C2008/2062, Transcript of Proceedings [2008] AIRCTrans 752 (24 November 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19338-1

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER THATCHER

C2008/2062

s.120 - Appeal to Full Bench

Mr David William Hill
and
Downer EDI Mining
(C2008/2062)





Canberra

1.17PM, TUESDAY, 11 NOVEMBER 2008

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

PN1

SENIOR DEPUTY PRESIDENT WATSON: Yes, I’ll take appearances in the appeal. Mr Hill, you’re representing yourself?

PN2

MR D HILL: That’s right, yes.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes, and Mr Heelan you’re seeking leave to appear for the respondent?

PN4

MR T HEELAN: That’s correct, sir. I’m an industrial relations consultant and I seek leave to appear on behalf of the respondent, together with MS TONYA MILLER, the General Manager HR Western Region for Downer EDI Mining Pty Ltd. Our company has been involved in a representation at first instance as well. May it please the Commission.

PN5

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN6

Is there any objection to leave for Mr Heelan to appear as a representative, Mr Hill? You’re entitled to object and the Commission will determine whether that should occur.

PN7

MR HILL: Yes I do object to it. Yes.

PN8

SENIOR DEPUTY PRESIDENT WATSON: Yes, notwithstanding the involvement from the duration of this matter of Mr Heelan with the company?

PN9

MR HILL: Sorry?

PN10

SENIOR DEPUTY PRESIDENT WATSON: Notwithstanding Mr Heelan’s involvement, representing the company from the outset in this matter?

PN11

MR HILL: Yes, that’s right. I don’t agree that there should be anybody else involved.

PN12

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN13

All right, Mr Heelan if you could elaborate on your reasons for seeking leave or why you should be granted leave to appear.

PN14

MR HEELAN: Yes, certainly.

PN15

SENIOR DEPUTY PRESIDENT WATSON: Sorry, Mr Heelan, and this goes for you too Mr Hill, you can sit down when you’re giving your submissions. We can see you better that way.

PN16

MR HEELAN: Thank you, sir. If it pleases the Commission, our company has been involved in the representation of the respondent at first instance. We represented the respondent in the proceedings before Deputy President McCarthy where the appellant failed to attend. In our respectful submission this appeal raises the issue of there are public interest considerations, and in our respectful submission, our submission will be that in the public interest leave to appeal should not be granted. Further, as is probably self-evident to the Full Bench, Ms Miller is currently on maternity leave. She has a five-week old baby in her lap this morning. We’ve made arrangements in case the baby plays up, but Ms Miller has returned from maternity leave just for the purposes of this appeal this morning. We simply propose to put some very brief oral submissions by way of amplification of what has changed in our written submissions. May it please the Commission.

PN17

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN18

Mr Hill, anything further from you on that issue?

PN19

MR HILL: Not really. I can’t say - - -

PN20

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN21

Yes, we will grant leave, Mr Heelan.

PN22

MR HEELAN: Thank you, your Honour.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Mr Heelan, before we hear from Mr Hill, Mark Valance from your company forwarded some correspondence to my associate today which indicated that it might be relied on in today’s proceeding. What, if anything, do you want us to do with that?

PN24

MR HEELAN: Probably nothing at this stage, your Honour. This was an email sent to Mr Valance at our company on 6 November.

PN25

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN26

MR HEELAN: We forwarded it this morning to the Commission as a courtesy, I suppose, out of an overabundance of caution. We’re unsure as to whether or not the appellant proposed to in any way rely on that email.

PN27

SENIOR DEPUTY PRESIDENT WATSON: All right, so we’ll wait and see in respect of that. He may not rely on it at all.

PN28

MR HEELAN: It seemed a preferable course to us, your Honour, rather than attempting it to the Commission during the course of the appeal this morning.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Sure. Very well, we will wait and see if we need to consider that further. We have received, in compliance with directions, written submissions from Mr Hill which we will mark exhibit A1.

EXHIBIT #A1 WRITTEN SUBMISSIONS OF THE APPELLANT

PN30

SENIOR DEPUTY PRESIDENT WATSON: And submissions under cover of a letter from Mr Valance for the respondent.

