not privy to Gonzalo’s complete area of work. I only what we do inside the laboratory. What he does apart from the place I work I’m not 100 per cent certain.
PN691
I see were you aware that he did have responsibilities outside of the Ajax Finechem lab in which you worked?---No not that I’m aware – he – this was later on near the end he became known as what is known as an auditor. He was obliged to go to different parts of the Nuplex area and do audits, internal audits we call them.
PN692
That is in respect of the other business units situated on the north side?---On the Nuplex site yes.
PN693
He had those responsibilities before November 2006, presumably?---I couldn’t tell you yes or no.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN694
Well you were employed at Nuplex he had those responsibilities for a period of time?---He had those responsibilities, yes, he had those responsibilities yes, but actually when he had them you know I’m not 100 per cent certain.
PN695
But you otherwise agree with the proposition that your work was confined to the control quality lab within Ajax Finechem?---Yes, sorry to interrupt, yes my work was completely different to Gonzalo’s. Gonzalo’s was more – he was – what you call the managerial side of things. I did more the hands on they call it.
PN696
I see in respect to this auditing role with the other business units there were about – do you recall how many other business
units there were a the Seven Hills
site?---We had you know we had about five or six what we call different areas. Like we had organics, we had epoxy, we had esters
and that, it was sort of split up yes.
PN697
None of which you were involved with?---Yes I was, not the auditing part, but the actual analytical work that was one of my responsibilities.
PN698
Yes testing chemicals?---Yes, mine was nothing to do - - -
PN699
Provided from those business units?---Yes.
PN700
I see now I think in your statement apart from saying that Gonzalo Verges had a lot of paper work to do?---Yes.
PN701
And that you disliked paper work?---Immensely.
PN702
You don’t have any particular disagreement with his version of his duties and your duties in his affidavit do you?---The only one I have is that he actually tried – he assumed my work was more Ajax, which it can’t be like that, it can’t be like that.
PN703
So your only disagreement was, I think it as the assertion, the statement by Mr Verges that I think you spent about 80 per cent of
your time with Ajax
work?---You can’t you can’t, if I did that I wouldn’t be doing my job as a laboratory senior, it just doesn’t
work like that.
PN704
But apart from that assertion you don’t have any particular disagreement with what Mr Verges said?---No, not he was, actually he would make a very good reference for me.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN705
Okay and do you dispute the proposition that you spent most of your time, if not 80 per cent of your time at Ajax Finechem work?---No, I dispute that yes.
PN706
You say it was the minority of the time do you?---No, no, it all depends, it’s not the sort of you know, sometimes one plant could be busier than another, therefore you have to spend more time. You could have problems with a plant you have to fix that. That’s part of my responsibilities you just can’t go and say oh no this is not my job, I’m not part of this, you can’t do that. I’m a workaholic.
PN707
So what you’re saying is that the proportion of the time you spent on Ajax Finechem work was varied?---Was varied that’s right, when it was needed – we had other – we had actually people on the bench who looked after things like that. I came in when they had problems.
PN708
Right out of all the employees in the quality control, of QC laboratory you were the only person to report directly to Mr Verges weren’t you?---Theoretically we could all report to – but initially they should report to me first and then I would pass on if there was a grievance or something, I would then pass it on.
PN709
The hierarchy was that you supervised about eight laboratory analysts?---I supervised – well no, well yes supervised, I wasn’t actually called a supervisor I was called, what you call, you know the laboratory senior.
PN710
But you allocated testing work to them?---Well most people are pretty well motivated, I just made sure that things went smoothly.
PN711
But formally the hierarchy was they reported to you didn’t they?---Yes if they – well they should have yes.
PN712
Then you reported to Mr Verges?---I reported to Gonazalo.
PN713
So you accept that you were the most senior person in the QC laboratory?---I was senior but I think Chris Elliott, he’d only been, he was just as senior as I was and when it came to certain things he was much better than I was.
PN714
But he formally at least, reported to you didn’t he?---It was sort of – you see we were both lab seniors, so it was you know it was sort of a you know, I can’t really differentiate between, we were both – he was a lab senior just like I was.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN715
Well Mr Gonzalo said that you were the only person that reported to him directly in his statement and you said you agreed with that statement?---Yes, but there was an understanding between Chris and myself that you know that even though I was a laboratory senior that you know I would never sort of you know use my authority on – we had this mutual - - -
PN716
An informal understanding?---Yes we did.
PN717
But you had that authority nonetheless?---I – gee I don’t think I had that sort of authority no.
PN718
Was Mr Elliott’s formal title laboratory senior?---Yes his title was the same as mine.
PN719
You’re saying that Mr Verges was incorrect in saying you were the only person reporting to him?---That would have been incorrect yes. There was actually another person too, there was Marie Michaels she was also a laboratory senior, but she left a little while before we actually closed down.
PN720
Are you sure you’ve read Mr Verges statement carefully?---I would have read it, you know when you read something like that you probably don’t you know you sort of just look at it you don’t memorise certain bits.
PN721
You just looked at his statement is that correct?---I looked at it and read it and that’s it, I had about four of them to read.
PN722
Yes your main work nonetheless was allocating and supervising the QC lab testing and I think in your statement you agree with the
position description which Mr Verges attached to his statement do you recall that?---The description of
my - - -
PN723
The position as laboratory senior?---You would have to read that out to me and I would verify it for you.
PN724
If you want a moment Mr Brinskele I will provide you with a copy?---Okay.
PN725
Just take a moment to refresh your memory if you could?---Yes, that’s a - - -
PN726
You recall seeing that?---Yes, I recall seeing that yes.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN727
Your evidence is that you agree that your duties as lab senior as those set out there?---They would have been – how old is this job description? Is this a current one or is this - - -
PN728
Was that new to you when you saw it when you read Mr Verges’ statement?---No, no I think I’ve only ever seen one but you know things in laboratories can change from one year to next week.
PN729
But you read that statement in preparing yours?---Yes.
PN730
You read that document?---Yes.
PN731
You agreed that that set out your duties?---That would have set out a lot of my duties, yes.
PN732
But not all?---It may not be all there could be other things here now that I could be doing, yes.
PN733
Yes and so you agree that you verified the QC testing results that were obtained by the other analysts in the lab?---Just to be – everything in the laboratory that was done by other people, I also knew how to do that that was part of my thing so.
