C2007/3890, Transcript of Proceedings [2008] AIRCTrans 64 (18 February 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18082-1

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER WHELAN

C2007/3890

s.120 - Appeal to Full Bench
Appeal by Smart, Tracy
(C2007/3890)

MELBOURNE

4.11PM, TUESDAY, 05 FEBRUARY 2008

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

Reserved for Decision

PN1

JUSTICE GIUDICE: I'll take the appearances. There's no need to stand when you announce your appearance. I'll start with Ms Smart; are you there Ms Smart?

PN2

MS T SMART: Yes, I am.

PN3

JUSTICE GIUDICE: Yes. You are appearing for yourself?

PN4

MS SMART: Yes, I am.

PN5

JUSTICE GIUDICE: Yes, and who is appearing for Australia Post?

PN6

MR T HARDMAN: Your Honour, Hardman for Australia Post.

PN7

JUSTICE GIUDICE: Yes, Mr Hardman. Are you an employee of Australia Post?

PN8

MR HARDMAN: No, your Honour, I'm a solicitor with Holding Redlich.

PN9

JUSTICE GIUDICE: Yes.

PN10

MR HARDMAN: Your Honour, can I thank the Commission and also Ms Smart for the indulgence in terms of deferring the hearing today, due to my requirement to appear in court.

PN11

JUSTICE GIUDICE: Yes, well Mr Hardman you, being a practitioner, need to seek leave to appear in these proceedings.

PN12

MR HARDMAN: Yes.

PN13

JUSTICE GIUDICE: Ms Smart, are you aware of that, that Mr Hardman needs to seek leave to appear and that, if you wish to, you can object to him appearing? If you do object then we will hear what everybody has to say about that and make a decision.

PN14

MS SMART: I'm not sure I understand.

PN15

JUSTICE GIUDICE: Yes, well what I'm trying to explain to you is that in Commission proceedings no party has a right to appear through a counsel or through an agent, unless there is agreement from the other side, or the Commission decides that it's appropriate that they be represented by a legal practitioner. So I'm alerting you to the fact that Mr Hardman needs to seek our leave to appear on behalf of Australia Post, and giving you an opportunity to object to him appearing.

PN16

MS SMART: No, that's fine.

PN17

JUSTICE GIUDICE: That's fine?

PN18

MS SMART: Yes.

PN19

JUSTICE GIUDICE: All right.

PN20

MS SMART: Yes, that's fine.

PN21

JUSTICE GIUDICE: Yes, thank you Ms Smart for that. Very well, leave is granted, Mr Hardman.

PN22

MR HARDMAN: Thank you, your Honour.

PN23

JUSTICE GIUDICE: Ms Smart, it's your application for leave to appeal. We have seen Commissioner Bacon's decision.

PN24

MS SMART: Yes.

PN25

JUSTICE GIUDICE: We have seen a number of other documents which were on the original file before the Commissioner. They include the decision of the Board of Reference on your application to the Board of Reference under the agreement, and some documents that went along with those proceedings. They include a record of interview with you and some other material including printouts of register transactions which were used in that Board of Reference proceeding. Do you know the documents I'm talking about?

PN26

MS SMART: Yes, I do.

PN27

JUSTICE GIUDICE: Yes, very well. We have also obtained copies of the submissions that you made to the Commissioner.

PN28

MS SMART: Yes.

PN29

JUSTICE GIUDICE: They were some submissions that were dated 7 November 2007, or at least they were received in the registry on that date.

PN30

UNIDENTIFIED SPEAKER: That was the appeal.

PN31

JUSTICE GIUDICE: They were done by Mr Taylor of the CEPU.

PN32

MS SMART: Yes, that's right.

PN33

JUSTICE GIUDICE: Yes, and then we've also got an outline of submissions. There are two lots of submissions from Australia Post, one lot were dated 29 October 2007. They were quite lengthy ones and they were filed before Mr Taylor's submissions, and then some shorter submissions by Australia Post on 14 November. They were three pages long.

PN34

MS SMART: Okay.

PN35

JUSTICE GIUDICE: I'm telling you this because you didn't file the material that you were required to file so we have taken steps to obtain this material, but we wanted to make sure that you know what we've got.