EXHIBIT #R1 SUBMISSIONS FROM THE RESPONDENT UNDER COVER OF A LETTER FROM MR VALANCE

PN31

SENIOR DEPUTY PRESIDENT WATSON: The purpose of the hearing today is to hear brief oral submissions in support of those.

PN32

Mr Hill, we’ll start with you.

PN33

MR HILL: I’m going to probably just read out my statement, while I’ve got my wife to prepare for me; is that all right?

PN34

SENIOR DEPUTY PRESIDENT WATSON: Well you don’t need to read the statement. We have read the statement. It’s a really a matter if there’s anything you want to emphasise or add.

PN35

MR HILL: Right, thanks. Very well.

PN36

SENIOR DEPUTY PRESIDENT WATSON: The proposition you’re putting is that you did not receive either an email or letter advising you of the hearing, and were unaware of that and that is why you didn’t attend.

PN37

MR HILL: That’s correct, yes.

PN38

SENIOR DEPUTY PRESIDENT WATSON: You further go on to then outline a number of communications you had with Deputy President McCarthy, after receiving the letter asking you to explain your non-attendance; the 24 September letter. Finally, I think you went to a decision in Mackay v Khan’s Supermarket. That’s the essence of your submission?

PN39

MR HILL: Yes, that’s right. Yes.

PN40

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, and is there anything further you want to add or we will wait to hear from Mr Heelan and then respond to that?

PN41

MR HILL: I think more or less what you just said, but I mean if I could just emphasise, I mean, the public would like to know the truth and why I believe I was put off, you know. That reasons is going into - I don’t know whether to say them now or at a later court date, but just by getting the plane back down here and plane back up there and then getting put off when I was back down here again, you know, whereas, you know, it should’ve all happened up there. All my stuff was left up there and, you know, I was never told that.

PN42

SENIOR DEPUTY PRESIDENT WATSON: Yes, well the issue isn’t the termination itself but rather the failure to attend the conference and your explanation of not being there.

PN43

MR HILL: Yes, well I didn’t know about it. I mean, I wouldn’t have started the proceedings in the first place if I wasn’t going to be here.

PN44

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN45

MR HILL: What else can I say? That’s about it, you know, and everything you just read, just said. So, yes.

PN46

SENIOR DEPUTY PRESIDENT WATSON: All \right, well I’ll just check with my colleagues if there any questions of you and if not, we’ll move to Mr Heelan now.

PN47

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Mr Hill, just to ensure that I’ve got the correct sequence of events in this matter. I’m looking at your submissions and endeavouring to marry them with my understanding of the sequence of events. Was it the case that you were in Perth at around 20 August or were you away over that period of time?

PN48

MR HILL: I could’ve been away, but I would’ve been in touch with my wife by phone or - so, I’m not sure.

PN49

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see. All right.

PN50

MR HILL: I did have a couple of weeks’ work up north, so.

PN51

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Once you received the Deputy President’s advice of 24 August, as I understand your submissions at point 4, you immediately contacted Deputy President McCarthy’s office but only got an answering machine. Was that during a weekday or was that on a weekend?

PN52

MR HILL: ..... during a weekday because as far as I know they’re not open on the weekend.

PN53

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see. All right, and you also say that you sent several emails.

PN54

MR HILL: Yes, my wife does all that and yes, she’s here with me now and she can vouch for that.

PN55

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see. All right, and then you sent a further fax on Sunday 5 October?

PN56

MR HILL: Yes.

PN57

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: All right, and after that you received advice from Deputy President McCarthy to the effect that your matter had been dismissed; that’s correct?

PN58

MR HILL: I’m sorry, I didn’t hear that.

PN59

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: You then received Deputy President McCarthy’s decision saying that the matter had been dismissed?

PN60

MR HILL: We received something that said it had been dismissed.

PN61

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see.

PN62

MR HILL: And it had been listed as well, remember?

PN63

MRS HILL: Yes.

PN64

MR HILL: What did you do?

PN65

MRS HILL: He just said that, you know, that it had been dismissed under some section and - - -

PN66

MR HILL: Speak a little louder so they can hear you.

PN67

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: That’s all right, we can hear thank you.