PN734
Part of your job was to verify the testing results obtained by them?---That means I would have to do, and know exactly every person’s job and actually be able to do it myself. So that is the - - -
PN735
I see can you confine yourself to my question, my question was that your job was to verify the results obtained by other analysts?---Yes that was – well that wasn’t just my job it was one of – I could pass it on to another person to verify the same thing.
PN736
You could delegate that task to other people?---Yes.
PN737
Mr Elliott would have been one of the people you could delegate to?---Mr Elliott I would have talked with him about it because he knew a lot more about it and then we would have taken it from there whether he would do it, I would do it or we would give to somebody else.
PN738
You would maintain the records in relation to the testing that was performed in the lab?---The records, you mean the – no, no we would hand these over to Gonzalo. That’s not the sort of thing – we just did the work and then everything else paper work wise was passed on to Gonzalo.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN739
Well can I ask you to look at item 3.
PN740
MR REITANO: I object. I’ve tried to be a little bit restrained, but I think although the witness is tending to go on, I think he should be entitled as a matter of courtesy to finish his answer before the next question is asked.
PN741
THE SENIOR DEPUTY PRESIDENT: I wasn’t aware that he hadn’t. Yes, Mr Chin if he hadn’t he should be allowed to finish. Had you finished your answer?---Yes, I had finished.
PN742
He’d finished.
PN743
MR CHIN: Can you look at item 3 in the key responsibilities column of your job description?---Verifies all routine quality control testing and maintains records thereof.
PN744
Yes?---No, I didn’t do that.
PN745
I see?---It was – that would have been one of the things I wouldn’t have done.
PN746
I see so in your statement in paragraph 35 when you say you agreed that your duties as those set out in this annexure, that’s not quite correct is that right?---Yes, that would be correct. I would only do it if it was essential, otherwise I would then transfer it to another person.
PN747
So you would do it?---No, only I would – this is – it’s a routine quality control testing and maintains records thereof. No, that would – it’s a broad statement what actually – that actually means, see I could go on, ensure standardisation calibration – I do that and that could then cover number 3 which means I have to record those results, yes. I standardise solutions and I recorded those results.
PN748
Yes?---But when you’re talking about verify all routine quality, no, no I – not one person cannot do all that. We have a variety of instruments and we have different people like the ICP. I couldn’t possibly verify whether it was - - -
PN749
If I could just ask you to just pause there, if you could focus on my questions Mr Brinskele we’ll get through this a lot quicker?---Okay.
PN750
If I can just ask you to focus on the proposition that I’m putting that is that in relation to verifying quality control testing, part of your job was to maintain the records of those testing, of that testing being performed, correct?---No, the records, part of my job yes it was part of my job.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN751
Yes thank you. Part of your job also was to prepare and implement training programs for the other analysts in the lab, correct?---No, that would have been more – that would have been you can’t just give a person tell him this is what you’re going to do. You talk with Gonzalo, what their capabilities are and what their limitations are so you’ve got to be careful how you do this. We talk with Gonzalo and we give them certain objectives and that’s how we do it, then we see if we can carry them through.
PN752
But your responsibility was to implement those training programs, to train up new employees, lab analysts that came on board?---To teach them how to work in the laboratory, yes.
PN753
That was your job?---That was part of my job yes.
PN754
You were also responsible for ensuring the safety of the QC laboratory personnel?---That is my job but that is also everybody else’s job, that’s not a one person job that.
PN755
You signed and issued certificates of analysis non NATA certificates of analysis that is didn’t you?---Everyone in the laboratory was obliged to do that.
PN756
They didn’t sign off on the certificates though did they?---Yes they did, we had this - - -
PN757
Mr Verges says that - - -
PN758
MR REITANO: I object we had this and then he’s interrupted with the next question he was trying to answer the question.
PN759
THE SENIOR DEPUTY PRESIDENT: Yes, he was Mr Chin.
PN760
MR CHIN: I’m sorry your Honour. Please finish?---We have a computer system all the cfa’s go on that and every analyst - - -
PN761
THE SENIOR DEPUTY PRESIDENT: What’s a cfa?---A certificate of analysis.
PN762
Yes?---And what they do is we put them into the computer and then we check the specification and the results next to it and it’s got Gonzalo’s signature and the bottom and all we do once we’re happy with it we just release it, there’s no signing it ‘s a sort of a computer issued cfa with Gonazalo Verges’ signature on the bottom.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN763
MR CHIN: I see and you would issue those certificates?---No, I wouldn’t issue those certificates. Every analyst had to put their own certificates in that they worked on and then another person, the same analyst cannot release the cfa on the material they test. They could then call another analyst and then they would release that certificate of analysis.
PN764
You did that, you released the certificate of analysis?---I did that the same as every other person in that laboratory.
PN765
Mr Verges was the only person to issue NATA approved certificates of analysis, correct?---Yes.
PN766
NATA accreditation was an accreditation scheme whereby the certificates a laboratory issued if it complied with certain testing proficiencies and standards could be issued with a NATA accreditation, that’s correct?---A NATA accreditation is very hard to get, it’s a – it’s something that people in the pharmaceutical industry and other related sort of recognise, if they see a NATA certified laboratory they mean it’s a laboratory that the NATA has checked over and made sure that all the procedures and all the testing is done to certain specifications.
PN767
The certification had to be signed off by a NATA accredited person?---That’s right that’s the only person that’s allowed to.
PN768
You weren’t one of those people?---No.
PN769
Mr Verges was?---He was the only one, yes.
PN770
You agree that since 2002 your laboratory didn’t issue NATA certificates?---I have no idea. I never signed them so I have no idea.
PN771
So you don’t disagree with that proposition?---No I don’t disagree.
PN772
THE SENIOR DEPUTY PRESIDENT: You’ve got no idea really. He doesn’t know.
PN773
MR CHIN: Yes, your Honour.
PN774
When you approved certificates of analysis that involved you deciding whether to approve or reject a particular chemical sample that had been tested correct?---I could all I could do was verify the analyst results and then Gonzalo we would then give the actual results to Gonazalo and he would proceed with the next stage, which is the paper work as to whether material should be rejected, whether material should be reworked and all that. That was nothing to do with me.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN775
Well you said you’ve read Mr Verges’ statement?---Yes.
PN776
Mr Verges says that when he was away either on annual leave or attending to his other duties at the site you would approve non NATA
certificates of
analysis?---Everyone else did too.
PN777
In doing so you didn’t do that by reference to him did you?---His name was on the cfa’s.
