C2007/3836, Transcript of Proceedings [2008] AIRCTrans 34 (29 January 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18014-1

VICE PRESIDENT LAWLER

C2007/3836 C2007/3837 C2007/3858

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
Mr Kenneth Watson
and
ACT Department of Disability Housing and Community Services
(C2007/3836)

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
Mr Keiran Juskevics
and
ACT Department of Disability Housing and Community Services
(C2007/3837)

s.170LW - prereform Act - Appl'n for settlement of dispute (certified agreement)
Mr Mark Abbey
and
ACT Department of Disability Housing and Community Services
(C2007/3858)

SYDNEY

10.13AM, FRIDAY, 11 JANUARY 2008

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

PN1

THE VICE PRESIDENT: Just as a matter of the record, Ms Keys, you're of counsel, you appear for the applicants in each of the three matters?

PN2

MS J KEYS: Yes, that's correct.

PN3

THE VICE PRESIDENT: And Ms Robinson, you're a senior solicitor with the ACT Government Solicitor and you're appearing for the respondent in each of the three matters?

PN4

MS H ROBINSON: That's correct, although we have counsel at the actual hearing.

PN5

THE VICE PRESIDENT: Yes. Who is counsel?

PN6

MS ROBINSON: Geoff McCarthy.

PN7

THE VICE PRESIDENT: Geoff McCarthy, great, thank you. First of all thanks very much for making yourselves available. I thought it was desirable that we have a mention of the three matters just to make sure that we're all on the same page in terms of what's going to occur next Friday. As I understand the situation, each of the three individuals for whom you act, Ms Keys, are the subject of decisions to terminate their employment?

PN8

MS KEYS: No, no. Well, they were proposing to terminate employment but
Mr Abbey who is matter 3858, he's still working for the department and the disciplinary action that was actually taken in November 2007 was to admonish him.

PN9

THE VICE PRESIDENT: Yes.

PN10

MS KEYS: Mr Watson, there's been no disciplinary action taken against him because he resigned last August I think it was.

PN11

THE VICE PRESIDENT: And what is the relief that he seeks if he resigns?

PN12

MS KEYS: Well, Mr Juskevics has actually been terminated. All of them are seeking just correction of the record. There's the records indicates that the applicants were accessing pornography.

PN13

THE VICE PRESIDENT: Yes.

PN14

MS KEYS: And that that's not the case, they dispute that. They agreed that they were access Adult Friend Finder websites.

PN15

THE VICE PRESIDENT: Yes.

PN16

MS KEYS: But that they're not and shouldn't have been classified as pornographic.

PN17

THE VICE PRESIDENT: And from your perspective that quite narrow issue is the issue that's for determination next Friday?

PN18

MS KEYS: Sort of, yes. I can't say totally. There are sort of I think a number of different clauses of the agreement that we have identified in the application that we don't believe that the department followed that, you know, would have made the decision that they had been guilty of misconduct, unfair and unreasonable. So it's essentially - - -

PN19

THE VICE PRESIDENT: I'm just coming back to the relief that's being sought then; does it go beyond what you've described as correction of the record?

PN20

MS KEYS: No, it doesn't really, no.

PN21

THE VICE PRESIDENT: You're after what is in substance a declaration that they weren't guilty of what they were specifically accused of?

PN22

MS KEYS: Yes.

PN23

THE VICE PRESIDENT: They may have been guilty of something else but they weren't guilty of what they were specifically accused of?

PN24

MS KEYS: Yes.

PN25

THE VICE PRESIDENT: Ms Robinson, do you have a sense that you understand precisely what it is that will be in contest next Friday?

PN26

MS ROBINSON: I think so, at least in relation to Mr Watson and Mr Abbey. We understand that both of those individuals have some dispute as to how the certified agreement has been applied in their case and that the dispute basically comes down to that.

PN27

THE VICE PRESIDENT: Okay.

PN28

MS ROBINSON: So this one of piece of an extended proceeding as such, so we do understand the - - -

PN29

THE VICE PRESIDENT: As I understand it, the matters have been the Administrative Decisions Tribunal in respect of the Administrative Decisions (Judicial Review) Act?

