C2008/2602, Transcript of Proceedings [2008] AIRCTrans 393 (25 July 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18830-1

SENIOR DEPUTY PRESIDENT WATSON

C2008/2602

s.120 - Appeal to Full Bench
Appeal by Rail Corporation New South Wales
(C2008/2602)

MELBOURNE

2.02PM, TUESDAY, 08 JULY 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR P GINTERS: I seek leave to appear on behalf of the appellant.

PN2

MR A JOSEPH: I seek leave to appear on behalf of the respondent. I'm instructed by MS L PRESDEE from Slater and Gordon.

PN3

THE SENIOR DEPUTY PRESIDENT: There's no issue about leave. Leave is granted in both instances. Mr Ginters.

PN4

MR GINTERS: Your Honour, there is an affidavit that is filed in support of the stay application. It was sent to your Honour's associate this morning. Does your Honour have that on the bench?

PN5

THE SENIOR DEPUTY PRESIDENT: I do, yes.

PN6

MR GINTERS: Mr Powell is available in the courtroom in Sydney if he is required. I understand my learned friend would require him if your Honour was prepared to permit cross-examination. All I can say on that question is this, your Honour, this is a stay application, and interlocutory application. It is entirely a matter for the Commission but in my respectful submission, having regard to what needs to be established, one would not allow cross-examination in this sort of application.

PN7

THE SENIOR DEPUTY PRESIDENT: What is the purpose of the affidavit, Mr Ginters?

PN8

MR GINTERS: It goes to three matters, your Honour. Firstly, it goes to this matter, Commissioner Larkin ordered that Mr Vrettos be reinstated effective, I think it was 23 June 2008. Mr Vrettos has been put on the payroll effective 23 June 2008 and paid since then. He has not been reinstated to perform duties for RailCorp. The affidavit deposes to reasons why that is the case, in particular that Mr Vrettos is required to undertake a medical assessment which is scheduled for 14 July.

PN9

The second issue that the affidavit goes to is the question of balance of convenience and the issue of the need for RailCorp to reorganise its rostering arrangements on the assumption that Mr Vrettos passes the medical assessment.

PN10

The third issue which it goes to is the question of ..... and a concern that my client has that if it is successful on the appeal, it will have difficulties in recovering any amounts that have been paid to Mr Vrettos if a stay is not otherwise granted.

PN11

There is a fourth issue which is this, that reinstating Mr Vrettos to what was his former position would involve reinstating Mr Vrettos to a position at Bankstown station primarily, which is the station for which one of the witnesses who was subject to the verbal abuse from Mr Vrettos is also stationed. We say that goes to the practicability and the loss of trust and confidence which would again warrant the stay being granted pending the outcome of the appeal.

PN12

THE SENIOR DEPUTY PRESIDENT: Mr Joseph, what's your position?

PN13

Mr JOSEPH: I think the problem is this. I acknowledge what my learned friend said about the fact that it's uncommon to cross-examine in proceedings such as these. The problem is, I think, that the affidavit does not, if one reads it with its annexures, make out some of the propositions that he says it stands for, particularly as to the requirement for a medical examination by Mr Vrettos.

PN14

One of the problems in a situation like this, your Honour, is that I might just well look at the document on its face and say, "Well, I'll make these submissions about it," but if my learned friend says, "Well, you can't put those submissions because the affidavit says something contrary to that," I might be in a disadvantageous position at least on that question as to whether Mr Vrettos could be reinstated before the end of July or thereabouts, without cross-examining the witness in relation to the evidence that he purports to give. Can I say this, any cross-examination should take no more than five minutes or so.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Ginters.

PN16

MR GINTERS: I've got nothing really further I could say, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: I propose to allow cross-examination so I'll make arrangements for someone - you propose to go to Mr Powell immediately, Mr Ginters?

PN18

MR GINTERS: It was my intention to do so, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: I'll have my associate arrange someone attend in Sydney and swear the witness. Somebody is on their way.

PN20

MR GINTERS: Thank you, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. go ahead.

<WAYNE MORRIS POWELL, SWORN [2.14PM]
<EXAMINATION-IN-CHIEF BY MR GINTERS

PN22

MR GINTERS: Your name is Wayne Morris Powell?---That is correct.

PN23

You are an acting human resource with RailCorp?---At present, yes.

PN24

You've sworn an affidavit for the purposes of these proceedings?---I have.

PN25

Do you have a copy of that affidavit with you in the witness box?---I do.

PN26

Have you had an opportunity to read that affidavit recently?---I have, yes.

PN27

Do you say, Mr Powell, that the contents of that affidavit are true and correct to the best of your knowledge and belief?---They are.

PN28

I tender that affidavit.

EXHIBIT #STAY RCNSW1 AFFIDAVIT OF WAYNE MORRIS POWELL OF 14 PARAGRAPHS AND THREE ATTACHMENTS

PN29

MR GINTERS: Please the Commission.

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Joseph.

<CROSS-EXAMINATION BY MR JOSEPH [2.16PM]

PN31

MR JOSEPH: Mr Powell, you have some particular knowledge of the health assessment process for RailCorp employees?---I do.

PN32

Do you say that Mr Vrettos is due for a medical assessment?---To my knowledge, yes.

PN33

On what basis?---He was last - when I was informed he was to be reinstated, as part of my role I then looked at when the last assessment occurred. I noticed the previous ones were monthly and he hadn't had one for approximately two years. I then contacted the HR service centre who schedule the appointments and they confirmed that he would have been due for assessment in around about August of this year.

PN34

Can I ask you to go to page 8 of, I think it's annexure WP2?---Yes.

PN35

Sir, the health assessments there state - I'm looking at the page that says Health Assessment Information for Category 2 Employees. Have you got the same page?
---I have now, yes.

**** WAYNE MORRIS POWELL XXN MR JOSEPH
PN36

It says there that scheduling for health assessments is five yearly up to the age of 50. Are you aware that Mr Vrettos is 47 years of age?---I wouldn't be aware of his exact age, no.

PN37

If he was 47 years of age, that means he would have an assessment, assuming he was employed, every five years?---If he was over 50 and there was no other health concerns, yes.

PN38

If he was under 50?---Yes.

PN39

You said, sir, that he'd been having medical assessments approximately every
12 months?---According to the records I observed, yes.

PN40

Do you have WP1 with you That's the first annexure, it's the test details?---Yes.

PN41

You see, sir, there that he had an assessment in August 2004?---September 2004. Is that it?

PN42

Yes?---Yes.

PN43

Before that he'd had one in October 2001?---Yes.

PN44

Then another one in December 2004?---If I just may point out, the October 2001 is PME, which is VCH, the words after that is a vision, colour sense and hearing exam, That exam is different from the mandatory ..... that's different.

PN45

All right. Then one in September 2006?---He had one in 2004, there was a subsequent follow-up, it appears, in December 2004, September 2005 and the last one recorded there is September 2006, item 1.

PN46

You're not aware as to why that happened?---Because of confidentiality, HR don't get advised of the outcome. We're simply told if they're fit or unfit. Quite regularly they will be asked to be reviewed in 12 months' time. I'm only assuming that that may have - - -

PN47

Sorry, I didn't mean to cut you off, but I don't want you to assume. I'm asking you whether you have any knowledge as to why Mr Vrettos was tested more than once in five years. Can I ask you this, sir, in relation to the way those assessments ordinarily take place, employees who are employed - I'm not talking about people who have been terminated and have been reinstated, but persons who are employed, they don't have to stop work for any period of time before they're assessed, do they?---No, unless they attend an assessment and there's an identified health problem which would put them at risk.

**** WAYNE MORRIS POWELL XXN MR JOSEPH
PN48

Ordinarily, in the ordinary course of events, a person who is employed who comes up for their regular health assessment, they'll work each day and then on the day of the assessment go and have the assessment and assuming there's nothing particular wrong, they'll just go back to work?---Correct.

