C2008/3276, Transcript of Proceedings [2008] AIRCTrans 770 (2 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19418-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2008/3276

s.120 - Appeal to Full Bench

Appeal by Australian Co-Operative Foods Limited t/as Dairy Farmers
(C2008/3276)





Sydney

2.16PM, THURSDAY, 20 NOVEMBER 2008

PN1

MR G MCGRATH: I appear on behalf of the appellant.

PN2

MR G GEORGE: I appear on behalf of the respondent.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr McGrath.

PN4

MR MCGRATH: It's the appellant's application for a stay, pending appeal and may I, with your leave, hand up a short outline of submissions, together with an open letter from Gary George and Company dated 13 November 2008 to Herbert Geer. In respect of that letter, may I simply indicate for the convenience, Senior Deputy President, that it records that since February 2008 and up to date and continuing, the respondent has been in alternate employment and is presently receiving an income of $1075.35 per week. That appears on the second page. From memory, the columns at the top indicate from February onwards.

PN5

THE SENIOR DEPUTY PRESIDENT: What's he currently earning again?

PN6

MR MCGRATH: $1075.35 and that's in the paragraph at the bottom there, about the second-last paragraph on the page.

PN7

THE SENIOR DEPUTY PRESIDENT: How does that compare to what he was earning?

PN8

MR MCGRATH: It's less, but nonetheless it's a sizeable amount in the interim. Would it assist if I was to give a short outline of the facts?

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN10

MR MCGRATH: Primarily the facts are these, that there was a violent incident at work involving the respondent and another co-worker. It was an incident when it was seen by an independent observer to be a pushing and shoving incident. It's the second incident involving the respondent and a co-worker. The first incident occurred some years earlier and that was an incident which was quite dangerous in this sense, after a fight or an altercation, what happened was that the respondent got on his forklift truck and pushed the co-worker with the forklift truck into a stack of crates, for which he received a final warning.

PN11

This is the second in the series of incidents. It was found that that was an unjust determination in this instance and that's contested on two bases. (1) the respondent's version of events leading up to it is this, he simply went to ask the co-worker for a new battery for his forklift truck. Without any provocation, on the respondent's version of events, and without any stated reason, the co-worker is said to have launched into him swearing quite profanely and punching him several times for no given reason whatsoever and then the independent observer, who was standing nearby all the time, saw preliminary discussions and turned when he heard this going on, saw none of that, just saw people pushing each other, and that's his version of events.

PN12

That is inconsistent with the respondent's version and his version is glaringly improbable. People do not come up to co-workers without some reason and launch into them swearing and punching without any stated explanation. The funny thing is, the respondent doesn't give any explanation. He simply says that's what happened. That, of itself, is glaringly improbable. What's more probable is that something was said which he doesn't want to disclose, or some conduct took place.

PN13

THE SENIOR DEPUTY PRESIDENT: I've just had a bit of a chance to have a look, obviously, at the case, only a preliminary examination, but the Senior Deputy President understandably, basically - she only had evidence from
two people, two witnesses who were actually present, the person who allegedly attacked the applicant - - -

PN14

MR MCGRATH: Mr Bonser.

PN15

THE SENIOR DEPUTY PRESIDENT: - - - wasn't called as a witness by either party.

PN16

MR MCGRATH: No.

PN17

THE SENIOR DEPUTY PRESIDENT: The applicant gave his version of events which was broadly, though not completely, corroborated by this observer. To win an appeal you would have to show that the conclusions the Senior Deputy President made essentially weren't open to her on the facts.

PN18

MR MCGRATH: Yes, were not open to her on the facts.

PN19

THE SENIOR DEPUTY PRESIDENT: She only has the evidence that she had and what you seem to be suggesting the Commission would embark on in an appeal, and I think the Commission would be rather loath to, is to go into some sort of speculation that, even though this was the evidence, we should say well, it's just not plausible. There must have been something else going on. We have no evidence about it but, you know, this isn't what people do.

PN20

MR MCGRATH: That's our submission.

PN21

THE SENIOR DEPUTY PRESIDENT: I'm not sure it's going to be terribly persuasive.

PN22

MR MCGRATH: May I address it further to say this. If a version of events is glaringly improbable, it need not be accepted and in this sense what has occurred is this, whilst there are the two versions of events, the independent witness who was at the back of his truck loading all the time, he was sufficiently close to hear everything. He did hear the scuffling, he did look across. What the respondent says happened before that was quite considerable yelling, swearing and punching, none of which the witness, who was standing nearby all the time, appears to have noticed, but that's only one ground of the appeal.