PN778
Yes but you effectively approved those certificates, because he was absent, correct?---If he was absent, if I was absent there were seven other people who could do exactly the same thing.
PN779
Well just confine yourself to what I’m asking about what you were doing?---Yes I could sign, I could release cfa’s with Gonzalo’s signature on them.
PN780
But without Gonzalo having seen them?---Yes, that’s correct.
PN781
That’s correct so you had the discretion to decide whether or not to approve the chemical samples that were the subject of a test and the certificate?---You’re saying it’s only one person.
PN782
No, no, look just?---Yes, I can do that, yes.
PN783
Thank you and occasionally you would review the testing techniques that were in place at the lab?---Yes, I would do that, the same as a few other analysts. We have some you know that was part of one of our things, to try and find to make things easier for us. We were burdened with a huge amount of work.
PN784
Yes and part of your job was also to ensure that the testing was properly documented?---No, Gonzalo did the – when you say properly documented you mean the actual results were written in?
PN785
Yes?---Yes, that was something I did, yes.
PN786
There were about eight other analysts in the lab, correct?---Yes.
PN787
Mr Brinskele if I can ask you to look at - - -I don’t have anything except for this.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN788
Do you have your statement with you?---No, I don’t have my statement.
PN789
THE SENIOR DEPUTY PRESIDENT: He can have mine.
PN790
MR REITANO: We can provide one.
PN791
MR CHIN: I’m grateful to my learned friend.
PN792
In paragraph 33 of your statement can I take you to that? Do you have that with you?---33 yes.
PN793
You see there you refer to a paragraph of Mr Lipman’s affidavit and then the third sentence halfway down the paragraph you say:
PN794
In this regard I refer to paragraph 66 of the Lipman affidavit.
PN795
And then you say:
PN796
Of the duties set out in this paragraph all except the approving and issuing of non NATA certificates of analysis were performed by Gonzalo and not by me at Nuplex.
PN797
Do you see that?---All except the – yes I see that.
PN798
In paragraph 66 of Mr Lipman’s affidavit one of the things he says you did – sorry one of the things he said you would have done, had you been employed by Long is making decisions about tested materials such as whether to approve or reject the sample tested?---Okay.
PN799
Now do you still say that you didn’t do that and only Mr Gonzalo did that?---No, Gonzalo did the paper work, the actual work we did the actual physical work. We then found out yes or no this material – then we went to see Gonzalo and Gonzalo would have made the appropriate decision.
PN800
Well the assertion is – the proposition is this duty. Making decisions about whether to approve or reject a sample tested?---I would only be able to do that if Gonzalo wasn’t here, otherwise - - -
PN801
So you did do that?---If Gonzalo wasn’t on here it would have fallen on to me.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN802
Yes so your statement in paragraph 33 that that duty at least was performed by Gonzalo and not by you that’s not quite accurate is it?---It’s not quite, but it’s accurate in that when Gonzalo is here I had nothing to do with that.
PN803
I see again in paragraph 66 of Mr Lipman’s affidavit another duty he raises is reviewing, testing techniques and methods. Now you accept now don’t you that you did perform that function at the Nuplex lab?---Which one is that?
PN804
Well you don’t have it before you but the duty Mr Lipman suggests to which you are referring in your paragraph 33 is :
PN805
Reviewing testing techniques and method-
PN806
Now you accept that you did that now, don’t you?---No, no, I didn’t. The whole laboratory looked into easier way of doing things. My that was not one of my specific jobs, that wasn’t part of my job no.
PN807
My recollection is that you just said a moment ago when I put it to you that you reviewed testing techniques you accept - - -?---No, I reviewed with other people testing methods. It was a – we were a team, we’re talking about a team.
PN808
So you accept that you did it in conjunction with other people?---I did it with, we did it as a team, we sort of talked about it and then we went and it worked that’s fine.
PN809
People other than Mr Verges?---People well Gonzalo would have had the final say we would come up with the idea, but Gonzalo has the final say whether yes or no, this is going to be implemented or it’s going to work. We didn’t have, we only came up with the proposals.
PN810
Okay now moving on Mr Brinskele you recall in mid 2006 you were informed by Mr Bennett that the Seven Hills site would close about mid 2007 you recall that and you were shown before lunch a document by Mr Reitano a few pages which you referred to. Can I show that document to you again, I take it you don’t have a copy with you?---No, I don’t.
PN811
Now I think your evidence was that you recall receiving the first page of that document the first page 4?---It would have been put on the notice board.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN812
Also the 7 and 8 pages is that correct?---Yes, I received 7 and I received 8, yes.
PN813
You received that in September 2006?---I’m not sure of when it actually happened, but yes you could be right there.
PN814
Can I suggest to you that you received it at a meeting attended by Mr Bennett, Ms Hardie and Mr Verges?---You can suggest that, but I don’t have any recollections of that no.
PN815
Do you positively recall seeing it on the notice board?---Yes.
PN816
But you don’t know how you got it?---That first page was on the notice board, I remember that, that was the beginning of the end for Nuplex.
PN817
You simply can’t recall the meeting, but you’re not saying that you didn’t receive this document at such a meeting, are you?---I can’t recall the meeting and I can’t recall – the only two documents are the last two pages, that’s all I can recall.
PN818
And the first page?---And the first page which was on the notice board, yes.
PN819
The first page was on the notice board but the last two pages weren’t?---No, the last two pages we were given individually.
PN820
Who gave you it?---I would – as a guess I would probably say maybe Gonzalo, I’m not 100 per cent certain.
PN821
It could have been Mr Bennett?---Normally Mr Bennett doesn’t do – he would give it to Gonzalo, it would be Gonzalo responsibility so I would say Gonzalo.
PN822
Just refine yourself to actually what you do remember?---Okay.
PN823
You can’t remember whether it was Mr Gonzalo?---I would say if it was anybody, well I can’t say 100 per cent, so I can’t say yes.
PN824
But somebody gave it to you?---Somebody gave me the last two pages, yes.
PN825
Your evidence was that you with page 7 you elected the answer no, to the proposition that you wished to express an interest in voluntary redundancy you see that?---Yes I saw that.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN826
Who did you give the expression of interest to?---It would have been talking about that form to say yes or no?
PN827
Yes?---Okay that would have gone to Gonzalo.
PN828
Do you remember that specifically or you’re not sure?---No, if we were given a form like that, it would immediately go to Gonzalo.