PN49

Can I put this to you, there is nothing in the procedures that actually require a person who's been terminated and then reinstated to undergo an assessment before they start work again?---No, however, as Mr Vrettos wasn't working and couldn't attend his September assessment in 2006 - the one in 2007, he was overdue an assessment.

PN50

That was based on what you'd said in his previous records, not based on RailCorp policy?---Well, from my experience as a HR person, I knew Vrettos was being tested every 12 months ..... 2007. I would have requested he attend one in 2007 anyway. He was on annual review. Obviously, that was because of the circumstances that led us to be here today.

PN51

Had he not been terminated, he would have been working?---He would have attended his assessment and depending on the outcome of that, may have continued to work.

PN52

He would have been working up until that assessment, sir?---Up until the assessment.

PN53

Had he not been terminated?---Yes. He would have been required to attend the assessment. If that didn't occur, he may well have been removed from rail safety because his ..... card would not have been validated.

PN54

You say in paragraph 11 you've been trying to identify a position for Mr Vrettos. Mr Vrettos was employed as a general relief duty manager at Bankstown?---My understanding, yes, that's correct.

PN55

That means he covers for station managers?---From time to time he may well - Mr Vrettos's position is that of holiday relief where he'd relieve officers at Bankstown for annual leave, may relieve the station manager from time to time. He may also be used to cover shifts at other locations, depending on operational requirements.

**** WAYNE MORRIS POWELL XXN MR JOSEPH
PN56

In relation to paragraph 12, are you aware whether Mr Nawar works fulltime at Bankstown?---I have had some discussions with Mr Nawar about HR issues on where - he is at Bankstown , has been for sometime. I'm informed that he has been recommended for that position and has been placed there ..... permanent basis but I'm aware he's currently at Bankstown acting in the SM's role.

PN57

That's the station manager's role?---Station manager's position.

PN58

You say in paragraph 13 that rosters are prepared a fortnight in advance?---To my knowledge, yes.

PN59

You've known about Mr Vrettos's what I'll call reinstatement order since 23 June. Have you made any effort to place him on a roster?---At this stage, no, probably because of the upcoming medical assessment, but no, not at this stage. I've made some preliminary inquiries about available positions within duty manager 3 roles for Mr Vrettos but there hasn't been any action to progress that at this point.

PN60

Despite the fact that had Mr Vrettos not been terminated he would have been working - - -

PN61

MR GINTERS: I object to that. My learned friend doesn't know that.

PN62

THE SENIOR DEPUTY PRESIDENT: It would be the normal position, would it not?

PN63

MR GINTERS: With respect, your Honour, the normal position would have been subject to - I think Mr Powell's evidence is the normal position would be subject to him having satisfied the medical assessment.

PN64

THE SENIOR DEPUTY PRESIDENT: I think his evidence also was that officers will continue work and simply attend on the appointed day for a medical assessment.

PN65

MR JOSEPH: Your Honour, I don't need to press that question.

PN66

Just to understand your evidence, you're not aware of anything, you're not aware of any reason that requires Mr Vrettos to undertake assessments every 12 months?
---I wouldn't know the reason for annual assessments, no.

**** WAYNE MORRIS POWELL XXN MR JOSEPH
PN67

Ordinarily, employees who are employed, work - assuming, for example, an employee has an assessment due on 1 October in a particular year, they work each working day up until that time and then they do the assessment and then they go back to work ordinarily?---Unless their assessment is due on a set date, as is required, if they are then not assessed prior to that date, we remove them from rail safety because they haven't got a medical ..... so the onus is on the employee to attend for testing on the scheduled date.

PN68

As far as you're aware, on the last date that Mr Vrettos was assessed, there was no issue about him continuing in work and he in fact continued in work beyond that date?---The last assessment in 2006, yes, he was deemed fit and to be reviewed, to my knowledge, probably in another 12 months' time.

PN69

No further questions.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ginters.

PN71

MR GINTERS: There's no re-examination for this witness. Might he be excused.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence,
Mr Powell, you're excused.

<THE WITNESS WITHDREW [2.27PM]

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ginters.

PN74

MR GINTERS: Your Honour, there are two matters that I need to address with your Honour today, the first of which obviously goes to the application for a stay. The second matter, which I'll return to the end of the submissions, is the question about the date that this matter has been set down for appeal. Can I deal first, though, with the application for a stay.

PN75

Might I inquire if your Honour has a copy of Commissioner Larkin's decision on the bench?

PN76

THE SENIOR DEPUTY PRESIDENT: I do.

PN77

MR GINTERS: Your Honour will see that on 19 June Commissioner Larkin handed down her reasons for decision and orders. Those reasons for decision and orders found that the termination of Mr Vrettos's employment was harsh, unjust and unreasonable and ordered that he be reinstated to a position with RailCorp. RailCorp seeks a stay of both the decision and order, your Honour. The tests that we are required to satisfy are not in dispute, I don't think. They are these: we need to demonstrate to your Honour that RailCorp has an arguable case and also that the balance of convenience lies in favour of the granting of the stay.

PN78

For present purposes, your Honour, the material findings of Commissioner Larkin in relation to the termination of Mr Vrettos's employment arise out of the following two circumstances. Firstly, Mr Vrettos's inappropriate and inexcusable behaviour in proceedings before the Transport Appeals Board - could I just pause there, your Honour.

PN79

The Transport Appeals Boards is a statutory board in New South Wales that hears inter alia appeals against promotional decisions from a variety of governmental or statutory organisations. In this case it was hearing an appeal against a decision to award Mr Vrettos a promotional position. Importantly, your Honour, the Transport Appeals Board is constituted by a permanent chairperson and an employer representative and a representative from the relevant union.

PN80

Materially, your Honour, there are two issues in relation to the termination, firstly, Mr Vrettos's inappropriate and inexcusable behaviour in proceedings before the TAB and then secondly, Mr Vrettos's threatening and intimidating phone call to a member of the TAB. Sequentially, I'll come to that in due course, but postdating the decision of the Transport Appeals Board Mr Vrettos made a telephone call to a member of that board, who was an employee of RailCorp and in Commissioner Larkin's reason for decision, the Commissioner finds that the purpose of that phone call was to threaten and intimidate the RailCorp employee who sat on the Transport Appeals Board appeal.

PN81

Again, it's beyond dispute that a reason for termination of an employee's employment will be regarded valid ..... a sound principle ..... Selvachandran decision which has been referred to for a number of years by .....

PN82

Importantly, your Honour, in her recent decision, Commissioner Larkin made these findings and what I'll do, your Honour, is I'll summarise the findings and provide your Honour with transcript paragraph reference. At the end of the first day of the TAB proceedings on 6 March 2007, Mr Vrettos was:

PN83

Out of line in his comments to Ms Burland.

PN84

That's at paragraph 123, Ms Burland being the advocate who was acting on behalf of Mr Vrettos. At the conclusion of the evidence of 7 March Mr Vrettos raised concerns of his with Ms Burland:

PN85

In an agitated manner and in a tone that Ms Burland found offensive.

PN86

That's paragraph 147, that Mr Vrettos's:

PN87

Manner and tone when raising issues with Ms Burland were seen by her to be offensive.

PN88

That's at paragraph 154 of the reasons for decision. Then materially, your Honour, there then occurred the outburst by Mr Vrettos at the conclusion of the TAB proceedings. There is an audio recording of Mr Vrettos's outburst. The transcript was recorded and I don't intend playing that to your Honour for present purposes, suffice to say that at the conclusion of the TAB proceedings the TAB upheld an appeal on behalf of Mr Nawar, N-a-w-a-r, that he was the more appropriate candidate for the promotional position. That had the effect that Mr Vrettos lost the promotional position and Mr Nawar was inserted in lieu.