PN36

MS SMART: Okay.

PN37

JUSTICE GIUDICE: Do you understand that?

PN38

MS SMART: Yes, I do. Thank you.

PN39

JUSTICE GIUDICE: Yes, very well. All right then, Ms Smart, we are interested in your submissions as to why we should receive your appeal.

PN40

MS SMART: Well, I was unaware of the timeframes and I was disadvantaged by following the Australia Post appeals process, which made it out of the timeframe. I have been, I suppose, misrepresented by the union as they were unaware of the time limits as well. So that put me at a disadvantage as well, straight away, and that gave Australia Post the upper hand as they know the appeal process. They knew that going through the appeal process would finish, like, the end of time would be up before that all finished.

PN41

I did trust the union to represent me and I thought hat they would actually know what they were doing. But I have been told of a case, Cian Pamela Breen v Virgin Blue Airlines Pty Ltd.

PN42

JUSTICE GIUDICE: Yes, what is the name of that case?

PN43

MS SMART: Sian Pamela Breen, B-r-e-e-n v Virgin Blue Airlines Pty Ltd.

PN44

JUSTICE GIUDICE: Yes.

PN45

MS SMART: That was case number 2007AIRC833, and they did grant the extension of time in similar circumstances as to mine.

PN46

JUSTICE GIUDICE: Yes.

PN47

MS SMART: What I'm really seeking is really for Post to find out who really did do these things, because I know it wasn't me and they really need to stop that person who did the wrong, because two other things have gone missing from the office. I don't know whether they have gone since I left or not, but other things have disappeared from the office while I was on holidays and stuff, or working in the office, and like they can't even prove that I was in the office at the time of these offences, because the camera wasn't working on that day coincidentally.

PN48

It's also, like, a practice, though not a common practice, for the person that was doing the acting - managing in the office on that day, to use other peoples' terminals or get them to use hers, while she takes phone calls and does other jobs and stuff like that. So that's all I have. Thank you.

PN49

JUSTICE GIUDICE: Now you say that they can't prove you were in the office on that particular day.

PN50

MS SMART: That time of the offence. Yes.

PN51

JUSTICE GIUDICE: So you say you weren't there, do you, or you just say they can't prove it?

PN52

MS SMART: Well, I can't honestly remember that day so I don't know where I was or what I was doing at those times.

PN53

JUSTICE GIUDICE: Well, you would know, wouldn't you, if you were on leave or something like that?

PN54

MS SMART: Well I was there on that day but what I'm saying is I don't know if I've, you know, ducked out to the ladies or something at that time of the money was taken out of my Advance, and everyone had access to the Advance. Everyone knew the codes and stuff.

PN55

JUSTICE GIUDICE: Yes, all right. You said in relation to the delay in filing that the union was unaware of the time limits.

PN56

MS SMART: That's correct.

PN57

JUSTICE GIUDICE: Yes.

PN58

MS SMART: They only found out about it when they had a hook-up with their solicitors and they said that you'd only have 21 days to - what do they call it? To file - to appeal the decision.

PN59

JUSTICE GIUDICE: Yes.

PN60

MS SMART: As soon as he heard that they went straight away, I believe, that day and put an application in.

PN61

JUSTICE GIUDICE: Yes. Did you ask the union to come along and give evidence about that to the Commissioner?

PN62

MS SMART: They represented me to Commissioner Bacon. Yes, they were there.

PN63

JUSTICE GIUDICE: Yes.

PN64

MS SMART: They said that, yes.

PN65

JUSTICE GIUDICE: In the earlier time when you got the letter from Australia Post, at the time that they terminated your employment.

PN66

MS SMART: Yes.

PN67

JUSTICE GIUDICE: Did you ask the union at that time what the time limit was for filing an application in the Commission?

PN68

MS SMART: Well, no, because I thought they were all talking about going with the Australia Post appeals.

PN69

JUSTICE GIUDICE: Yes.

PN70

MS SMART: I said to the union, "What do I do now? You know, what do I do?"

PN71

JUSTICE GIUDICE: Yes.

PN72

MS SMART: They told me to go and do the Australia Post appeals.