PN829
THE SENIOR DEPUTY PRESIDENT: What he’s asking you Mr Brinskele is whether you think that, whether that was the usual course of action, or you actually remember?---The usual course of action is that we give it to Gonzola.
PN830
MR CHIN: I’m asking you what you actually remember?---I actually remember okay, so I can’t say one way or the other.
PN831
THE SENIOR DEPUTY PRESIDENT: Mr Brinskele that was the answer in the first place?---Okay.
PN832
Okay slow down stop trying to be so helpful. You’re not supposed to invent an answer, you’re just supposed to give the answer you know, if you don’t know, or do?---Okay so don’t hang myself.
PN833
Don’t hang yourself, that would be good advice also, just answer the question as you’re asked?---Okay.
PN834
MR CHIN: The redundancy calculation sheet that you attach to your
statement?---Yes.
PN835
You’d received that on 5 October 2006 you say?---If it says that on there, yes.
PN836
Can I suggest to you that when you submitted your expression of interest saying no to voluntary redundancy it was some time after that?---Again you know that’s all vague, it could be, all I know is I signed it I handed it in, and that was in. The specific dates you know I’m - - -
PN837
Well can you recall whether you had possession of this redundancy sheet at the time that you submitted your expression of interest saying no?---Expression of interest saying no to?
**** WOLFGANG BRINSKELE XXN MR CHIN
PN838
Voluntary redundancy?---I have no idea I can’t tell you that yes or no.
PN839
You accept that you attended a meeting at the end of October, about 24 October 2006 with Mr Bastounas, Mr Lipman and Mr Parsons from Lomb? I think if it helps it’s paragraph 18 of your statement?---Okay yes I remember the meeting.
PN840
At that meeting you were asked if you were interested in transferring to Lomb, weren’t you?---An expression of interest, yes. An expression of interest in new employment yes.
PN841
I think you say your response was that you’d think about it?---Yes, well it would be courteous, you never say no, yes or no to something like that until you have all the facts.
PN842
So you were aware in late October that there may be prospect of employment with Lomb?---Expression of interest does not necessarily carry on that I would be that there was employment. It was just like with Gonzalo, it was just an expression of interest.
PN843
Well you knew that there may be an opportunity for you to be employed by Lomb at that stage?---They talk to a person there was always that opportunity yes.
PN844
You knew that was so at the time that you rejected the voluntary redundancy proposal didn’t you?---That I – no, no, I didn’t – when you say that – no, no, that came – I don’t that’s – no idea. Just trying to place how that actually you know this is – we’re talking about a couple of years ago and you know the things that I’ve been through you know they sort of just rattle your mind and you know it’s something that happens so many months ago you just can’t place them any more.
PN845
You can’t remember whether you had in your mind that there was a prospect of employment with Lomb at the time that you submitted your expression of interest in voluntary redundancy saying no, is that right?---No, let’s put it this way. There was an expression of interest from Lomb that’s it.
PN846
No I’m asking you not about that, I understand you say that you just expressed interest that you’ll think about it to Lomb, I’m asking you about perhaps we’re confusing terminology, but you recall the expression of interest as to whether you wanted voluntary redundancy you recall that?---Yes, yes.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN847
And you said no, is that right?---That could have been before or after.
PN848
You can’t remember?---I can’t remember that.
PN849
Okay I want to suggest to you Mr Brinskele that in fact that it was – in fact you knew that there was a prospect of employment with Lomb before you – at the time that you had rejected any interest in voluntary redundancy that was one of the reasons why you rejected the voluntary redundancy?---Because of prospect with Lomb?
PN850
Yes?---No, I don’t think so, not that. The – being a workaholic there’s no way they would have given me voluntary redundancy when that form came around, so that was just a - - -
PN851
You wanted to continue working?---Well I wanted to continue – I didn’t want to continue working they work – they would not have gone my redundancy then it would have been zero, no way. I know that for a fact.
PN852
Let me interpret that you did not with to be made redundant at that time, and you made an expression or you indicated in your expression form that you did not wish to be considered for voluntary redundancy?
PN853
MR REITANO: I object, it was two questions in one.
PN854
MR CHIN: I’ll withdraw it I’ll rephrase it.
PN855
THE SENIOR DEPUTY PRESIDENT: It was but they weren’t hard questions and he’s already said yes to both of them, I think he’s just trying to clarify it at the moment.
PN856
MR REITANO: I’m not objecting just for the sake of it.
PN857
THE SENIOR DEPUTY PRESIDENT: I know that.
PN858
MR REITANO: I’m doing it for the witness to have a fair opportunity to deal with the question and they were two different questions, I don’t care what the answer is in a sense but they - - -
PN859
THE SENIOR DEPUTY PRESIDENT: I understand that I can see that they were both two questions all I’m saying is that he could have answered them, but he can ask them one at a time. Yes, I’ve forgotten what they were now.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN860
MR CHIN: I think I’ve forgotten the first question myself.
PN861
MR REITANO: The first one was he didn’t want to be made redundant at that time, and the second one was about the expression of interest.
PN862
THE SENIOR DEPUTY PRESIDENT: No, I think you started off with – expression of interest is a dreadful term to keep using in a situation when in fact what you’ve got is no interest, your refusal – why don’t we just start calling it the refusal of the offer of the voluntary redundancy, or it wasn’t really an offer was it? Yes, well it’s all very confusing if you in this situation as Mr Brinskele is.
PN863
MR CHIN: Perhaps I can deal with it in this way your Honour.
PN864
In October at least of 2006 you indicated to Nuplex either to Mr Verges or someone else, that you did not wish to be considered for voluntary redundancy correct?---That’s right I said no.
PN865
Yes and can I suggest this to you, the voluntary redundancy calculation sheet you have annexed to your statement that was provided to you in connection with this voluntary redundancy process?---I have no idea all I know is that Gonzola one day came around and gave us that piece of paper that you’re talking about.
PN866
What was indicated to you was that if you had been selected for voluntary redundancy this would be your entitlement?---That’s right Gonzalo just made us aware of what we were entitled to if things were going to go from bad to worse.
PN867
But you were aware that if you had indicated, ticked the box yes to voluntary redundancy and that you had been selected for voluntary redundancy?---I wouldn’t have been selected - - -
PN868
Well just let me finish my question – if you were selected voluntary redundancy this redundancy sheet indicated what your entitlement would be?---That’s right and I wouldn’t be here now.