PN89

As is recorded in Commissioner Larkin's decision, and the transcript of the outburst is also in the appeal books, Mr Vrettos, on hearing that decision engaged in what can only be described, with respect, as a verbal tirade in which he was engaged in a threatening and abusive and intimidatory manner to both Mr Nawar and his representative, Ms Burland. Relevant findings in that regard are as follows. At 155, Mr Vrettos accepted and did not dispute his behaviour at the conclusion of the TAB hearing on 7 March 2007, after the decision had been handed down, was inexcusable so an unequivocal finding that the behaviour was inexcusable.

PN90

At 163, that at the conclusion of the TAB proceedings Commissioner Larkin ..... the applicant very clearly is shouting in a very highly raised and aggressive voice and using inappropriate language. That's at 163. Again at 163 the Commissioner made the finding that Mr Vrettos's conduct was unacceptable. Similar findings are made at paragraphs 168 and 198 at the first bullet point. Subsequent to the conclusion of the TAB proceedings, Mr Vrettos made a telephone call to
Mr Jackson, Mr Jackson being the employer's representative on the Transport Appeals Board - - -

PN91

THE SENIOR DEPUTY PRESIDENT: I'm sorry, when was that?

PN92

MR GINTERS: It was in the aftermath of the Transport Appeals Board decision, your Honour. I'll attempt to locate the exact date of it. The material finding is found at paragraph 181 of Commissioner Larkin's decision where she found relevantly that by making the telephone call to Mr Jackson that he did, Mr Vrettos:

PN93

Intended to intimidate and threaten Mr Jackson.

PN94

The Commissioner went on, this is again at paragraph 181 of the reasons for decision:

PN95

It was inappropriate and plainly wrong for him -

PN96

That's Mr Vrettos:

PN97

- to make contact with Mr Jackson and to make what in my view were threats that further action would be taken. The insults to Mr Jackson's capacity to sit on the TAB were also inappropriate and wrong.

PN98

I indicate to your Honour that the telephone call to Mr Jackson was made on 9 May so it was made a number of months after the conclusion of the TAB proceedings but was made in a context where Mr Vrettos was threatening to commence judicial review proceedings in the Supreme Court in New South Wales.

PN99

Relevantly, according to Commissioner Larkin, and the Commissioner found; this is at 199 of the reasons for decision, there were two serious incidents in which the applicant's conduct was unacceptable. The first was his outburst at the conclusion of the TAB hearing on 7 March and then the applicant's conversation with
Mr Jackson. Her Honour concluded that in considering those incidents the finding was that - Commissioner Larkin found the applicant's conduct to be serious and warranting disciplinary action. That's at 199.

PN100

Importantly then, too, if the Commission could turn to paragraph 203 of the reasons for decision, at paragraphs 202 and 203 the Commissioner recounts some of the evidence of Mr Eid, a manager of RailCorp and the Commissioner found at paragraph 203 that Mr Eid's reliance in deciding to terminate Mr Vrettos's employment on:

PN101

The continuous repeat offences on Mr Vrettos's history and the continuous trend of "repeat offending" and of "intimidating, bullying and harassing behaviour" were -

PN102

and I emphasis these words, "valid considerations." What the Commissioner has done is made findings of inappropriate behaviour, behaviour that constituted an intention to intimidate and threaten a fellow employee, found reliance on the fact that Mr Vrettos had an employment history that was littered with examples of repeat offending and littered with examples of intimidating, bullying and harassing behaviour were all, to use her Honour's finding, valid considerations for Mr Eid to have regard to in deciding to terminate Mr Vrettos's employment, yet perversely, we say with respect, Commissioner Larkin concludes there was no valid reason for termination of Mr Vrettos's employment.

PN103

THE SENIOR DEPUTY PRESIDENT: Why is that perverse, Mr Ginters? Isn't the issue raised by the Commissioner one of proportionality, if you like, of the sanction to the inappropriate behaviour? I think that's evident in 199 where the Commissioner is persuaded that the conduct was serious and warranted disciplinary action, but did not, in effect, provide a valid reason for termination as the disciplinary action.

PN104

MR GINTERS: With respect, your Honour, we obviously say that finding is wrong. If one assesses, as one is required to, that a valid reason is one that is sound, defensible and/or well reasoned, that a finding that an employee's conduct, on his own admission, was inexcusable, conduct that involves threatening and intimidating and verbally abusing fellow employees, and conduct that involves an intention to threaten and intimidate a fellow employee in a phone call, can be nothing but a sound, defensible or well reasoned reason for termination, with respect, your Honour. Can I say, even more so, with respect, when one has regard to Mr Vrettos's disciplinary history.

PN105

Commissioner Larkin found at paragraphs 205 to 211 that it was open to her to have regard to Mr Vrettos's poor disciplinary history and the Commissioner, although in short form at paragraphs 206 and following, records some of that disciplinary history. Can I provide your Honour with a short synopsis of that. In April to May 1994, and I accept that's some period of time ago, Mr Vrettos was found by the TAB to be engaged in acts of misconduct, including the making of threatening phone calls to fellow employees and engaging in verbal abuse of employees. Mr Vrettos appealed that decision to a member of the Industrial Commission in New South Wales. The ultimate conclusion of that appeal was that the decision to dismiss was set aside but Mr Vrettos was suspended for approximately six months so as early as 1994 Mr Vrettos is suspended for
six months on what we say can only be findings that he engaged in misconduct, including threatening phone calls and verbal abuse of fellow employees, exactly the same conduct for which he was dismissed in 2007.

PN106

In September 1996 Mr Vrettos was charged with a number of matters by RailCorp including engaging again in harassing and intimidating behaviour. He was dismissed and I accept, your Honour, that the evidence shows and there's no dispute about this, subsequent court proceedings were settled on the basis of
Mr Vrettos again having a period of suspension imposed upon him. The agreed terms of settlement in that regard recorded that the suspension was because Mr Vrettos threatened other employees so again in 1996 we have Mr Vrettos engaging in conduct similar to that which he did in 2007.

PN107

In 1998 Mr Vrettos was finally warned for engaging in a verbal altercation with an employee and making obscene and racist remarks. In 2000 when Mr Vrettos appeared before the Transport Appeals board, the same board which he appeared before in 2007, Mr Vrettos referred to the chairperson of the Transport Appeals Board on transcript as a "corrupt piece of shit." One will find that at appeal book, volume 3, page 965. Mr Vrettos was initially suspended for referring to the chairperson as a corrupt piece of shit. He was suspended for that matter, however, that's suspension was later replaced with a final warning.

PN108

We have a litany of repeat conduct by this employee with respect. In March 2003 Mr Vrettos was found to have made inappropriate and offensive remarks to his local member, Mr Tony Stewart. As a consequence of this Mr Vrettos was counselled. In December 2003 Mr Vrettos was reprimanded and warned in relation to unacceptable aggressive, argumentative and intimidatory interactions with employees. Again in cross-examination Mr Vrettos accepted he was reprimanded.

PN109

We say, with respect that when one looks at the disciplinary history, Commissioner Larkin, as she was entitled to do - the findings that were made by the Commissioner at 199 that there was no valid reason for the termination of
Mr Vrettos's employment demonstrates error. When one considers what one needs to satisfy to establish a valid reason, the Selvachandran test, it was clearly a valid reason for the termination of Mr Vrettos's employment.

PN110

Commissioner Larkin, as I've indicated, your Honour, found at paragraph 213 that the termination of Mr Vrettos's employment was harsh, unjust and unreasonable. With respect, we say she erred in that regard in that the Commissioner did not provide any or any adequate reasons or explanation for why she thought the decision was so.

PN111

THE SENIOR DEPUTY PRESIDENT: Her whole decision is directed to that outcome, is it not? The Commissioner considered the statutory matters, she considered valid reason and finds that whilst there was conduct that warranted disciplinary action, did not provide a valid basis for the termination. She's then had regard to the process, as I recall.