PN68

MRS HILL: The letters I recall stated that under some section that it was decided that it was dismissed.

PN69

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see, and Mr Hill what did you do then?

PN70

MRS HILL: Sorry, I didn’t mean to interrupt there.

PN71

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: No, that’s all right.

PN72

MRS HILL: Do you mean as of this appeal?

PN73

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Well yes, I’m just interested to know what Mr Hill did after he received the advice from Deputy President McCarthy to the effect that the application had been dismissed.

PN74

SENIOR DEPUTY PRESIDENT WATSON: That’s the 8 October advice that the claim had been totally dismissed, as distinct from the earlier advice that the harsh, unjust or unreasonable element had been dismissed.

PN75

MR HILL: Yes.

PN76

SENIOR DEPUTY PRESIDENT WATSON: So it’s 8 October we’re talking about.

PN77

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Around 8 October what did you do?

PN78

MR HILL: We rang them up before the 8th of October. It must’ve been the 6th or the 7th, wasn’t it?

PN79

MRS HILL: It was actually I think the 25th of - the day that the letter came in the mail, which was the 24th of September.

PN80

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Yes.

PN81

MRS HILL: And it may well have been that day. I think it might have been the next morning, because it might have been too late to call the office, and I called and there was no - I got an answer machine and from there on David made calls and I decided to email from there on and also the fax that you mentioned and everything within that - because I knew we had seven days and we were quite annoyed that we didn’t know about it, and I knew that I had seven days, so we did everything possible to contact - - -

PN82

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: Once you had received the final advice, the decision from Deputy President McCarthy, to the effect that the application in its entirety had been dismissed, what did you do then?

PN83

MRS HILL: I think I - I can’t remember. I lodged the form to - - -

PN84

MR HILL: For the appeal.

PN85

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see.

PN86

MRS HILL: Yes, for an appeal against that decision.

PN87

SENIOR DEPUTY PRESIDENT O’CALLAGHAN: I see. All right, thank you.

PN88

SENIOR DEPUTY PRESIDENT WATSON: Yes, thanks Mr Hill.

PN89

Mr Heelan.

PN90

MR HEELAN: Yes, thank you, your Honour. In our respectful submission there has been no demonstration of any error or failure to take into account material circumstances on the part of the deputy president at first instance. As we apprehend it this is appears to simply be a case of the appellant now wanting to ventilate what he regards as the substantive issue, that is that he was unfairly dismissed. The respondent’s position respectfully is that leave to appeal should not be granted on the basis that it is not in the public interest for the following three reasons.

PN91

Firstly, there has been no demonstrated or even arguable case of appealable error, as we’ve outlined in paragraph 1A of our written submissions, and for the reasons outlined in paragraph 1B of those submissions. Secondly, the Commission at first instance exercised the discretionary power pursuant to section 657 of the Act and provided detailed reasons for doing so; and we respectfully submit that in so doing the deputy president came to a conclusion that was reasonably open to him. Thirdly, because of the significant resources in terms of the time of senior management representatives and the financial cost already required on the part of the respondent, that of course is in addition to the Commission’s time and resources.

PN92

In our respectful submission if the Full Bench is persuaded to grant leave to appeal, we would submit that the only manner in which the appeal could be successful is in the event that it can be demonstrated that there was an error in the decision making process on the part of the Commission at first instance. We submit the Commission at first instance appropriately exercised the discretionary powers available to it, as are outlined in our written submission. For example, as outlined in paragraphs 2 and 3 of our written submission. May it please the Commission, by way of summary the only matters not resolved at the time of the issuance of the 8 October letter related to the unlawful dismissal claim. The position of the respondent both at first instance and now is that those claims by the appellant are wholly without merit.

PN93

There is clearly a massive difference between the appellant’s version and the respondent’s version of the facts. We respectfully say that Mr Hill was given an opportunity to be heard, and that that was outlined in the final sentence of the Deputy President’s order of 18 August. A notice of listing was circulated two days later for proceedings on 23 September. Also, we say that the background outlined in the order of 8 October now sought to be appealed, in that the deputy president succinctly outlined all of the facts surrounding the exercise of the discretionary power in dismissing the application. We also note that as outlined in our written submission the appellant’s street address and email address are those which were included in his initial application to the Commission, and that the addresses to which the Commission circulated the order of 18 August, and the notice of listing issuing on 20 August regarding the 23 September conference - - -

PN94

SENIOR DEPUTY PRESIDENT WATSON: Mr Heelan, can I interrupt you in respect to that.