PN869
But you didn’t tick the box, yes you ticked the box no?---Yes, I ticked the box no.
PN870
Now on 24 October that meeting you recall with Mr Parsons and Mr Lipman and Mr Verges?---Mr Verges wasn’t there.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN871
I’m sorry Mr Bastounas I meant to say, you were told that the Ajax lab would be in some way replicated at the Riverstone site of Lomb?---We didn’t have an Ajax lab at Nuplex.
PN872
Well the QC lab I’m sorry?---QC lab yes, that would be impossible because we had two floors, so you couldn’t possibly fit the Nuplex lab over at Riverstone, so if they told me that, you know the alarm bells would have started ringing straight away.
PN873
They told you that they would be building a new lab at the Riverstone
site?---They would be building a brand new laboratory at the Riverstone, yes
PN874
okay and you knew that from 24 October?---They just – no that was just an expression of interest that part about the laboratory came later on with Mr Lipman. This was just an expression of interest to see if I was interested in transferring from one. The part with the laboratory only came later on.
PN875
I want to suggest to you that Mr Lipman at this meeting told you that the lab would be built at Riverstone?---No, I don’t - - -
PN876
Do you recall that or do you say it didn’t happen?---No, I don’t recall that. I’d have to look at the - - -
PN877
Might it have been said and you’ve forgotten or you just deny that it was
said?---No, I think it was –well it was to me it was denied. There was no mention of that sort of thing.
PN878
You indicated didn’t you even at that early stage that not only were you interested or that you would consider employment with Lomb?---No, expression of interest.
PN879
Just let me finish, but that you would be happy to work for Lomb?---No, I wouldn’t have said that no.
PN880
Now Mr Brinskele your conditions of employment at Nuplex can I ask you about that? You recall your annual salary was $62,040 per annum. Is that a yes?---Well that’s what’s written on the paper yes.
PN881
You don’t disagree with that?---No, I don’t disagree with that.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN882
Plus superannuation?---Plus superannuation yes.
PN883
Are you aware that that was at a rate higher than the other QC lab analysts?---No, that’s not – strictly speaking some of those analysts would have got probably more than me because we had a 24 hour laboratory and they were doing shift work, so with the shift allowance some of those analysts plus the overtime on the Saturday and Sunday would have been earning a lot more.
PN884
You didn’t see any of their pay packets did you?---No, I don’t think I’d want to see their pay packets.
PN885
You were just guessing about that?---I was just guessing, yes.
PN886
Okay that’s because they were on weekly wages with penalty and loadings?---We had a mixture. We had a mixture, half on weekly and half on what on what you call staff.
PN887
I see and you were one of the staff?---I was one of the staff, yes.
PN888
I see were you aware that your rate was higher than the highest rate for QC at lab analysts under the Nuplex enterprise agreement?---No, I never saw any pay packets, no.
PN889
But I’m asking in relation to the enterprise agreement, the Nuplex enterprise agreement were you aware of what the pay rates were in that agreement?---No.
PN890
Okay can I ask you to look at paragraph 22 of your statement please? Have you got it there?---Yes, I have.
PN891
Can I ask you to look at paragraph 22 and (iv), do you see that where you say:
PN892
At no time did Mr Lipman inform me that the Lomb offer would not be less than what I was getting at the applicant.
PN893
You see that?---Yes.
PN894
You say that’s true do you?---That’s correct yes.
PN895
By that you mean would not be getting less remuneration than what you were getting at the applicant, correct?---It would be talking about my yearly salary, yes.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN896
Can I ask you to look at paragraph 24? Now you’re referring to Mr Lipman’s affidavit here about the meeting on 4 December 2007 where Mr Lipman says he gave you the letters of offer you remember that?---Yes.
PN897
I’ll come to that in a moment, I know you have some disagreement with that. But you say that in paragraph 24 that at this meeting Mr Lipman said to you and you quote your salary will be the same as it is now. You see that?---Which paragraph?
PN898
Paragraph 24?---Okay, no, no, we would have only talked about the initial salary that’s it.
PN899
You say, do you say that your statement is incorrect?---What statement is that?
PN900
That at this meeting Mr Lipman said to you that your salary will be the same as it is now?---That’s right my salary would be the same as that, that’s correct, yes.
PN901
So he did tell you that?---Yes, he did tell me that.
PN902
So he told you that your salary at Lomb would not be less than what you were getting at Nuplex right?---Yes but - - -
PN903
MR REITANO: I object.
PN904
THE SENIOR DEPUTY PRESIDENT: Yes, if you have an objection get up Mr Reitano.
PN905
MR REITANO: I object, it’s the word so, at the beginning of the question makes it objectionable.
PN906
THE SENIOR DEPUTY PRESIDENT: Yes, it does Mr Chin, you can’t do that.
PN907
MR CHIN: Yes your Honour.
PN908
You accept that Mr Lipman told you that your employment that if you had accepted an offer of employment at Lomb, your salary would not be less than what you were getting with Nuplex?---Yes, initially he told me that.
PN909
Yes he told you that. So your assertion in paragraph 24 (iv) that’s wrong isn’t
it?---The assertion is wrong that I was never made a written offer - - -
**** WOLFGANG BRINSKELE XXN MR CHIN
PN910
No, no, I’m talking about the first sentence I took you to just a moment
ago?---Okay at no time did Mr Lipman inform me that the Lomb offer would not be less than what I was getting at the applicant, nor
did he ever tell me that I would be made a – I was never made a written offer yes, that’s correct.
PN911
I want to ignore for a moment the part about the written offer and just confine yourself to the first proposition in that statement.
PN912
MR REITANO: Can I object to this now before the question comes. I don’t want to be accused of tipping the witness off, but - - -
PN913
THE SENIOR DEPUTY PRESIDENT: Well would you like the witness to go outside?
PN914
MR REITANO: I think so, just in case there is some issue about it.
PN915
THE SENIOR DEPUTY PRESIDENT: Yes, would you mind just waiting outside for a minute, thank you. Just leave everything there you can come straight in my associate will come back and get you.
PN916
MR REITANO: I’m only interested in ensuring that the witness is fairly dealt with, I’m not really interested in much else. But the paragraph in paragraph 22 starts with "in reply to paragraph 31 of Mr Lipman’s affidavit" and then it goes on and says:
PN917
At no time did Mr Lipman tell me that I would not be receiving less than I was receiving at Nuplex.