PN112

MR GINTERS: And finds all our way, can I say with respect to the Commission in that regard, at paragraphs 200 to 203.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, that's correct, and then she considers the history of his employment, the matters you've been through and the fact that, notwithstanding all of that, Mr Vrettos was appointed to a position of station manager on application, the appointment which led to the appeal by the other gentleman, Mr Nawar, and considered also the applicant's age and considerable service with RailCorp. She's considered all those matters and come to a conclusion, has she not?

PN114

MR GINTERS: Yes, I accept that she has done that, but with respect, the error in relation to valid reason is fundamental because, other than the valid reason part of the statutory test, when she considered the other criteria in 653 that was relevant to the proceedings, found our way. Mr Vrettos was notified, had an opportunity to respond, and as to the other matters criteria, placed reliance upon the matters that Mr Eid gave evidence of which was the continuous repeat offences and the intimidatory, bullying and harassing behaviour.

PN115

With respect, the learned Commissioner has hung her hat on finding that there was no valid reason and when one reviews - - -

PN116

THE SENIOR DEPUTY PRESIDENT: I don't think that's fair to the Commissioner, is it? She's considered all of the statutory matters, including other matters, some negative to Mr Vrettos and some which obviously weighed in his favour, the length of service, the fact of a recent appointment to a promotional position, and she's weighed all those matters up - - -

PN117

MR GINTERS: Can I say, with respect your Honour, and I'm sorry, I don't mean to speak across your Honour. It's the time delay that's causing a difficulty. Insofar as her Honour took into account the 27 years of employment we say - and whilst I accept paragraph 211, she says she does not lightly brush over the applicant's history. With respect, we say that 27 years needs to be looked at in the context of what can only be described as the parlous employment history and the repeated history, with respect, of misconducting himself in the manner which he did at the end of the TAB proceedings in March 2007, namely engaging in threatening, intimidating and harassing behaviour.

PN118

THE SENIOR DEPUTY PRESIDENT: Is RailCorp of New South Wales prone to promoting persons with parlous employment histories?

PN119

MR GINTERS: No, with respect. The promotion that was granted to Mr Vrettos was a promotion that was granted in the period whilst Mr Vrettos was under investigation and we openly made the concession in the proceedings before Commissioner Larkin that this was not a case about performance per se in the job, it was a case about conduct and it was a case about inappropriate conduct by Mr Vrettos. It raised fundamental issues, with respect, that went directly to trust and confidence and duty of care. This is a person who occupies a position that requires him to have face to face contact with fellow employees in RailCorp and members of the public and it is, with respect, entirely inappropriate, we say, that a person who engages in such a position and who has a history of a litany of examples of inappropriate conduct, for which he was warned and was on notice, suspended and on notice and finally warned about, for him then to engage in that very same behaviour in what can only be described as an aggressive and highly emotive outburst in which he was intimidating fellow employees at the conclusion of proceedings, to then find that there is no valid reason for the termination, we say is just a fundamental error, with respect.

PN120

Can I move on if I may, your Honour.

PN121

THE SENIOR DEPUTY PRESIDENT: Before you do, which element of House v King approach do you say arises in this case? It's not a question of not having had regard to evidence, is it?

PN122

MR GINTERS: It's not a House v King error, with respect, it's an error of law. It's not a discretionary error.

PN123

THE SENIOR DEPUTY PRESIDENT: I'm sorry?

PN124

MR GINTERS: It’s not a discretionary error as to whether there was a valid reason or not, with respect. That's a matter that requires a legal and factual finding. The discretionary element comes in, we say with respect, to the reinstatement issue and we say, with respect, that Commissioner Larkin's findings in that regard - they are relevantly at 219 of the Commissioner's reasons for decision. Her Honour, with respect, in passing said this:

PN125

I have had regard to the requirements of section 654 and the parties' submissions and authorities relied upon in support of their respective argument.

PN126

Then her Honour in but five brief bullet points purports there to have had regard to that material: not argued that an order would affect the viability, well, that concession was made; substantial period of service, this is a relevant consideration. Well, he did have a substantial period of service but he also had a substantial disciplinary history as well; remuneration he would have received,
by-the-by with respect; not made an effort to mitigate his loss and have regard to his personal circumstances.

PN127

Now, in doing so, what one does not find, other than the oblique reference in 219 to purportedly having had regard to the parties' submissions, is these matters. The finding that he engaged in unacceptable conduct; the finding that he intended to intimidate and threaten a fellow employee; the fact that these were not one-off incidents; the fact that Mr Vrettos was on notice with respect to the seriousness with which RailCorp regarded his misconduct and past misconduct; the fact that throughout the TAB proceedings and the investigations that had been conducted by RailCorp, Mr Vrettos had levelled entirely unfounded allegations against fellow employees and persons occupying statutory office.

PN128

Can I just provide your Honour with indications of matters that were made in submissions to her Honour. Mr Vrettos described the TAB's decision as fucking bullshit. Mr Vrettos alleged that the TAB members were corrupt people, corrupt as hell. This was in the transcript, the verbal abuse at the end of the proceedings. Mr Vrettos alleged the TAB's decision was a corrupt decision, that the persons involved in the appeal were corrupt. Mr Vrettos alleged that there had been backdoor deals. Mr Vrettos alleged that members of the TAB were "corrupt criminals put in place here to come up with corrupt decisions." Mr Vrettos alleged to Mr Nawar, the employee at Bankstown, that he was corrupt as shit man. Mr Vrettos alleged that Ms Burland, the legal representative from RailCorp who was acting on Mr Vrettos's behalf, was involved in backroom deals with the Transport Appeals Board, which are highly unlawful and corrupt.

PN129

Mr Vrettos alleged that Ms Burland had engaged in misconduct. Mr Vrettos alleged that RailCorp employees colluded to cover up their corrupt conduct; alleged that RailCorp employees, including Ms Burland, were engaged in a conspiracy to portray him as being a person who engaged in aggressive and intimidatory behaviour; alleged there was proof of corruption, collusion and an attempt to pervert the course of natural justice; alleged that RailCorp employees and the chairperson of the TAB had decided to "stitch me up"; alleged that
Mr Nawar and Ms Burland had colluded to cheat him out of a job and threatened to report Ms Burland to the Legal Practitioners Board.

PN130

Following his termination, again these were matters that were put to Commissioner Larkin in submissions, Mr Vrettos wrote to his local member,
Mr Tony Stewart, where he alleged that RailCorp employees had acted corruptly, that he was sacked because he went to the corruption unit, that the TAB was a corrupt system, that the RailCorp workplace conduct unit had set him up to be sacked and that RailCorp employees had lied and covered up the truth.

PN131

Importantly, these, with respect, are matters which go squarely to the question of practicability of reinstatement and feature nowhere, or a recognition of them is featured nowhere in Commissioner Larkin's reasons for decision, other than, with respect, a passing reference where Commissioner Larkin states that she's had regard to the parties' submissions.

PN132

THE SENIOR DEPUTY PRESIDENT: And the final dot point where the Commissioner, in deciding the remedy, has regard to the fact that the applicant was not blameless in the events which occurred.

PN133

MR GINTERS: No, but also importantly, one needs to read that bullet point finding in the context of paragraph 164 of the learned Commissioner's reasons for decision where the learned Commissioner says at 164 that:

PN134

On the material it appears to me that the applicant makes statements of corruption, backroom deals ...(reads)... his suspicions of the conduct of others.

PN135

Reading on - this is the finding:

PN136

I am not convinced that the applicant had reasonable grounds for his suspicions on a number ...(reads)... on the balance of probability, did not occur.