PN73

JUSTICE GIUDICE: I see, but you didn't actually ask for advice about the time limit under the Workplace Relations Act?

PN74

MS SMART: Well, I didn't know anything about it until it was too late.

PN75

JUSTICE GIUDICE: Yes.

PN76

MS SMART: Because I thought, you know, if I needed to do anything else the union would have told me, because I've never had to do anything like this before.

PN77

JUSTICE GIUDICE: It's just that the letter drew your attention to the fact that there were time limits if you wanted to do something under the Workplace Relations Act. So I was interested to know whether you had specifically asked the union or anybody else what those time limits were.

PN78

MS SMART: No, I just blindly trusted the union and believed that they knew what they were doing.

PN79

JUSTICE GIUDICE: Yes. So it's your submission, is it, that the union didn't know that they had to file an application in the Commission within 21 days?

PN80

MS SMART: Well, if they told me that is what I had to do, then I would have done it, yes.

PN81

JUSTICE GIUDICE: Yes.

PN82

MS SMART: Because I said to them, like, "I don't know what to do. What do I do? I need your help. Tell me what I've got to do".

PN83

JUSTICE GIUDICE: Yes.

PN84

MS SMART: Then I asked them what, you know, what this letter means and stuff.

PN85

JUSTICE GIUDICE: Yes, I'm just trying to clarify how this happened. You said to me earlier that the union was unaware of the time limits until they spoke to their solicitor, after the Board of Reference proceedings.

PN86

MS SMART: Yes.

PN87

JUSTICE GIUDICE: Do you remember saying that to me?

PN88

MS SMART: Yes.

PN89

JUSTICE GIUDICE: Yes.

PN90

MS SMART: They didn't know they only had 21 days.

PN91

JUSTICE GIUDICE: I see. All right.

PN92

THE COMMISSIONER: Ms Smart, there were submissions made in writing; was there any proceedings in front of Commissioner Bacon himself or was it all done by written submissions?

PN93

MS SMART: Do you mean these typed things?

PN94

THE COMMISSIONER: Yes, was there any evidence? Did you appear in front of Commissioner Bacon and give evidence or was everything done by written submissions?

PN95

MS SMART: It was all - the union spoke on my behalf. We were before him in a room similar to this and the union represented me at that time.

PN96

THE COMMISSIONER: Right.

PN97

MR HARDMAN: Commissioner, can I assist you with that?

PN98

THE COMMISSIONER: Yes.

PN99

MR HARDMAN: Commissioner, there was a form of conciliation convened prior to Commissioner Bacon making a determination on the papers and pursuant to written submissions after that conciliation.

PN100

THE COMMISSIONER: Right.

PN101

MR HARDMAN: So the decision in respect of the refusal to extend time is a decision that has been made without a hearing.

PN102

THE COMMISSIONER: Right. I thought that was the case and I was just trying to confirm that that was what had happened. Thank you.

PN103

MR HARDMAN: Thank you.

PN104

JUSTICE GIUDICE: Is there anything you want to add, Ms Smart, as a result of those questions we have asked you?

PN105

MS SMART: No, I don't think so.

PN106

JUSTICE GIUDICE: No.

PN107

MS SMART: Thank you.

PN108

JUSTICE GIUDICE: All right. Mr Hardman?

PN109

MR HARDMAN: Thank you, your Honour. I have filed some submissions which I trust are before the Full Bench?

PN110

JUSTICE GIUDICE: Yes, we have those. Has Ms Smart had a chance to look at those, do you know?

PN111

MS SMART: They are the email ones?

PN112

MR HARDMAN: Yes.

PN113

MS SMART: Yes, I have.

PN114

JUSTICE GIUDICE: Yes, very well.

PN115

MR HARDMAN: Your Honour, I can speak to certain parts of those submissions. I wonder firstly are there any particular matters which the Full Bench would like me to address specifically?

PN116

JUSTICE GIUDICE: There was one thing that I thought required a little bit of explanation. Your submission is that the notice of appeal was lodged out of time.

PN117

MR HARDMAN: Yes.

PN118

JUSTICE GIUDICE: But I understand there was actually an application lodged within time seeking an extension of time within which to appeal; is that right?