PN918
That’s because it lifts the words straight out of the conversation in paragraph 31 that Mr Lipman says that he says.
PN919
THE SENIOR DEPUTY PRESIDENT: And you think that it’s confined to that occasion, is that what you’re suggesting?
PN920
MR REITANO: No, he’s saying at no time did Lipman say to me it will not be less than that which he received at Nuplex not at no time did Mr Lipman say the salary will be the same or will be increased. That is at no time, did he use those words. That’s unfair reading of it.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN921
MR CHIN: That’s not what it says.
PN922
MR REITANO: Well if my friend would let me deal with the objection without being interrupted.
PN923
THE SENIOR DEPUTY PRESIDENT: Yes, I know - - -
PN924
MR REITANO: The affidavit says in response to paragraph 31 and if your Honour looks at paragraph 31 on the fourth last line, Lipman says that he said to Mr Brinskele I am trying to determine if you’re interested in the offer it will not be less than that which you will get at Nuplex. When Mr Brinskele says that at no time did he say that he literally means at no time did he use those words and that is a fair reading of what he says in his affidavit.
PN925
THE SENIOR DEPUTY PRESIDENT: All right. Mr Chin you’ve heard what Mr Reitano says do you still want to put your proposition to the applicant? Always seem to be doing to me I can’t get applicant out of my head.
PN926
MR CHIN: Your Honour I might have a moment.
PN927
THE SENIOR DEPUTY PRESIDENT: There’s no point in asking a question if the answer is unreliable because the witness might have been confused. It’s in everyone’s interest that the question is as clear as possible so that the answers can be relied on.
PN928
MR CHIN: I’ll deal with it in another way your Honour.
PN929
THE SENIOR DEPUTY PRESIDENT: In any event if you don’t want to you can put the matter but I think it will be up to Mr Reitano to put the other proposition and in fact, to make that submission about what the answer means.
PN930
MR CHIN: Yes.
PN931
THE SENIOR DEPUTY PRESIDENT: Okay well we have him back in?
PN932
MR CHIN: Yes, your Honour.
PN933
Mr Brinskele I fear I must press on, in relation to the questions I was asking about your statement before, you were excused for a moment, in your statement in paragraph 2(iv) were you suggesting – you see that paragraph you’re replying to paragraph 31 of Mr Lipman’s affidavit. Without troubling you in paragraph 31 Mr Lipman deposes to a conversation in November where he says he said to you that:
**** WOLFGANG BRINSKELE XXN MR CHIN
PN934
An offer from Lomb will not less than that which you get at Nuplex-
PN935
And that’s what – is that what you’re referring to in your response in paragraph 22(iv)?---No, no, whatever is written there that’s - - -
PN936
Do you mean by paragraph 22(iv) that Mr Lipman only on this occasion in November didn’t inform you that the Lomb offer would not be less than what you were getting or that at any time Mr Lipman never at any time informed you that that was the case?---Somewhere along the line there was a discussion we had about three or four meetings one of those would have probably been a discussion on conditions, yes. That’s probably how it would have worked.
PN937
You don’t mean to suggest by that statement that Mr Lipman never told you that, it’s just that he didn’t tell you that on that occasion?
PN938
MR REITANO: What’s that – I object, sorry what’s that?
PN939
MR CHIN: That is that the Lomb offer would not be less than what you were getting with Nuplex.
PN940
MR REITANO: My friend should make it clear, that he never used those words.
PN941
THE SENIOR DEPUTY PRESIDENT: All right Mr Reitano.
PN942
MR REITANO: The witness needs to be treated fairly.
PN943
THE SENIOR DEPUTY PRESIDENT: I understand that Mr Reitano I don’t need you to lecture me on that.
PN944
MR REITANO: Your Honour I’m putting - - -
PN945
THE SENIOR DEPUTY PRESIDENT: If you have an objection put it in the proper form, and I’m going to let him answer the question.
PN946
MR CHIN: Thank you your Honour?---Which was?
PN947
THE SENIOR DEPUTY PRESIDENT: Which was good question?
PN948
MR CHIN: Did you mean to suggest that Mr Lipman at no stage told you that the Lomb offer would not be less than what you were getting at Nuplex?---I could not recall if that was the words he used, it could have been put exactly, it could have been a different way altogether. I have no recollection of as to how that actually was worded.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN949
Irrespective of how it was worded, are you meaning to suggest by that statement that Mr Lipman never told you that if you went across to Lomb the offer would not be less than what you were getting at Nuplex?---I could not say yes or no to that if that actual conversation you know took place.
PN950
You can’t say whether he did or not?---I can’t say yes or no, he may have I was a bit wary when you went into that place. You went in there by yourself, nobody else, no Nuplex representative was there with me.
PN951
I just need you to focus on the question Mr Brinskele?---I’m just showing you how they were.
PN952
Just a moment - - -
PN953
MR REITANO: I object he should let the witness finish.
PN954
MR CHIN: If the witness is not being responsive your Honour.
PN955
THE SENIOR DEPUTY PRESIDENT: It may be that you could say that and as I understand it he just did finish. I was probably the only person who heard the end of the answer, yes well go on.
PN956
MR CHIN: Yes, well your evidence is that you can’t remember whether Mr Lipman ever said that to you, that being an offer by Lomb would not be less than what you were getting at Nuplex?---It may have happened it would have been much easier if I had another person in there with me who could sort of you know explain how things work.
PN957
In any event you stick by what you say in paragraph 24 as to what Mr Lipman told you at the meeting on 4 December 2006, don’t you?---If I signed that?
PN958
You’ve got it in front of you?---Yes.
PN959
You stick by that don’t you?---Not word, yes, I you know, if you know, but you’re not, it’s written like that yes.
PN960
Well do you adhere to that or don’t you?---Yes, I adhere to that.
PN961
Yes?---But you can’t put it in exactly, it’s not written, the way it’s written is not always the way things are happened.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN962
I understand but you understood from Mr Lipman’s meeting with you on 4 December that if you accepted an offer of employment from Lomb your salary would not be less than what you were getting at Nuplex?---I’ll tell you what - - -
PN963
You understood that didn’t you?
PN964
MR REITANO: I object.
PN965
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Chin you can’t make this witness’s answer shorter by interrupting in mid sentence.
PN966
MR CHIN: Yes your Honour I’m conscious of the time.