PN137

It was in light of the fact, with respect, that Mr Vrettos had engaged in making such allegations and verbally confronting people and calling them corrupt as shit man and alleging that they were engaged in collusion and conspiracies, that there was unsurprising evidence from Mr Eid that there had been an irretrievable breakdown of the required level of trust and confidence between RailCorp and
Mr Vrettos, Mr Eid was cross-examined on this issue and at appeal book 1, page 329 - this was cross-examination, on 329, paragraph 3054,
cross-examination:

PN138

Mr Eid, you're saying that in balancing up the harshness or dismissing someone in Mr Vrettos's case ...(reads)... Mr Vrettos that he would not
repeat .....

PN139

There was not only evidence of Mr Eid in his affidavit material, he was a
cross-examined on the point of the breakdown of trust and confidence. He dealt squarely with that matter in cross-examination.

PN140

There was also evidence on, and one will see this in Mr Eid's affidavit which is in appeal book 3, page 780 at paragraph 52 that Mr Eid's concern was that RailCorp had occupational health and safety and duty of care obligations to protect its employees and persons who come into contact with its employees from being subjected to the type of inappropriate conduct that Mr Vrettos demonstrated.
With respect, those are all matters which go squarely to the questions of practicability of reinstatement and can I say, with respect to Commissioner Larkin, have been glossed over in her conclusion that it was appropriate to order the reinstatement of Mr Vrettos.

PN141

In my respectful submission, your Honour, the matters which go both to the question of valid reason and the matters which go - sorry, I withdraw that. In light of the learned Commissioner's findings in relation to the inexcusable and threatening and intimidating behaviour that Mr Vrettos engaged in, and when one views that conduct as one must against Mr Vrettos's employment history which reveals a litany of examples of similar conduct, we say, with respect, that there has been demonstrated to this Commission an arguable case that Commissioner Larkin erred in her decision in finding that there was no valid reason. Can I say, with respect, the learned Commissioner also erred in finding that it was appropriate to order Mr Vrettos's reinstatement.

PN142

We also say, with respect, as to the balance of convenience, the balance of convenience favours the granting of a stay. RailCorp has, with respect, a justifiable concern that if it is successful on the appeal, that having regard to Mr Vrettos's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the order of Commissioner Larkin. One will see in the affidavit of Mr Powell at annexure WP3, is an email that Mr Vrettos sent to Mr Eid on 7 March - does your Honour have that?

PN143

THE SENIOR DEPUTY PRESIDENT: I do.

PN144

MR GINTERS: There is a plea from Mr Vrettos that he be given a chance to fix up his life, deeply sorry for being upset, "I understand stress is no excuse." He goes on to say, though, about four lines up from the bottom:

PN145

I am now about to lose house -

PN146

Should read "lose my house":

PN147

- and everything and I have a wife and two children to support.

PN148

There is demonstrable evidence with respect, that Mr Vrettos is in an impecunious position. There are also, with respect, Commissioner Larkin's findings at bullet point 4 of paragraph 220 of the reasons for decision, which was that Mr Vrettos had not made a great effort to mitigate his loss suffered as a result of the termination. But I just interpose there in this sense. The evidence, as I recollect it, is that in the period since he was terminated, Mr Vrettos had made four applications for work, none of which had been successful.

PN149

The fact that there is that concern on behalf of RailCorp that there is no reasonable prospect of recovering moneys paid, pursuant to the orders, is a relevant consideration in terms of the granting of a stay. The decision in that regard is the decision of the High Court in the Federal Commissioner of Taxation v Myer Emporium 160 CLR, relevantly, at pages 222 to 223. Near the bottom of 222; does the Commission - - -

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR GINTERS: The Commission will see it begins:

PN152

It is well established by authority that the discretion which it confers to order a stay of proceedings -

PN153

Does the Commission see that?

PN154

THE SENIOR DEPUTY PRESIDENT: Yes.

PN155

MR GINTERS:

PN156

- is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation, pending the determination of any appeal.

PN157

Reference to authority:

PN158

Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory -

PN159

Again reference to authority:

PN160

Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance.

PN161

We say that one would be entitled to draw that conclusion, having regard to the fact that Mr Vrettos made, at best, minimal efforts to mitigate his loss, but also in circumstances where Mr Vrettos was writing to RailCorp indicating that he was about to lose his house.

PN162

There will also, with respect, be inconvenience to RailCorp if it is required to reinstate Mr Vrettos to employment, for what may, depending on the length of time to hear and determine an appeal, be a relatively short timeframe. For example, a requirement that Mr Vrettos be reinstated would require RailCorp to recast its rostering arrangements to put Mr Vrettos back on its roster. That was the evidence of Mr Powell.

PN163

The inconvenience that would be confronted by RailCorp if it is required to reinstate Mr Vrettos is all the more so in circumstances where the evidence of Mr Reid was that the relationship of trust and confidence had irretrievably been broken down. Reinstatement would also likely result in Mr Vrettos being placed in employment in a position that would require him to work with Mr Nawar.

PN164

The Commission may recall from the evidence of Mr Powell that Mr Vrettos’s substantive position is a position attached to or located at Bankstown, Bankstown being the position where Mr Nawar, the person who gave evidence against Mr Vrettos, is presently the station manager; and Mr Nawar being the person who Mr Vrettos verbally abused at the conclusion of the TAB proceedings on 7 March, including inter alia calling Mr Nawar a corrupt - “You’re as corrupt as shit, man” or words to that effect.

PN165

It is undeniable, if one had the opportunity to review the CD of that altercation, that as Commissioner Larkin found, Mr Vrettos ..... those threats or in making ..... intimidatory conduct was engaging with a highly raised voice and in an agitated manner.

PN166

I say, with respect, that there is clearly an arguable case for the granting of a stay in that the Commissioner erred, both as to her finding of valid reason and also as to the question of the appropriateness of reinstatement . We say the balance of convenience favours the granting of a stay, and in those circumstances we say it is appropriate for this Commission to grant a stay of the orders of Commissioner Larkin.

PN167

Can I say this, we press and it is our primary position - and I don’t wish to ..... from it at all, that we say that this is a case where a full stay of the decision is warranted. If the Commission is against me on that proposition, an alternative which I would accept may be open to the Commission would be a conditional stay, and that would be a stay along these lines, your Honour. It would be a stay of the decision reinstating Mr Vrettos on the basis that RailCorp continue to pay him his salary, pending the outcome of the appeal.

PN168

For what it is worth, your Honour, a stay in terms of similar effect to that was granted by Drake SDP in a matter of Culpeper, C-u-l-p-e-p-e-r, and one will pick up the terms of the stay. They’re set out in a decision of Marsh SDP in PR943751, that’s PR943751. The stay was relevantly in these terms, that the reinstatement ..... stay and that the appellant place the respondent on the payroll and pay him his full salary, pending the outcome of the appeal.

PN169

But that was importantly - and we say that this would be an appropriate requirement if your Honour was against me as to the full stay, that any obligation to pay Mr Vrettos his full stay would be on the basis of Mr Vrettos giving an undertaking that any income received by him would be refunded to the appellant in the event that the appeal succeeded.

PN170

Now that was the basis upon which Drake SDP was prepared to grant a stay order. We don’t, with respect, invite your Honour to make such a conditional stay. We say this is a case where it’s appropriate that both the order as to reinstatement and the order as to the ongoing obligation to pay ought be stayed. There is no issue in relation to back pay because in exercising her discretion, Commissioner Larkin ..... any order as to that. Your Honour those are, with respect, my submissions on why we say a stay ought to be granted in this case.

PN171

There is one further matter which I wish to raise, your Honour, and it’s this. The appeal in this matter has been set down on 20 August, some month and a half away. I need to be frank with the Commission in this regard. I was counsel engaged to run the proceedings before Commissioner Larkin. I am involved in another three-day proceeding on 20 August 2008. It would be my respectful request that the appeal date of 20 August be vacated. It is entirely a matter for the Commission. I can indicate to the Commission that the following week I am available.

PN172

THE SENIOR DEPUTY PRESIDENT: Well I have some difficulty there, Mr Ginters, because these are programmed Full Bench matters.