PN119

MR HARDMAN: That may be the case, your Honour. The difficulty that we have is that the respondent in fact was not served with any of the material, including if it was an application for an extension of time, which may have been filed on 19 December. What we have been provided with, which we obtained from the registry file, is a notice of appeal which was filed on 21 January 2008.

PN120

So those submissions made in respect of the requirement for the applicant to seek an extension of time are made with the caveat that if indeed there was something filed on 19 December, what that was we are not sure, but if something was filed on 19 December then that would have been the last day for the filing of the document; and the Commission may decided to dispense with the rules so far as the requirement for a notice of appeal to be filed in the appropriate form by that time. I can take instructions on that and that would probably be something to which we would not take any objection. I have instructions.

PN121

JUSTICE GIUDICE: Yes, well there was an application for an extension of time for instituting an appeal, in accordance with Form R2 of the Commission's rules received by fax on 19 December at 5.22.

PN122

MR HARDMAN: Yes.

PN123

JUSTICE GIUDICE: It's a fairly simple document, I must say. Anyway, it appears to the registry records that it was received on that date and at that time.

PN124

MR HARDMAN: Yes.

PN125

JUSTICE GIUDICE: It certainly changes the complexion of the submission about an extension of time for instituting an appeal.

PN126

MR HARDMAN: Yes, well I won't pursue that submission on that basis, your Honour.

PN127

JUSTICE GIUDICE: Yes, very well.

PN128

MR HARDMAN: Can I frame the respondent's submissions in this regard. Notwithstanding that there may not be an issue remaining concerning the extension of time, the respondent's submission in this case is that its objection really hangs or falls on what the Full Bench decided, in terms of whether or not there is any appellable error disclosed in the reasons of Commissioner Bacon.

PN129

The respondent's submission is that there is no appellable error, that there is no indication on the face of the reasons of Commissioner Bacon which indicate that his discretion has miscarried in any way. I say that not only from the point of view, your Honour, that the notice of appeal itself does not disclose that; it need not necessarily disclose that. But I say that from a proper reading of Commissioner Bacon's reasons.

PN130

The notice of appeal itself - and I understand of course that the applicant is unrepresented - but what the notice of appeal is really inviting the Full Bench to do is to revisit the merits of the matter, without any analysis of the reasons given by Commissioner Bacon and the identification of any appellable error within those reasons.

PN131

In the submissions, your Honour, we go through Commissioner Bacon's reasons and, with respect, make the submission that there is no indication from those reasons that there is any error; and that the discretion, which it was, a pure discretionary matter, was exercised properly in this case.

PN132

That exercise of discretion also in this case comes on the back of a disciplinary inquiry that was conducted by an inquiry officer. That inquiry officer interviewed the applicant. It also interviewed other persons who were present at the store at the time of the incident. It came to certain conclusions, an inquiry report was prepared, a recommendation was made to the delegate. The applicant then had an opportunity to meet with the delegate before the delegate acted on that recommendation. Ms Smart did meet with the delegate and subsequent to that the decision was made to terminate Ms Smart's employment.

PN133

Following that of course, as we know, there was another tier of review before the Board of Reference, at which Ms Smart had representation. She had there an opportunity to give evidence and to present her case and the Board of Reference of course came to a decision, affirming the decision of the delegate to terminate the employment; or at least coming to the conclusions that that process was not harsh, unfair or unreasonable.

PN134

So this is not a case, your Honour, whereby Ms Smart comes before you without having had the opportunity to present her case. That really appears to be a thrust of what Ms Smart is asserting in the notice of appeal, that she disputes the allegations that have been made and that she has not had the opportunity to present her case. The respondent's respectful submission is that there has been sufficient opportunity to present that case; that procedural fairness has been extended in this case; and that there is otherwise, with respect, no discernible error in the discretion that has been exercised by Commissioner Bacon to refuse the application for extension of time.

PN135

JUSTICE GIUDICE: Yes, Mr Hardman, are you able to tell me what the basis of the Board of Reference proceeding was and what the jurisdiction of the Board was?

PN136

MR HARDMAN: Yes. The Board of Reference, your Honour, is constituted under the EBA6.