PN30

MS ROBINSON: No, the - - -

PN31

THE VICE PRESIDENT: Then they went to the court and the court said, hang on a minute, you should go off and utilise the remedy you've got under the agreement first and the ACT Government Solicitor in fact embraced that?

PN32

MS ROBINSON: Your Honour, that's not entirely correct.

PN33

THE VICE PRESIDENT: Okay.

PN34

MS ROBINSON: An application was brought under the Administrative Decisions (Judicial Review) Act in the Supreme Court before the Master.

PN35

THE VICE PRESIDENT: Right.

PN36

MS ROBINSON: So it was never before the AAT or the equivalent. It simply went for judicial review in the Supreme Court before the Master and then before one of the judges on appeal.

PN37

THE VICE PRESIDENT: Okay, sorry. And what is the status of those proceedings?

PN38

MS ROBINSON: They've been adjourned indefinitely really, pending the outcome of these proceedings.

PN39

THE VICE PRESIDENT: Right. Do the parties have a perception that there will be conciliation and then arbitration, or do they have a perception that this is just an arbitration that's occurring?

PN40

MS KEYS: I have a perception that there will be a conciliation and then arbitration.

PN41

THE VICE PRESIDENT: Right, okay.

PN42

MS KEYS: I don't know if the ACT Government Solicitor - - -

PN43

MS ROBINSON: We're happy to proceed either way. Certainly the way we've always done these before is that it always has been a conciliation and then if that doesn't - - -

PN44

THE VICE PRESIDENT: Yes, that's the usual way. The parties can agree or the facts can ..... and the fact and the circumstances can be such that there's just no utility in conciliation because each side is quite emphatic that its position is correct and there's just no practical prospect of that gap being bridged and so some people can say, well fine, we just want a call made and we'll proceed to do that.

PN45

MS ROBINSON: In these circumstances that actually is probably the case but I mean - - -

PN46

THE VICE PRESIDENT: In any event, at this stage if there's short conciliation followed by arbitration neither of you are going to object to that?

PN47

MS KEYS: No.

PN48

MS ROBINSON: No. Although I'd like to say in relation to Mr Juskevics I'm instructed to contest the jurisdiction of the AIRC to hear that given how far out of time the application is. Mr Juskevics' employment ceased in, I think, March last year so his circumstances are somewhat different to Mr Abbey and Mr Watson, but that would be a preliminary issue that I think that counsel will raise at the beginning.

PN49

THE VICE PRESIDENT: That's actually quite a significant issue in the sense that a Full Bench in ING v Jajoo has determined that the jurisdiction of the Commission survives termination at least in respect a dispute that has already been notified pursuant to the dispute resolution procedure.

PN50

MS ROBINSON: Yes.

PN51

THE VICE PRESIDENT: Whether the jurisdiction of the Commission exists in respect of an application or a dispute notified after termination is still something that's yet to be finally determined and I think that's a matter of some, yes, significant.

PN52

MS ROBINSON: Yes, that's certainly our understanding of the situation.
Mr Watson we have no dispute, did notify before he resigned, so we have no issue in relation to him. But Mr Juskevics, as I understand it, did not so I'm not sure how your Honour would suggest we'd proceed in relation to that.

PN53

THE VICE PRESIDENT: Well, that's just one of the issues that we take account of which is the purpose of having this conversation now just to make sure that we don't end up wasting time and money next Friday because everybody is at cross purposes as to what is happening in terms of evidence and in terms of relief and in terms of the position that each party has adopted. Okay, so the ACT Government takes the jurisdictional objection in respect of Mr Juskevics?

PN54

MS ROBINSON: Yes.

PN55

THE VICE PRESIDENT: Okay. Ms Keys, does that come as a surprise to you? Does that impact upon your - - -

PN56

MS KEYS: That's the first I've been notified about that.

PN57

THE VICE PRESIDENT: Okay. If you're not familiar with it, if you could just take a note of that ING v Jajoo which is spelt, J-a-g-o-o or J-a-j-o-o.

PN58

MS KEYS: I'll find it.

PN59

THE VICE PRESIDENT: Yes. It was a Full Bench decision early last. I just don't have the details to hand at the moment. Okay. Now, what about evidence, is there going to be a - do you both feel that you have a pretty fair understanding of what the scope of the likely evidence and there's therefore no need to exchange either some form of statements or outlines?