PN173

MR GINTERS: I understand that. I can do no more, your Honour, than make the application.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes.

PN175

MR GINTERS: I had experience before where it appears that the Commission is unwilling to move programmed dates. I can only say in my defence, with respect your Honour, that the matter was unilaterally listed - and I mean no criticism of the Commission in that regard - but it was listed without seeking counsel’s availability.

PN176

THE SENIOR DEPUTY PRESIDENT: Well that’s the normal process, Mr Ginters.

PN177

MR GINTERS: That’s why I say I had no criticism of that approach.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes.

PN179

MR GINTERS: I simply make the application, your Honour, that that hearing date be vacated and an alternative hearing date be located.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MR GINTERS: Those are my submissions.

PN182

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you Mr Ginters. Mr Joseph.

PN183

MR JOSEPH: Thank you, your Honour. Your Honour, as I understand the appellant’s position it is firstly in relation to the question of whether there was a valid reason for termination; that they complain about, in essence, an error of law. Your Honour asked my learned friend on what basis, in a House v King, context, the appeal was pitched, because - and I don’t mean this with any criticism - the notice of appeal doesn’t really identify at this point in detail the bases of the appeal.

PN184

But assuming that to be the case, in my respectful submission the attack on the learned Commissioner’s decision in that it is said that there was an error of law in looking at the question of whether there was a valid reason for termination, is not arguable. It is not suggested that Commissioner Larkin applied the wrong test. It is clear from the authorities that it is a decision to be taken, or to be made, objectively by the Commission. It is not whether the employer thought they had a valid reason to terminate. It’s for the Commission to decide - - -

PN185

THE SENIOR DEPUTY PRESIDENT: It’s King v Freshmore.

PN186

MR JOSEPH: Yes.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes.

PN188

MR JOSEPH: It cannot, in my submission, be suggested that the Commission did not apply the correct test in that sense. It seems, with respect, that the attack is on the basis that the Commissioner made a decision that the appellant, in essence, does not agree with, and that is of course understandable. But if one looks at the decision itself the Commission, if we take the TAB, the Transport Appeals Board, incident in the first place, what we have is a decision that over a space of approximately 50 paragraphs the Commission analysed, in quite incredible detail really, the events of a two-day period; and made various findings, some of which have been alluded to by my learned friend, but not all of which have been alluded to.

PN189

In essence, whilst it is said by the appellant that Mr Vrettos engaged in a verbal tirade, clearly the Commissioner decided that that was not the case. It is said that the behaviour was unacceptable in certain respects, but at paragraph 154 the Commissioner says:

PN190

On balance I am not persuaded that the applicant launched into an absolute verbal tirade of abuse -

PN191

And so on.

PN192

MR GINTERS: That’s the wrong day.

PN193

MR JOSEPH: Sorry?

PN194

MR GINTERS: That’s in relation to the 6th.

PN195

MR JOSEPH: Some reliance was also placed, your Honour, on a CD which is a recording, I understand, which I haven’t heard myself; a recording of the transcript of what took place during and after the Transport Appeals Board hearing. In that sense the Commissioner was clearly in a better place to decide, or to make findings, on what was heard. For example, the Commissioner says - just bear with me for one moment - certain allegations for example are made in paragraph 157 about the way in which he spoke to Mr Nawar. This is based on a reading of or hearing the recordings of the transcript of the proceedings.

PN196

Whilst it was suggested that Mr Vrettos had spoken in a loud and aggressive manner, and said certain things, certain allegations were based on that, the Commissioner found to the contrary. Ultimately in the end the Commissioner did make a finding in paragraph 163, as at the time that the Appeal Board’s decision was handed down, that Mr Vrettos’s behaviour at this point, that is at that point, became unacceptable, and that was said.

PN197

But a number of allegations have been made over the course in relation to the two-day hearing, and there can be no question over the period of 50 or so paragraphs in which the Commissioner considered those findings, that she was entitled to form the view that she did; that it was not a valid reason for termination.

PN198

One would consider, in that context, that she took into account for example, the stress that Mr Vrettos was under, the nature of the proceedings, the fact that he had initially been appointed to the station manager’s position at Newtown and had lost that on appeal. He was, albeit wrong-headed in his view, of the view that he had not been properly represented. Those were matters that the Commissioner took into account, and was entitled to take into account.

PN199

Now the mere fact that the Commission found that there was behaviour on behalf of the applicant that was unacceptable or inexcusable is not necessarily irreconcilable with a finding by the Commission that there is not a valid reason for termination. Ultimately it’s a decision of the Commission, and in the paragraphs that deal with the matter, paragraphs 198 and 199 of the decision, the Commissioner has set out her reasons.

PN200

Keep in mind that there were a number of allegations, your Honour, that were made. In essence two of them in title were not made out; the one about speaking to the media and the one about apparently being aggressive and threatening towards Mr Nawar in a station manager’s meeting on 29 May. They were not made out at all in the Commissioner’s view. In relation to the one in relation to Mr Jackson, that was made out; that’s conceded of course. I suppose it’s fair to say that certain aspects of Mr Vrettos’s behaviour on 7 March in particular were viewed as being inappropriate and unacceptable.

PN201

The Commissioner has therefore taken all of that into account in coming to her conclusion in paragraph 199. In my respectful submission there is no error of law on the face of that decision. There is no error in principle and no error in law. There may well be a disagreement, but the Commission is allowed to make that decision, and there could be no suggestion that she hasn’t done so objectively, on the face of all the evidence.

PN202

The error that is said to have occurred in relation to order of reinstatement is said to be a House v King error because it’s a discretionary matter. True it is that the Commissioner has not set out in great detail the arguments that were put by both sides, but it is said that she has taken those matters into account, and I think it’s relevant if you look at paragraph 211; the Commissioner has said prior to that - and my learned friend has already taken you to these paragraphs, your Honour. She had already said that it was okay in certain circumstances and it was not inappropriate to take into account past conduct.

PN203

But when we get to paragraph 211 it’s all put in context. It’s all put in context. The applicant’s disciplinary history must be considered, as she says, over 27 years of employment. Now albeit that part of the decision doesn’t go for 40, 50 paragraphs, much like the earlier part of the decision, but albeit that it is not so lengthy, it cannot be said that the Commissioner didn’t take into account the matters that were put before her.

PN204

My learned friend took your Honour to some aspects of his evidence, particularly in relation to a Mr Reid, saying that the employment relationship had broken down and there could not be sufficient trust and confidence. Well I am aware that contrary arguments, I think, were put by the applicant below, particularly in relation to the decision of the Federal Court in Perkins v Grace Worldwide, which is a well known decision for the proposition that reinstatement is not simply impracticable because the employer says it is so.

PN205

But in that context the Commissioner took into account all of the matters she was required to under the Act. It was conceded by the respondent below, by RailCorp, that operationally an order of reinstatement, that there were no particular adverse consequences that it was relying upon in respect of that particular statutory indicia. So one is left to consider what it was that the Commissioner ought to have done, other than what she did. But can I say this, your Honour - - -

PN206

THE SENIOR DEPUTY PRESIDENT: I understood, Mr Joseph, that Mr Ginters is focussing on the concern he says, which was afforded by history, of the applicant, Mr Vrettos, being prone to being abusive aggressive, which might be directed to other staff and/or customers. In some senses it’s almost a Barry Hall situation.

PN207

MR JOSEPH: Well that’s a very serious way to put it, your Honour.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes.

PN209

MR JOSEPH: The jury’s still out on that one. But all I can say in that regard is I think your Honour has to take into account the findings that were made in the decision itself. Yes it is true that aspects of his behaviour were seen as being unacceptable in relation to the TAB incident. But for example, the allegation specifically about Mr Nawar, in relation to 29 May incident, were not found to have been made out.

PN210

THE SENIOR DEPUTY PRESIDENT: Yes.