PN967
THE SENIOR DEPUTY PRESIDENT: No, the time is the respondent’s problem not yours?---Mr Lipman had one objective to get me over there, I had another objective. I had questions about it, so we were, he was talking about one thing and I was thinking about something else. So whatever went on, some of it is a complete blur.
PN968
MR CHIN: It’s a complete blur you can’t really remember what went on at that meeting on 4 December is that what you are saying?---4th that’s right I couldn’t remember, what happened, exactly what happened on 4 December. We had a few meetings I’m not even sure about that, you know.
PN969
I see when as you say in your statement when Mr Lipman said to you on 4 December 2006 your salary will be the same as it is now, all your entitlements to annual leave, sick leave, and long service leave will come over to Lomb, when he told you that he was talking about an offer of employment that he made to you on that day to go to Lomb wasn’t he?---That could have gone straight over my head. I may not even have been listening when he said that.
PN970
I see okay so you can’t say for sure that Mr Lipman didn’t make you an offer on that day?---When you say an offer what do you mean by an offer?
PN971
An offer to you to come and work for Lomb?---Okay now the only - - -
PN972
MR REITANO: I object.
PN973
THE SENIOR DEPUTY PRESIDENT: Yes.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN974
MR REITANO: It’s too late now he’s interrupted and he’s forgotten, he wasn’t able to continue his answer, so be it, there’s nothing I can do to fix the situation. My friend insists on coming in over the top of him, every time he tries to answer a question.
PN975
THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Reitano, yes?---Just to finish off.
PN976
MR CHIN: Yes, go ahead?---The best we get was an expression of interest, that’s as far as it went, expression of interest, it never went any further than that.
PN977
Mr Brinskele you know very well that Mr Lipman made you – offered to employ you at Lomb on 4 December 2006 meeting?---Okay I was on a Bible, wasn’t I? And I’m supposed to tell the truth?
PN978
Yes?---Yes, well there you are, that should answer your question.
PN979
What is your answer?---No.
PN980
I see well what did you think he was talking about when he said your salary will be the same as it is now?
PN981
THE SENIOR DEPUTY PRESIDENT: I don’t think he’s consented he said that.
PN982
MR CHIN: Well it’s in his statement and he’s adhered to it.
PN983
THE SENIOR DEPUTY PRESIDENT: I know but I think you should distinguish, well since you’ve had a long line of questioning about what he remembers, and during which he’s given you answers to say that he didn’t remember, you should distinguish about the evidence he’s just given and the evidence in his statement
PN984
MR CHIN: Yes your Honour.
PN985
THE SENIOR DEPUTY PRESIDENT: I mean this cross-examination on this particular issue has been going on for 15 minutes and he could be confused.
PN986
MR CHIN: Yes, your Honour I think I’ll leave the evidence as it is on this issue, except for this your Honour.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN987
You don’t recall, the truth is Mr Brinskele is that you don’t recall whether Mr Lipman gave you a written letter of offer do you?---Something like that you would remember yes.
PN988
But you can’t remember what happened on 4 December 2006?---If somebody gave you a written letter with a letter with a contract, you would remember something like that, yes.
PN989
Well no, the question is different. Can you remember whether you received one or not?---I didn’t receive one.
PN990
You’ve just said you don’t remember what happened on 4 December 2006, the meeting with Mr Lipman?---No, no the meeting with Mr Lipman was just an expression of interest, that was it. What actually took place we could have been talking about the weather. So it’s just you know, it wasn’t that was there was no contract or anything it was just talk, my concerns and then his – he not listening as to what my concerns were so I was wasting my time.
PN991
Can I suggest to you Mr Lipman on that meeting offered you to come to work for Lomb and gave you two copies of a letter of offer that is annexed to his statement?---Which of course then I took back and came back 10 minutes later and gave back to him and said no, that’s silly, that’s absurd.
PN992
I see Mr Brinskele your evidence is that you were concerned that Lomb at the time correct?---It didn’t have a lab at the time.
PN993
Your evidence is that you had some concern about it, correct?---Great concern yes.
PN994
Was that – the fact that there was no lab at that time at Lomb was that a reason that you did not want to work for Lomb?---That was one reason, the other reason is that - - -
PN995
Just confine yourself to the questions that I’m asking one at a time. Now you accept that Mr Lipman did inform that a lab would be built?---He probably would have glanced over that yes, very vague he was very vague.
PN996
You accept that Mr Lipman told you that a laboratory was going to be built at the Riverstone site?---He promised a lot of things you know you sort of take it - - -
**** WOLFGANG BRINSKELE XXN MR CHIN
PN997
THE SENIOR DEPUTY PRESIDENT: Mr Brinskele?---Answer the question.
PN998
That would be good if you want to get to work today that would be good?---Okay.
PN999
MR CHIN: Do you accept that or not?---What’s that?
PN1000
That Mr Lipman told you that there would be a lab built at the Riverstone
site?---He would have said there would have been a laboratory completed at the Riverstone site in March April.
PN1001
Is that your evidence he told you that?---That’s what he would have – that’s what he would have expressed.
PN1002
Is that what you remembering him saying to you?---That’s what he would have – he mentioned something about a laboratory yes and that I would be ready to occupy.
PN1003
Where is that in your statement?---Does it have to be put down in the statement?
PN1004
Well it’s – is it in your statement?---No, it’s not in my statement.
PN1005
You’ve just thought that up in the witness box haven’t you?---That there is going to be a – no, no.
PN1006
You didn’t think that was relevant to put in your statement?---No, I don’t see why, it was just something that Alan told me to try and get me over there. It was just you know, people try all sorts of different things to get people in certain locations.
PN1007
Well were you aware of when the laboratory at the Riverstone site would be completed?---No.
PN1008
You didn’t know?---I didn’t know anything it was all vague.
PN1009
You didn’t ask Mr Lipman when the laboratory would be completed at the Riverstone site?---I asked certain questions about the laboratory, about lab personnel and certain – like the redundancy and things like that, but nothing was forthcoming.
PN1010
Well can you answer my question? Did you ask Mr Lipman when the laboratory at the Riverstone site would be completed?---No, no I never asked him that question.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN1011
I see?---I wanted something written down to say that there was going to be a laboratory. I just wanted – you know, you got to have something.
PN1012
You didn’t ask Mr Lipman for something written down about the laboratory did you?---I talked to him about getting something written down to say that I need something a laboratory personnel, a laboratory, you know, you just can’t you know, from what I heard about Riverstone it was just a block of land with an old shed.