PN137

JUSTICE GIUDICE: Yes.

PN138

MR HARDMAN: So that is its genesis, that is its basis. That gives it its jurisdiction and its jurisdictional limits are set out in that document. What it has the jurisdiction to do is to review the decision determinate and the processes leading up to that decision, to make a finding as to whether or not that decision was harsh, unfair or unreasonable.

PN139

JUSTICE GIUDICE: Yes. You don't know - - -

PN140

MR HARDMAN: You may not have EBA6.

PN141

JUSTICE GIUDICE: No. Well, I don't think we do. Perhaps we do. Do you know what the provision is?

PN142

MR HARDMAN: It's in one of the schedules to the EBA and I thought that I may have had a copy with me, your Honour, but if you just give me a moment.

PN143

JUSTICE GIUDICE: Yes, I see. There is provision for a Board of Reference in attachment A.

PN144

MR HARDMAN: Yes.

PN145

JUSTICE GIUDICE: In clauses 7 to 10.

PN146

MR HARDMAN: That's right.

PN147

JUSTICE GIUDICE: Is that the one?

PN148

MR HARDMAN: It is, your Honour. Yes.

PN149

JUSTICE GIUDICE: Yes, I see.

PN150

MR HARDMAN: The chairperson of that Board of Reference, your Honour, is an independent person. The person is not an employee of Australia Post and I understand that the chairman, the appointment of that office goes through a process of consultation with relevant unions.

PN151

JUSTICE GIUDICE: Yes, well the operative provisions seem to be of the nature which you describe, that:

PN152

The Board shall seek to resolve any application for review submitted to it, having regard whether the decision was harsh, unjust or unreasonable.

PN153

MR HARDMAN: Yes.

PN154

JUSTICE GIUDICE: That is at clause 9.

PN155

MR HARDMAN: Yes.

PN156

JUSTICE GIUDICE: Yes.

PN157

MR HARDMAN: So it's a de novo review, your Honour.

PN158

JUSTICE GIUDICE: Yes.

PN159

THE COMMISSIONER: Mr Hardman, does that Board of Reference then have the capacity to overturn the decision to terminate, if it determines that the termination was harsh, unjust or unreasonable, unfair or whatever the words are?

PN160

MR HARDMAN: Yes. Yes, my answer to that, without being able to refer you to any specific clause within the EBA, would be yes, Commissioner. Actually I just might take some brief instructions in relation to that. It's a matter of the Board making a - if the Board is to make a decision that the termination was harsh, unfair or unreasonable, then my instructions are that as a matter of policy the respondent, Australia Post, will always accept that decision of the Board and act upon it.

PN161

THE COMMISSIONER: So if the Board comes to that view it's then up to Australia Post as to whether Australia Post revokes the decision to terminate or confirms it; is that the process?

PN162

MR HARDMAN: That's correct. Yes, Commissioner.

PN163

THE COMMISSIONER: Okay, thank you. Mr Hardman, I just wanted to ask you a question in relation to that part of the decision of Commissioner Bacon where he dealt wit the issue of representative error.

PN164

MR HARDMAN: Yes.

PN165

THE COMMISSIONER: If I can take you to paragraph 11 of the decision, he says there, towards the end of that paragraph:

PN166

To the extent that the applicant relies on representative error there is an express direction from the Commission -

PN167

He is referring there to a decision of Acton SDP:

PN168

- to the applicant's representatives to ensure such error does not occur. It is self-evident that the CEPU has failed to meet the Commission's requirement in this regard.

PN169

Now he's referring there to a decision by Acton SDP, where she came to the view - and this is quoted in paragraph 9 of the decision:

PN170

I think it's reasonable for an employee to expect their union will correctly advise them in respect of termination of employment matters. The CEPU should take action to ensure that it does not repeat the incorrect advice it gave to Mr Norman.

PN171

Now as I understand it, the applicant's case is that in fact the CEPU did repeat that in that they failed to advise her, in accordance with the submissions that were made on 7 November, of any requirement to pursue an unfair dismissal hearing in the Commission. Why is that failure by the CEPU something that should be visited upon the applicant?