PN211

MR JOSEPH: Can I say this in addition, your Honour; Mr Vrettos did not get off unscathed. Apart from anything else, apart from the suggestion that his conduct could very well be the subject of disciplinary proceedings, he’s a person with 27 years’ service, two young children and a wife to support; no back pay was ordered. Now that’s a period of - I think he was dismissed in October 2007, through to the - well the effective date of the order was 23 June 2008. That is a very considerable punishment, in my view, and some of those matters, particularly about his behaviour post the decision, are taken into account in that respect on remedy.

PN212

THE SENIOR DEPUTY PRESIDENT: I was really directing that point to your reliance on Perkins v Grace Worldwide. I mean, certainly the fact that an employer doesn’t think reinstatement is impractical in itself is of no consequence. In this case Mr Ginters is arguing that that was not simply the view of the employer but a view which was objectively founded in the evidence, in terms of the past history. That’s really the context in which I raise the point.

PN213

MR JOSEPH: No, no, I take your point. I understand the way your Honour has fashioned that point. But I can only say in relation to that, that the findings were made about that as directly before the Commission.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes.

PN215

MR JOSEPH: The findings of the Commissioner were that in relation to the offensive behaviour before the Commission in relation to the four incidents and the, I suppose, two or the one and a half that were made out, were that they were around the appeals process arising out of the TAB hearing. But can I also say that the Commissioner - and again I don’t want to necessarily take you back to paragraph 211 - did certainly note that despite that past history which was said to be a basis for there being no trust and confidence, or partly to support that proposition, various things have happened in the meantime such as promotions.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes.

PN217

MR JOSEPH: Now your Honour can I say that’s all I really wanted to say and so I suppose in essence it will come as no small surprise that Mr Vrettos would submit that there is not an arguable case for the appeal, and therefore a stay - that would not support a stay.

PN218

But there are also very strong ground as to why you would not issue a stay, even if you did find there was an arguable case, on the question of balance of convenience. We have an employee or an ex-employee firstly with 27 years’ service, your Honour, who has been out of work now for several months and received no compensation for that period; who has won back his job in an unfair dismissal proceeding and is entitled to bear the fruits of his victory.

PN219

Now that may in itself depend on what view your Honour comes to on the question of arguable case but on the question of balance of convenience, that is in my submission a very powerful argument in Mr Vrettos’s favour. I’ll say something further about the position put by my learned friend about conditional stays in a short while.

PN220

But I think annexure WP3 to Mr Powell’s affidavit actually cuts both ways, with respect, and I know why it has been put forward. But in that sense there’s a very powerful argument to reinstate Mr Vrettos and allow him to work and earn money in the intervening period. Just bear with me for one moment, your Honour.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes.

PN222

MR JOSEPH: Your Honour, in relation to question of reinstatement itself, I don’t wish to say too much more. I appreciate my learned friend is agitating certain matters which, in my respectful submission, were agitated below and not accepted by the Commissioner having heard all the evidence. So I don’t think it is necessary to address those issues on the question of balance of convenience per se.

PN223

Whilst it is noted that Mr Vrettos was previously employed as a, I think, relief manager at the Bankstown station and Mr Nawar works there, that is not in itself, on the basis of the evidence and the findings of the Commissioner, a sufficient ground on which not to reinstate or not to allow the Commissioner’s order to remain in force.

PN224

In relation to the High Court decision that was put, can I say this. My instructions are that Mr Vrettos wishes to oppose the stay in total, but he would give an undertaking to repay moneys if the Commission was minded to make a conditional stay. But can I say this in that regard; that is, with respect, a less favourable or a least attractive option for Mr Vrettos. My learned friend has referred your Honour to a decision of the High Court which sets out various accepted principles in relation to where and why a stay would be allowed or given. But there’s a very simple answer to that proposition in relation to there being no reasonable prospect to recover moneys, and I’m putting aside Mr Vrettos’s offer in this case; and the simple answer is this. If Mr Vrettos was allowed to work then there’s no issue of paying money back.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes.

PN226

MR JOSEPH: Finally on that question, on the issue of the practicability and the timing which a reinstatement order could or would take effect, the Commission would view with some suspicion the proposition put by RailCorp that they have not reinstated Mr Vrettos to this point because he apparently had to undertake a medical assessment. There is no evidence before you in these proceedings that he is required to undertake a medical assessment. In fact, the RailCorp guidelines only require an employee under 50 years of age to undertake one every five years.

PN227

There is evidence that he was undertaking them or he had undertaken them three years in a row, in 2004, 2005, 2006. But there was no evidence to suggest that there was any reason why he had to undertake a medical assessment more frequently than is required by the policy itself, which is once every five years. There is also no reason or no good reason, in my respectful submission, why he should not have been allowed to work and then undertake any medical assessment at the appropriate time, just like any other employee.

PN228

Finally, in relation to the question of rosters, I can’t really say too much about Mr Powell’s evidence about rosters requiring a fortnight in advance to be organised. But I think it’s accepted that RailCorp is a large organisation and there doesn’t appear to have been any good reason, keeping in mind my submission, if you accept my submission about the medical assessment, your Honour, any good reason as to why those investigations could not have taken place from the day on which Mr Vrettos was reinstated, if not before.

PN229

Those are the submissions in relation to the stay. Can I also just say, your Honour, just on one more question, one final question. Mr Vrettos is opposed to the stay for those reasons.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN231

MR JOSEPH: But can I just say in relation to the matter raised last by my learned friend, the respondent on the appeal has no problem with the proposition put by my learned friend, and does not oppose the date of the appeal being changed.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR JOSEPH: Obviously I’ve heard what your Honour said and I know it’s a matter for the Commission, but my learned friend did raise that with me prior and I indicated that the respondent has no problem with the proposition that has been put by the appellant, about if it is possible to change the date, to change the date. I have some available dates if the Commission was minded to do so.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes, well it’s not a matter I can deal with myself in that there are other members of the Full Bench, and potentially the President if that requires some reconstitution of the Bench. So that’s a matter I’ll have to take on board but I understand your position, Mr Joseph.

PN235

MR JOSEPH: Thank you, your Honour.

PN236

THE SENIOR DEPUTY PRESIDENT: Mr Ginters.

PN237

MR GINTERS: I thank my learned friend in that regard. I’ll be very brief at the risk of being repetitious. My learned friend suggested in his submissions that Commissioner Larkin did not apply the wrong test or that there was no error of law. With respect, it is my submission that Commissioner Larkin did not apply the test as stated in Selvachandran. She applied some other test, not a test which she identified:

PN238

But in circumstances where one makes findings that an employee engaged in unacceptable behaviour, that an employee engaged in shouting in a highly raised voice, that an employee in so doing used inappropriate language, that an employee’s conduct in that regard was unacceptable, and that an employee engaged in conduct that was designed to threaten and intimidate a fellow employee, but also more to the point a fellow employee who was performing a statutory function and a member of the Transport Appeals Board -

PN239

When one makes those findings but then concludes that there was not a sound, defensible or well reasoned reason for the termination, one has fallen into error, with respect.

PN240

THE SENIOR DEPUTY PRESIDENT: But isn’t that a matter of judgment in application of the test to the facts of the matter?

PN241

MR GINTERS: It is but when one looks at those facts one cannot make the factual findings that the Commissioner did, and at the same time conclude that those factual findings don’t provide a basis for a conclusion that there was a sound reason for the termination or a defensible reason for the termination, with respect; and do so in circumstances where the learned Commissioner simply makes the findings no valid reason, and doesn’t do that by way of process of reasoning referable to what was said in Selvachandran.

PN242

As to the balance of convenience issue I simply - - -

PN243

THE SENIOR DEPUTY PRESIDENT: Well what is it in Selvachandran in particular that I need to have regard to, to test whether there’s an arguable point due to ..... legal error?