PN95

MR HEELAN: Certainly sir.

PN96

SENIOR DEPUTY PRESIDENT WATSON: I note in the decision of his Honour that he indicated that he - I think it was at paragraph 6, provided the notice of listing by post to the address listed in the application and an email was also sent. Can I just say that there’s no record in the Commission file of the notice of the conciliation conference having been sent by email. There is a record of it having been sent to the postal address and having been sent by facsimile to both yourself and directly to the company. Is that a material factor at all?

PN97

MR HEELAN: Your Honour, all I can say is that we received it by facsimile.

PN98

SENIOR DEPUTY PRESIDENT WATSON: Well that’s consistent with what is on the Commission file, and whereas there is record of emailing of later documents to Mr Hill, there is no record on the file of an email of the notice of listing to Mr Hill. Now the deputy president may have been relying on something not on the file but certainly there’s nothing on the file to suggest an email was sent.

PN99

MR HEELAN: May I have just one moment, please your Honour?

PN100

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN101

MR HEELAN: Thank you for the indulgence. All we propose to say in relation to that, your Honour, is that we know the postal address to which that notice of listing was sent - there had earlier been correspondence sent by the Commission and by us to that, and that was received, and there had later been correspondence sent to that. It seems to us that that postal address is valid. It seems to us that in any event the notice of listing as posted should have been received by the respondent - I’m sorry, by the appellant.

PN102

SENIOR DEPUTY PRESIDENT WATSON: Well, is should have been received good enough? The explanation of Mr Hill, is “Well look, I didn’t receive notice of the conference”. Isn’t the factual issue whether or not Mr Hill did receive notice of the conference?

PN103

MR HEELAN: We rely on the Deputy President’s account of that, your Honour.

PN104

SENIOR DEPUTY PRESIDENT WATSON: His account of that is that “Well, it was sent, and you received everything else sent to that address. I don’t accept that you didn’t get it”.

PN105

MR HILL: Can I say something, sir?

PN106

SENIOR DEPUTY PRESIDENT WATSON: Could you make a note, Mr Hill, and you’ll get an opportunity in a minute? But just make a note so you don’t forget it.

PN107

The situation is that the opportunity to provide an explanation was provided. Mr Hill’s explanation is “Look, I didn’t receive the notice so I didn’t know about it”. His Honour seems to have proceeded on the basis of a conclusion that Mr Hill did receive it and in those circumstances there was no acceptable explanation; rather than he didn’t receive it but that doesn’t constitute an acceptable explanation. There was a factual issue in dispute as to whether Mr Hill received the notice of the conciliation conference. Mr Hill certainly indicated he had not. That then raises, in terms of section 657, whether the reasonable opportunity to be heard entails an opportunity to bring evidence where there is a factual matter in contention. Do you have any position in respect to that?

PN108

MR HEELAN: Only to say, your Honour, that even if - and we don’t conceded this - but even if the appellant did not receive the notice of the listing of the conference of 23 September, he was still provided with a final opportunity by the deputy president in written correspondence which he received.

PN109

SENIOR DEPUTY PRESIDENT WATSON: He was provided an opportunity to explain why he had not attended and he gave an explanation which involved an assertion of fact , which was not accepted by Deputy President McCarthy. The question I’m asking you for a view on is whether the reasonable opportunity to be heard in those circumstances, where there is a factual issue in contest, would in terms of natural justice impale a requirement to provide an opportunity for Mr Hill to bring evidence as to whether or not he received the correspondence.

PN110

MR HEELAN: Yes, if I may have just a moment, your Honour?

PN111

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN112

MR HEELAN: Thank you. Again, thank you for that indulgence, your Honour. We are relying on the circumstances as outlined in the order of Deputy President McCarthy and in our respectful submission whether or not that notice of listing was sent to the appellant should be able to be ascertained from the Commission’s records, for example from Deputy President McCarthy’s chambers.