PN60

MS ROBINSON: I think most of the evidence has already been tendered between the parties in the Supreme Court.

PN61

THE VICE PRESIDENT: Yes.

PN62

MS ROBINSON: We have some additional evidence that we have provided informally but would be providing formally, so that's our position.

PN63

THE VICE PRESIDENT: Right.

PN64

MS KEYS: I'm not sure what that means.

PN65

MS ROBINSON: There's some additional information, documentation or records that we have sent Mr Watson previously which is some records of material he accessed, so he has those. So there's nothing we'd be relying upon that hasn't already been provided.

PN66

THE VICE PRESIDENT: Okay. So it's the material that was - the evidence is going to be confined, at least in terms of evidence of the case in-chief so far as the applicants are concerned, or the primary case in response so far as the ACT Government is concerned, there's nothing which will be led which is outside of the following category, evidence tendered in the Supreme Court plus whatever additional documents have been sent to Mr Watson?

PN67

MS ROBINSON: Yes.

PN68

THE VICE PRESIDENT: Ms Keys, are you happy with that as well?

PN69

MS KEYS: Yes, I am, but what, so that there wouldn't be any evidence in relation to Mr Abbey, because I don't think he's been provided with a copy of the reports of what he accessed?

PN70

MS ROBINSON: I think he has but just in case, we're quite happy to provide that again.

PN71

MS KEYS: Well, he hasn't.

PN72

MS ROBINSON: I believe he was given a copy of the investigation report.

PN73

MS KEYS: No, he hasn't.

PN74

MS ROBINSON: Okay. I'll need to get back to you on that, but in the meantime I'm happy to send you a copy of the report. I'll provide that.

PN75

THE VICE PRESIDENT: Okay. Ms Keys, can you do your best to capture in your statement as possible what you say this case is about?

PN76

MS KEYS: Okay. And I was proposing to actually file the letters that represents the decision and the statement of reasons in relation to each applicant.

PN77

THE VICE PRESIDENT: Yes.

PN78

MS KEYS: That's just fundamentally what I think - but that's fundamentally what the applications are about, that documentation, that record and I think that would be the - - -

PN79

THE VICE PRESIDENT: And you want to demonstrate by reference to documents and oral evidence from your clients that that determination is wrong or wrong headed or whatever?

PN80

MS KEYS: Yes.

PN81

THE VICE PRESIDENT: Okay.

PN82

MS KEYS: And I think that would assist if I could actually be allowed to file those before next Friday, along with a statement of the issues.

PN83

THE VICE PRESIDENT: Okay. I think that would make sense. If it's convenient for you to do that, I don't want to unreasonably increase the cost burden on your clients, so it's really a question of ensuring that neither of you is so taken by surprise that there has to be an adjournment and then further costs incurred.

PN84

MS KEYS: I'm not sure whether the ACT Government Solicitor would want to file anything in addition, but I would be just filing the letters that were sent to the applicants about notifying them of the charges and then the statement of reasons and notifying them of the decision.

PN85

THE VICE PRESIDENT: Okay. And then in terms of the actual oral evidence, if there is to be any, it would be confined to the three individuals and to the decision maker I take it?

PN86

MS KEYS: Yes. Well, at conciliation I wouldn't envisage any oral evidence.

PN87

THE VICE PRESIDENT: Well, yes, I'm sorry, of course. But I thought we were working on the assumption that if the matter doesn't - if it's clear that the matter is not going to resolve after a short period of conciliation we'll be moving to arbitration.

PN88

MS KEYS: Yes, yes. Well, if it does go to arbitration, yes, oral evidence just from the applicants and I don't know who else the respondents would want to call.

PN89

MS ROBINSON: Well, that raises an issue. We hadn't envisaged that oral evidence would be required to be given. A problem that presents for us is that
Mr Wale is actually not available on the date of the hearing.

PN90

THE VICE PRESIDENT: Mr Wale being the decision maker?

PN91

MS ROBINSON: Being the actual decision maker, yes.

PN92

THE VICE PRESIDENT: Yes. Was there any investigator in addition to
Mr Wale?

PN93

MS ROBINSON: There was an investigator but another member of staff that was assisting with the preparation of materials and such, so we haven't yet, no.