PN172

MR HARDMAN: My submission in respect to that, Commissioner, is that there is no cogent evidence to support the applicant's contention in that regard.

PN173

THE COMMISSIONER: But there was no evidence given at all, Mr Hardman, as I understand it. The process that was chosen to be followed by the Commission was that following a conciliation conference there were written submissions. Those written submissions say the applicant was not advised by either Mr David Callaghan or Mr Geoffrey Taylor, her representatives from the CEPU, of any requirement to pursue an unfair dismissal hearing. Now that's what is put in those submissions.

PN174

MR HARDMAN: Yes.

PN175

THE COMMISSIONER: There were, presumably, no directions to file any sworn evidence, sworn statements, and there was no oral evidence given.

PN176

MR HARDMAN: That's right, Commissioner. There was also, however, no cogent evidence that was presented to the Board of Reference and Commissioner Bacon had regard to the decision of the Board of - - -

PN177

THE COMMISSIONER: Sorry, but the Board of Reference wasn't dealing with what advice the CEPU may or may not have given her about whether she should make an application to the Commission. The Board of Reference was dealing with a different matter altogether.

PN178

MR HARDMAN: That's right. That's correct, but certainly on one basis if the applicant had any concerns about the quality of representation or the quality of advice that she was receiving from the union, matters could have been raised before the Board of Reference. But I accept what you are saying in that regard.

PN179

Commissioner, in reading Commissioner Bacon's reasons, it can't be disputed that yes Commissioner Bacon does make those observations in relation to the representative error issue. However I would submit, with respect, that the representative error issue was not the cornerstone on which his decision is based. He also makes the finding in relation to what was set out in the letter of termination and that the applicant in that letter of termination was advised of her rights under the Workplace Relations Act, and that she should seek external advice in relation to her remedies under that Act.

PN180

At the very highest, and leaving aside the question of any evidence in support of these assertions, what the applicant is asserting is really a case of omission on the part of the union, in terms of advice that was given. It wasn't a case of a misrepresentation or a misleading but it was a case, at its very highest, of admitting to give advice. In circumstances where the applicant herself, Ms Smart, has been advised in the correspondence that she should see what her remedies are under the Workplace Relations Act, the respondent says that the applicant is put on notice in relation to those potential remedies.

PN181

Having said all of that, notwithstanding that Commissioner Bacon does make those observations about representative error, that goes to the explanation of delay. But I would submit, with respect, that the findings that Commissioner Bacon makes in respect of the merits of the substantive application are more fundamental to the reasons that he provides and more fundamental to the exercise of his discretion.

PN182

THE COMMISSIONER: You are referring to paragraph 19, are you?

PN183

MR HARDMAN: Yes, 19 and 20.

PN184

THE COMMISSIONER: Thank you.

PN185

JUSTICE GIUDICE: Ms Smart, do you want to say anything else? You are fully entitled to make any comment you wish to, at this stage, about what Mr Hardman said including any of the questions that we have asked him. Is there anything else you want to say?

PN186

MS SMART: Well, in hindsight, I should have run out and got a solicitor and done it that way. But, you know, I thought I was doing right then.

PN187

JUSTICE GIUDICE: Yes.

PN188

MS MICHAEL: Your Honour, can I say something? I'm just a friend of Tracy's and I've had a read through these and I've seen - - -

PN189

JUSTICE GIUDICE: Yes, just a moment. Just a moment. What is your name?

PN190

MS MICHAEL: Amy.

PN191

JUSTICE GIUDICE: Yes, Amy what?

PN192

MS MICHAEL: I'm just a friend of Tracy's.

PN193

JUSTICE GIUDICE: Yes, but we would like your name, please.

PN194

MS MICHAEL: My last name? Amy Michael.

PN195

JUSTICE GIUDICE: Yes.

PN196

MS MICHAEL: Okay. I'm actually a friend of Tracy's. I'm not a lawyer or anything like that, but you know I'm purely here as support and through what I've read and through what I've seen, and through everything, she is not - she has been misrepresented by the union. So I mean somebody that gets terminated on the grounds of no evidence, okay fair enough they've gone through that and the union's represented it and it has gone to the court, and they have made the decisions and you have got to consider how she is feeling as well after that. I mean, everything puts that pressure on her to go out there and seek legal advice, after everybody has washed their hands from her and just have pretty much left a legal matter in her hands.