PN244

MR GINTERS: Well your Honour would test it against the proposition, the finding there by Northrop J of what is constituted by a valid reason, and the reference to that is found in 62 IR 371 to 373.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes.

PN246

MR GINTERS: One would test it by, as I’ve ..... to do before your Honour this afternoon, go through her Honour’s reasons for decision; look at the adverse findings, the findings of unacceptable conduct and intimidatory and threatening conduct; view those findings against a backdrop of a litany of examples of that in the past; and then ask oneself when one finds that an employee engages in unacceptable conduct; and when one finds the person engaged in conduct that’s designed to threaten and intimidate employees; and one finds that an employee refers to fellow employees as, “Corrupt as shit, man” et cetera and the outburst of Mr Vrettos at the conclusion of 7 March 2007; and then ask oneself that, relying on those reasons, relying on findings that there was unacceptable conduct, that there was in appropriate language, that there was conduct that was designed to threaten and intimidate; asks oneself if, relying on those matters, an employer has a sound, defensible or well reasoned basis for terminating employment; and the conclusion, with respect, is yes.

PN247

THE SENIOR DEPUTY PRESIDENT: Well it depend on the facts quite often. I mean, I’m not immediately sure of a case which brings together each of those findings but there are certainly decisions where unacceptable behaviour has been found, but found not to provide a valid reason for termination.

PN248

Similarly with inappropriate language, in terms of what you say about threatening, intimidatory language, I can’t recall any immediately; there may well be. It’s the combination that you’re relying on here but all that shows is that it’s really applied to the particular facts, does it not?

PN249

MR GINTERS: Well yes, I can’t get away from the factual context and what your Honour is doing is the bifurcation that your Honour suggests, which is there might have been findings of unacceptable behaviour but that does not constitute a valid reason in one case; or there might be findings of inappropriate language in another case that didn’t justify a termination - - -

PN250

THE SENIOR DEPUTY PRESIDENT: Or indeed combinations, yes.

PN251

MR GINTERS: Well no, one is driven back to the combination in this case.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes.

PN253

MR GINTERS: But all the more so, one is driven back to the combination when, as her Honour said she was able to do, one has regard to this person’s disciplinary history, which is just littered with this type of conduct. This is not a cleanskin, with respect, who has a brain explosion on one occasion. This is an employee who has a repeated history of when things don’t go his way, engaging in threatening, intimidating and harassing conduct.

PN254

The question which the Commission has to ask itself, the proper question which the Commission has to ask itself is, in light of those factual findings being made - no dispute about the facts; there can’t be a dispute because the findings were made - the conduct was unacceptable. The language was inappropriate. The conduct was conduct that was designed to threaten and intimidate a person. It begs the question why in those circumstances, against the backdrop, is there not a sound defensible or well reasoned basis for a termination? We say her Honour erred in not finding that there was.

PN255

Can I say just briefly, your Honour, as to balance of convenience. My learned friend’s submission was put this way, that the Commission would view with some suspicion the question of the medical assessments. Well it’s very easy to stand at the bar table and make such a submission; not so easy to put that question or put that proposition to a witness in the witness box, which my learned friend did not do. He didn’t put to this witness that the medical assessment process was a ruse, just designed to avoid the orders made by the Commission.

PN256

One only needs to be reminded at paragraph 8 of Mr Powell’s affidavit, and I’ll read it to you:

PN257

Mr Vrettos is due for a medical assessment. Without that medical assessment and a certification that he is fit, he cannot perform rail safety work. The assessments are required under the Rail Safety Act 2000. As a duty manager Mr Vrettos would be carrying out rail safety work so it is necessary for him to have an assessment before he returns to his duties.

PN258

Those are, with respect, the submissions on behalf of - - -

PN259

THE SENIOR DEPUTY PRESIDENT: Well that was based on the proposition that he was advised that Mr Vrettos was due for an assessment.

PN260

MR GINTERS: Yes.

PN261

THE SENIOR DEPUTY PRESIDENT: Nothing beyond that. He wasn’t making any indication of any basis for that view, on behalf of - - -

PN262

MR GINTERS: No, with respect, your Honour. No, with respect, your Honour, because when one looks at WP1, which is the printout of the assessments of Mr Vrettos, they demonstrate that in the period since 2004 there were nigh on or near on yearly assessments. Mr Powell’s evidence was that Mr Vrettos was due for an assessment in or about September 2007. That did not occur. If he’s going to go back into work and perform rail safety work, RailCorp has a statutory obligation to ensure that he was fit to do that work, hence the requirement that he attends the medical assessment.

PN263

THE SENIOR DEPUTY PRESIDENT: Well it’s not a question of whether he is due for one but whether he was required under the Safety Act at that point in time, before resuming his duties.

PN264

MR GINTERS: Mr Powell’s evidence is that his understanding is he was required to have one because he was in a program whereby he was having annual assessments. Now I can’t put it any higher than that, your Honour.

PN265

THE SENIOR DEPUTY PRESIDENT: Yes.

PN266

MR GINTERS: Because Mr Powell gave evidence that he is not privy to what the results of those medical assessments are, for confidentiality reasons. But when one looks at the material or the computer screen dump and the enquiries that he has made, they were ..... he formed the view he required an annual assessment before he could undertake before he could undertake that rail safety work.

PN267

THE SENIOR DEPUTY PRESIDENT: What is the point of all this, by the way, in terms of the stay? You are saying that’s another factor why the balance of convenience - - -

PN268

MR GINTERS: No, your Honour. I’m sorry.

PN269

THE SENIOR DEPUTY PRESIDENT: I can’t follow that. I can understand if Mr Joseph were in the court somewhere arguing Blackadder.

PN270

MR GINTERS: Yes.

PN271

THE SENIOR DEPUTY PRESIDENT: But that’s not what we are doing here.

PN272

MR GINTERS: No, and perhaps I’ve spent too much time focussing on the matter. It goes to two issues, your Honour. It goes to the question of why it is the case that Mr Vrettos has not been reinstated; why he hasn’t formally been given duties, albeit he has been paid. That’s really simply a matter of drawing to the Commission’s attention the position that my client has taken today.

PN273

But it also goes to the question of the rostering arrangements, that one needs to get the outcome of this medical assessment before one can move to the next stage which is rostering Mr Vrettos to work, on the assumption that he is certified fit to perform work.

PN274

It goes squarely, your Honour, to this issue; the issue of at which point in time, assuming that the Commission is against us and a stay is not granted, when it would be able to have Mr Vrettos back on the job before - - -

PN275

THE SENIOR DEPUTY PRESIDENT: You say that’s relevant for the balance of convenience because it’s likely to be at a point of time where it’s unreasonable to put RailCorp to the cost and expense and the inconvenience of doing that, on the basis that the appeal may well have found that to be totally unnecessary short time labour; is that how you argue it?

PN276

MR GINTERS: Yes, that’s the submission, your Honour.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN278

MR GINTERS: Unless there is anything further, those are my submissions.

PN279

THE SENIOR DEPUTY PRESIDENT: Very well. I intend to reserve my decision. It won’t be a long decision and it will be delivered soon. But I might take the opportunity to confer in relation to the programming matter, and deal with that at the same time.

PN280

MR GINTERS: Yes.

PN281

THE SENIOR DEPUTY PRESIDENT: So I will now adjourn.

PN282

MR GINTERS: Thank you.

PN283

MR JOSEPH: Thank you, your Honour.

<ADJOURNED ACCORDINGLY [3.44PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

WAYNE MORRIS POWELL, SWORN PN21
EXAMINATION-IN-CHIEF BY MR GINTERS PN21
EXHIBIT #STAY RCNSW1 AFFIDAVIT OF WAYNE MORRIS POWELL OF 14 PARAGRAPHS AND THREE ATTACHMENTS PN28
CROSS-EXAMINATION BY MR JOSEPH PN30
THE WITNESS WITHDREW PN72