PN94

THE VICE PRESIDENT: So Ms Robinson, then do I understand you to be saying that that would be mean that you're not in a position to proceed in finality on an arbitration next Friday?

PN95

MS ROBINSON: We're certainly in a position to proceed to finality in the sense that we'll have an appropriate person with the delegation to make a decision and Mr Wale will be available by telephone.

PN96

THE VICE PRESIDENT: Okay.

PN97

MS ROBINSON: But we wouldn't be in the position to put him on the stand so to speak to give evidence.

PN98

THE VICE PRESIDENT: Well again, just in terms of an arbitral outcome next Friday as distinct from a conciliated outcome, can that occur from your perspective at the moment or can't it? In other words, is Mr Wale's physical attendance to give evidence necessary from your perspective?

PN99

MS ROBINSON: Not from our perspective because we believe the evidence speaks for itself.

PN100

THE VICE PRESIDENT: No, look, that's fine. I was only hypothesising who the likely witnesses would be.

PN101

MS ROBINSON: Yes.

PN102

THE VICE PRESIDENT: But at the moment what I'm hearing is it's from the Government's perspective it's documentary, the material speaks for itself.

PN103

MS ROBINSON: Yes.

PN104

THE VICE PRESIDENT: And from the applicant's perspective it may be that the material speaks for itself and it's just a matter of addressing argument based on the documents, but it may also be that the applicants will each give evidence.

PN105

MS KEYS: I don't envisage that it would be necessary for the applicants to give evidence. I think the documents speak for themselves.

PN106

THE VICE PRESIDENT: Well, then this is becoming far more manageable. If it's just a documentary case and arguments on documents, then that's fine, okay. Well look, the way that this mention has unfolded I'm just wondering whether there's a need for anything further to be done. Ms Keys, is there anything that you think needs to be done in terms of preparation or directions? I think the way it's developed, if it's an arbitration is not going to have any witnesses and which is really just a question of documents and legal argument, provided we all know what the documents are, then there's really not any difficulty.

PN107

MS KEYS: No, that's right.

PN108

THE VICE PRESIDENT: So what about if you each exchange a list of the documents that you wish to rely upon?

PN109

MS KEYS: Okay.

PN110

MS ROBINSON: Yes.

PN111

THE VICE PRESIDENT: Are you both happy with that?

PN112

MS KEYS: Yes.

PN113

MS ROBINSON: Yes, I am.

PN114

THE VICE PRESIDENT: Okay, fine. Would it be convenient to do that, to each send the other a list of the documents you propose to rely upon by the close of business Wednesday?

PN115

MS ROBINSON: Yes.

PN116

MS KEYS: Yes.

PN117

THE VICE PRESIDENT: Okay, wonderful. Excellent. Anything further that we need to deal with?

PN118

MS KEYS: No. Do you want me to file copies of those documents with the Commission?

PN119

THE VICE PRESIDENT: Look, if it's convenient to do so, yes, I think that would be sensible because it will mean that I'll have a chance to be more prepared rather than less prepared.

PN120

MS KEYS: Yes, that's right. Look, I will file those documents by Wednesday.

PN121

THE VICE PRESIDENT: Wonderful. Alicia, are you there?

PN122

THE COMMISSION: Yes, I am.

PN123

THE VICE PRESIDENT: Can you make sure that you speak to the ACT registry people and get them to an overnight bag on Wednesday night?

PN124

THE COMMISSION: Certainly.

PN125

THE VICE PRESIDENT: And if we could make it say by I think 3 o'clock on Wednesday just because of the overnight bag issues, if you do it at 5 o'clock or
4 o'clock.

PN126

MS KEYS: I'll try and get them filed by Tuesday.

PN127

THE VICE PRESIDENT: Wonderful.

PN128

MS KEYS: That will allow a bit more time.

PN129

THE VICE PRESIDENT: Okay. Anything further?

PN130

MS KEYS: No.

PN131

MS ROBINSON: No, your Honour.

PN132

THE VICE PRESIDENT: Wonderful, okay. I look forward to seeing you both on next Friday on the basis that we've discussed. Thank you.

PN133

MS KEYS: Thank you.

PN134

MS ROBINSON: Thank you.

<ADJOURNED ACCORDINGLY [10.32AM]