PN197

She has no job, no income. I mean, she has applied for Legal Aid and that's pending. So what we are actually here for is to seek some extension of time. Once she gets representation to actually do something about this, because her decisions have been made and she has no knowledge of anything because she is not a lawyer, for one, and she is not just going through trying to get her job back and prove that she didn't do something she was accused of. But also the fact of just being left in the lurch and trying to get legal representation.

PN198

So we are not disputing anything but Australia Post's decisions on what they have done. She had no advice given and she asked as well. I also spoke - who did I speak to? Geoff Taylor. So he has pretty much washed his hands from that, because of the decision made by Commissioner Bacon. But all this has led, because they have done it so fast forward with no evidence. There was no evidence that she actually committed that and coincidentally the cameras turned off(sic) on that day, which they couldn't use that as evidence. I mean, the only person that had access to that was the acting manager.

PN199

So it doesn't really take a genius to work out what has happened and the cause of this and Ms Smart not having any legal knowledge or the power or anything to take the next steps, after she has just been left in the lurch. Well, I don't know. So that's what we are asking for, an extension of time so she can have her say.

PN200

JUSTICE GIUDICE: Yes. Well, Ms Smart, in the Board of Reference proceedings or the hearing before the Board of Reference did you give any evidence in those proceedings?

PN201

MS SMART: Well, again, the union represented me there and I just answered questions that were asked of me.

PN202

JUSTICE GIUDICE: You were asked some questions? By the Board?

PN203

MS SMART: Yes, they asked me a couple of questions.

PN204

JUSTICE GIUDICE: Yes.

PN205

MS SMART: I can't remember off the top of my head what they were.

PN206

JUSTICE GIUDICE: Presumably they asked you some questions about the money and so on?

PN207

MS SMART: Yes. It's just, like, when I was interviewed by security, like I would say one thing to security and it's documented in the transcripts from security, and then I read the stuff from Post and it's, like, totally different, you know, from what I said in the transcripts.

PN208

JUSTICE GIUDICE: Yes.

PN209

THE COMMISSIONER: Did you see, Ms Smart, the transcript of interviews of other people interviewed by Australia Post? Because the only transcript that we have is the transcript of your interview, but it appears from the decision of the Board of Reference that other people were interviewed. Did you see the transcript of those interviews?

PN210

MS SMART: Yes.

PN211

THE COMMISSIONER: Right.

PN212

MS SMART: Yes.

PN213

JUSTICE GIUDICE: All right. Is there anything else?

PN214

MS SMART: No.

PN215

JUSTICE GIUDICE: No? Mr Hardman, can I just ask, who actually constituted the Board of Reference on this occasion?

PN216

MR HARDMAN: It was constituted by the chairman, who is Mr W J Rourke, R-o-u-r-k-e.

PN217

JUSTICE GIUDICE: Yes. Yes, I remember that now. He signed the - yes.

PN218

MR HARDMAN: Yes.

PN219

JUSTICE GIUDICE: The other members, as the Commissioner has pointed out to me, are set out at the top of the Board of Reference's decision.

PN220

MR HARDMAN: That's right.

PN221

JUSTICE GIUDICE: Yes, all right.

PN222

MR HARDMAN: Excuse me, your Honour.

PN223

JUSTICE GIUDICE: Yes, Mr Hardman.

PN224

MR HARDMAN: Can I just clarify that please? The Board of Reference is constituted only by Mr Rourke. The people appearing at the top of that decision, you will see the representatives for Ms Smart, two officers from the CEPU, and there were also some officers from Australia Post too, who gave evidence.

PN225

JUSTICE GIUDICE: Yes. Thank you for your submissions. It won't be possible for us to give a decision today unfortunately. We are going to reserve our decision to consider what has been put.

PN226

Thank you, Mr Hardman. Thank you, Ms Smart, and thank you, Amy. We will now adjourn, and there is no need to stand.

<ADJOURNED INDEFINITELY [4.53PM]