PN113

SENIOR DEPUTY PRESIDENT WATSON: But Mr Heelan that’s not the question, is it; whether it was sent to Mr Hill. The question is whether he received it. The records certainly indicate it was sent but they do not indicate it was received, and Mr Hill has asserted by letter in response to his Honour’s invitation, the proposition that it was not received and that’s why he didn’t turn up.

PN114

MR HEELAN: In our respectful submission the appellant had prior notice of the proceedings coming on, for example the earlier of it, and as the deputy president pointed out in his order dismissing, he could have become aware of the proceedings by access to either the newspaper or the Commission’s website.

PN115

SENIOR DEPUTY PRESIDENT WATSON: So your contention is that an applicant is obliged, in the absence of any notice, to read the daily law lists on the Commission’s website and/or newspapers, and hopefully in a timely enough manner to attend at the Commission at the appointed time?

PN116

MR HEELAN: Well, yes I suppose you would have to take me as saying that. I suppose the difficulty I’m in, your Honour, is that on my instructions we don’t make the concession that he just didn’t know about it. We have got some concerns about some of the things that have gone on in this matter, but we are relying on the circumstances as outlined in Deputy President McCarthy’s order. In terms of if the appellant did not receive the notice of listing for the 23 September proceedings, we would have expected a much greater effort on the part of the appellant in attempting to persuade the Commission at first instance. If it pleases the Commission.

PN117

SENIOR DEPUTY PRESIDENT WATSON: Yes. Anything further?

PN118

MR HEELAN: Yes, just briefly, your Honour. In conclusion, there was an affidavit provided by Mr Valance in relation to these proceedings. Mr Valance is in court this morning and available for cross-examination should that be desired.

PN119

SENIOR DEPUTY PRESIDENT WATSON: Sorry, that’s in your materials and that goes to the exchange of correspondence between himself and Mr Hill, as distinct from the receipt or otherwise of the notice of listing.

PN120

MR HEELAN: Yes sir.

PN121

SENIOR DEPUTY PRESIDENT WATSON: Does any of that impact directly on the receipt or otherwise of the notice of listing?

PN122

MR HEELAN: I don’t believe so.

PN123

SENIOR DEPUTY PRESIDENT WATSON: So - - -

PN124

MR HEELAN: I don’t believe so.

PN125

SENIOR DEPUTY PRESIDENT WATSON: So it’s really inferential that if Mr Hill had received all the other material, you say it’s reasonable to infer that he would have received the notice of hearing, of the conciliation conference?

PN126

MR HEELAN: That’s correct, your Honour.

PN127

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN128

MR HEELAN: In conclusion, we respectfully submit that both before and after the listing of the 23 September conference the appellant received communication from the Commission and from us, that had been sent to the addresses he provided in his application. Further, the respondent received the correspondence from the Commission dated 24 September 2008 in which the appellant was provided the final opportunity and 14 days to provide a reasonable explanation, prior to the Commission at first instance exercising its discretion to dismiss the application. For those reasons and those outlined in our written submissions, we respectfully submit that leave to appeal should not be granted, and in the event that leave is granted, that the appeal should fail.

PN129

MR HEELAN: We believe the last submission hinges on the fact that the appellant is providing a reasonable opportunity to be heard, may it please the Commission.

PN130

SENIOR DEPUTY PRESIDENT WATSON: Just to clarify one other matter, you mentioned the material sent by your firm and/or the company directly. None of that material specifically went to the conference, the conciliation conference or the date of hearing, is that correct?

PN131

MR HEELAN: I’m sorry, I missed the question, your Honour.

PN132

SENIOR DEPUTY PRESIDENT WATSON: None of the material sent by Mr Valance or whoever else from the oil company or directly from EDI to Mr Hill actually referred to the date of the conference, or the fact of the conference?

PN133

MR HEELAN: No, your Honour.

PN134

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well.

PN135

MR HEELAN: Thank you.

PN136

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Hill, in reply feel free to raise the matter you wanted to raise before.