PN1013
Where’s that in your statement Mr Brinskele?---It wasn’t why do I need to put that down?
PN1014
I see you didn’t think it was relevant?---It may have been relevant, but to me it wasn’t relevant because it – Mr Lipman was sort of a little bit of a sort of he sort of stretched things to suit, like to tell you what you wanted to hear.
PN1015
Well you didn’t know you say you didn’t know what role you would have while the laboratory at Riverstone was being built is that right?---What role I would?
PN1016
Yes?---I didn’t have – all I know is that it was laboratory manager that’s all that was discussed.
PN1017
I see and you didn’t think to ask Mr Lipman what role you would have, what duties you would be doing while the lab at Riverstone site was being built?---I wasn’t interested in that because there was no laboratory there in the first – I wouldn’t even ask a question like that.
PN1018
You didn’t think those matters, that is when the lab would be built, what role you would have while it was being built, you didn’t think those were relevant matters to ask Mr Lipman?---Mr Lipman told me the laboratory was going to be there for me in the near – you know in the next few months and that – but then when we heard there were problems, you start to think about what’s actually happening over there. They don’t tell you everything that you know, they tell you only certain things. They only tell you certain things.
PN1019
Mr Brinskele your evidence is that the absence of a lab at Riverstone was one of the concerns that you?---That’s right.
PN1020
About going across to Lomb?---Yes, that’s right.
**** WOLFGANG BRINSKELE XXN MR CHIN
PN1021
And is your evidence is that the Commission ought to believe that that was the case when you didn’t even bother to ask about what your role would be and when it would be completed?---No, no I wanted it written down not – don’t worry about asking, written down, asking means nothing. I could say to you this and this, if you have it written down, that’s the proof, you’ve got to have something written down.
PN1022
Can I suggest to you Mr Brinskele that really the truth is that you weren’t so concerned about the lab - - -?---Very concerned.
PN1023
Because you knew it would be completed - - -?---Very concerned.
PN1024
Your only concern was really that you wanted payment for redundancy by Nuplex?---No that only became a concern when the problems with Lomb arose.
PN1025
Sorry Mr Brinskele if you can bear with me a moment. Thank you your Honour.
PN1026
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Reitano.
MR REITANO: No questions your Honour.
PN1028
THE SENIOR DEPUTY PRESIDENT: So this is listed tomorrow, do you want to address me this afternoon or in the morning?
PN1029
MR CHIN: We have tomorrow set aside tomorrow, I can address this afternoon, but - --
PN1030
THE SENIOR DEPUTY PRESIDENT: It’s just that you both are not going to get finished this afternoon, I think, I might be amiss you can cheer me up and tell me you will but.
PN1031
MR CHIN: I think it’s unlikely I think I’ll be 40 minutes or thereabouts.
PN1032
THE SENIOR DEPUTY PRESIDENT: All right what about Mr Reitano you happy in the morning.
PN1033
MR REITANO: I’m never happy.
PN1034
THE SENIOR DEPUTY PRESIDENT: Will you turn up in the morning?
PN1035
MR REITANO: Yes your Honour for your Honour’s assistance I’ll be about
20 minutes.
PN1036
THE SENIOR DEPUTY PRESIDENT: We could do it today.
PN1037
MR CHIN: I can’t guarantee 40 minutes your Honour.
PN1038
MR REITANO: Like his cross-examination your Honour.
PN1039
THE SENIOR DEPUTY PRESIDENT: Like all counsel’s cross-examination. Well I think in that case it’s better to do the submissions in one hit for me. So 10 o’clock?
PN1040
MR REITANO: Yes your Honour.
PN1041
MR CHIN: Yes your Honour.
PN1042
THE SENIOR DEPUTY PRESIDENT: See you in the morning at 10 o’clock.
<ADJOURNED UNTIL FRIDAY 2 MAY 2008 [3.39PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #NUPLEX1 AGREEMENT PN112
EXHIBIT #NUPLEX2 AWARD PN112
EXHIBIT #NUPLEX3 CHRONOLOGY PN112
EXHIBIT #NUPLEX4 AFFIDAVIT OF MR SAM BASTOUNAS SWORN 04/04/2008 PN112
EXHIBIT #NUPLEX5 AFFIDAVIT IN REPLY OF SAM BASTOUNAS SWORN 30/04/2008 PN112
SAM BASTOUNAS, SWORN PN114
EXAMINATION-IN-CHIEF BY MR CHIN PN114
CROSS-EXAMINATION BY MR REITANO PN124
THE WITNESS WITHDREW PN179
ALAN MARK LIPMAN, SWORN PN186
EXAMINATION-IN-CHIEF BY MR CHIN PN186
EXHIBIT #NUPLEX6 AFFIDAVIT OF ALAN MARK LIPMAN SWORN 04/04/2008 PN188
EXHIBIT #NUPLEX7 AFFIDAVIT IN REPLY OF ALAN MARK LIPMAN SWORN 30/04/2008 PN188
CROSS-EXAMINATION BY MR REITANO PN195
RE-EXAMINATION BY MR CHIN PN407
THE WITNESS WITHDREW PN418
GONZALO VERGES, AFFIRMED PN420
EXAMINATION-IN-CHIEF BY MR CHIN PN420
EXHIBIT #NUPLEX8 AFFIDAVIT OF GONZALO VERGES SWORN 05/04/2008 PN427
EXHIBIT #NUPLEX9 AFFIDAVIT IN REPLY OF GONZALO VERGES SWORN 30/04/2008 PN427
EXHIBIT #NUPLEX10 LETTER PN466
CROSS-EXAMINATION BY MR REITANO PN468
THE WITNESS WITHDREW PN530
SARAH ANNE HARDIE, AFFIRMED PN538
EXAMINATION-IN-CHIEF BY MR CHIN PN538
EXHIBIT #NUPLEX11 AFFIDAVIT OF SARAH HARDIE DATED 03/04/2008 PN544
EXHIBIT #NUPLEX 12 AFFIDAVIT OF SARAH HARDIE DATED 01/05/2008 PN544
CROSS-EXAMINATION BY MR REITANO PN546
RE-EXAMINATION BY MR CHIN PN619
THE WITNESS WITHDREW PN639
WOLFGANG BRINSKELE, SWORN PN654
EXAMINATION BY MR REITANO PN654
CROSS-EXAMINATION BY MR CHIN PN686
THE WITNESS WITHDREW PN1027
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