PN137

MR HILL: Yes, I just wanted to say that as far as the mail is concerned, I mean there’s plenty of times that mail hasn’t - I haven’t got mail before that was supposed to come. I have had mail from other people that I have taken over to their letter box - and put in their letter boxes and I have picked up mail off the ground that belonged to other people as well. As far as I’m concerned, something important like that should be sent by certified mail where I sign it. That way you’ll know I’ll get it. I didn’t get that mail. So that’s all I wanted to say, sir.

PN138

SENIOR DEPUTY PRESIDENT WATSON: And anything else arising from what Mr Heelan has said?

PN139

MR HILL: Well, I believe it should be reheard but I just can’t do anything else about it besides the fact that I wouldn’t have started the proceedings in Perth if I wasn’t going to be there. My wife just said how can I just look the newspaper. Usually four cases take a couple of years to come, different periods, you know, months, years, whatever. You know, you don’t read the paper every day, you know, and at listings and stuff. Yeah, so - the last mail I got said it was dismissed and, yeah, it was - so that’s all I have to say, sir.

PN140

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN141

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Hill, when you say the last mail you got said that your application was dismissed, is that the advice you received around 18 August?

PN142

MR HILL: Yes.

PN143

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: And do you recall that advice saying that the application - or that a conference would be listed in the future?

PN144

MR HILL: No, sir.

PN145

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I see. All right. Thank you.

PN146

SENIOR DEPUTY PRESIDENT WATSON: Very well. I’m sorry, Mr Heelan, did you - - -

PN147

MR HEELAN: Yes, sir. The question that Senior Deputy President O’Callaghan just raised relates to the email that was sent to the Commission earlier this morning. I note that the appellant’s response was that in that order it was not clear in that a further conference would be listed and that, as we apprehend it, is consistent with the appellant’s position throughout.

PN148

I simply wish to draw on the attention of the Full Bench that there is a material difference between that correspondence and the order of the Commission given - just to - for a moment, please. In the correspondence sent by email to the Commission this morning, this was the correspondence which was initially forwarded to our office by the appellant on Thursday, 6 November in which the appellant refers to the order of the Commission, the initial order.

PN149

There are a couple of material differences. I’ll only go into the major one, and the major one is that the final sentence of the actual order does not appear in this version. That’s the final sentence in relation to a further conference being scheduled and if the Full Bench were to contrast that document with the actual order of the Commission, at paragraph 6 and I quote:

PN150

A conference regarding the claim that notice of termination was not provided and that the termination was unlawful will be listed.

PN151

And I conclude the quote, may it please the Commission.

PN152

SENIOR DEPUTY PRESIDENT WATSON: What do you want us to make of that and, secondly, do you want this in evidence; and, thirdly, if that’s the case wouldn’t it be better having in evidence the actual document sent to Mr Hill rather than a cut and paste of it, it seems?

PN153

MR HEELAN: Mr Hill sent it to us, your Honour.

PN154

SENIOR DEPUTY PRESIDENT WATSON: Yes. But what do you ask us to make of that?

PN155

MR HEELAN: Well, it just seems very odd that that version of the order has omitted from it the crucial final sentence in relation to further proceedings being listed and it seems to be on the basis of that that the appellant responded to Senior Deputy President O’Callaghan’s question in relation to not being aware of further proceedings being listed. That’s - I just raise it for the attention of the Full Bench, if it pleases the Commission.

PN156

SENIOR DEPUTY PRESIDENT WATSON: Yes. Could you bear with us for one moment? We might adjourn for five minutes.

<SHORT ADJOURNMENT [1.52PM]
<RESUMED [2.00PM]

PN157

SENIOR DEPUTY PRESIDENT WATSON: Yes. Thank you for that opportunity to have a brief discussion. We have decided we will reserve our decision in the appeal. We will publish a decision in due course and as quickly as possible and that will be provided to the parties. We will now adjourn.

<ADJOURNED ACCORDINGLY [2.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN SUBMISSIONS OF THE APPELLANT PN29
EXHIBIT #R1 SUBMISSIONS FROM THE RESPONDENT UNDER COVER OF A LETTER FROM MR VALANCE PN30