PN23

If it's glaringly improbable, the Commission wouldn't accept it. The assertion that it's consistent with the independent witness's evidence is not necessarily correct because the independent witness, who was present all the time, makes no mention of how this onset of this incident occurred. The only evidence on that is the appellant's evidence and it is glaringly improbable, that is, that someone, for no reason, out of the blue, swore, yelled and punched him, then grappled him and then at that stage and only then did the independent witness apparently, on the respondent's version, hear anything. That's a factual ground.

PN24

The other ground is this, that the Commission below failed to take any account of the prior incident and said it wasn't relevant. That's in paragraph 30 of the reasons for decision. On page 10 it's stated quite frankly, "I do not believe that matter is relevant."

PN25

THE SENIOR DEPUTY PRESIDENT: There is a reason for that, isn't there, that the Senior Deputy President said that.

PN26

MR MCGRATH: There are no reasons given here.

PN27

THE SENIOR DEPUTY PRESIDENT: Paragraph 13 of her decision:

PN28

I have had regard to an earlier incident referred to by Dairy Farmers ..... Mr Ashrafi's ..... employment. I do not believe that the matter is relevant.

PN29

You've then got to read the next sentence:

PN30

I have found that there was no misconduct of Mr Ashrafi ..... engaged in an unacceptable behavioural standard. In those circumstances prior history cannot be relevant.

PN31

She then says:

PN32

But in any event I have determined it is not a matter of significance.

PN33

What she found was that there was no misconduct. Essentially what she found was that the applicant had done nothing wrong, so, you know, it seems perfectly reasonable, doesn't it, that - if you say that somebody had a warning for misconduct in the past, then they're accused of another incident of misconduct, but in fact you find that there was no misconduct the second time, why would you then turn around and say, "Yes, but they'd done something wrong before," so what? I mean, in what way could it be relevant?

PN34

MR MCGRATH: It couldn't in those circumstances but it's interdependent with the first finding and if you succeed on the first finding, then the second one comes into account.

PN35

THE SENIOR DEPUTY PRESIDENT: It would, but only if you found there was misconduct.

PN36

MR MCGRATH: That's so, but the misconduct doesn't need to be provoking the incident. The misconduct can be sufficiently continuing the incident and here the evidence of the independent witness is in contradiction to the respondent's evidence in the sense that the witness says the respondent worker could have walked away. If the Commission below accepted that, then what you have here is an incident which could have been finished earlier or not escalated and in light of the previous quite serious incident, it would be sufficient grounds, having got a formal warning as a final warning, that a worker continued an incident beyond what was reasonable.

PN37

THE SENIOR DEPUTY PRESIDENT: There are two issues. One is whether in itself - if somebody comes and attacks you unprovoked, which is essentially what I think the Senior Deputy President found, then whether you walk away or not at the first possible instance, whether that constitutes misconduct is a sort of moot point. Possibly it does but not necessarily, I'd have to say. In the circumstances if someone comes out of the blue and thumps you and then you say, "Well, you didn't run away and because you didn't run away, we're going to sack you," I have to say that's not an obviously forceful argument but she also found that in fact that's not what happened.

PN38

MR MCGRATH: No, but if you were found to have pushed someone back and continued a struggle backwards and forwards when you could have done something to remove the incident from escalating, in the circumstances where you had this serious misconduct on a prior occasion, that would be sufficient grounds to terminate an employee.

PN39

THE SENIOR DEPUTY PRESIDENT: Possibly.

PN40

MR MCGRATH: Anything I say is our submission.

PN41

THE SENIOR DEPUTY PRESIDENT: I don't necessarily assert it but I think the Senior Deputy President actually found that - you know, it's true that I appreciate this - well, this is interesting because the independent witness, Mr Sinemoglou?

PN42

MR MCGRATH: I can't get it either, it's Mr Sinemoglou.

PN43

THE SENIOR DEPUTY PRESIDENT: All right, you know who it is. He actually in his written statement I think he said that the applicant was being held but under cross-examination he more sort of suggested that they were pushing and shoving.

PN44

MR MCGRATH: Giving as good as they got, I think.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, so it would suggest that he could have got away.

PN46

MR MCGRATH: Yes, but in circumstances where you're on a final warning for something which fortuitously didn't result in a far more serious injury to a fellow worker, pushing someone with a forklift truck into a stack of crates, then not leaving an incident when you've got a reasonable opportunity to do it, but continuing it on, is something which would seriously be taken into account by an employer. It's the second incident of violence in not a lengthy period of time, a number of years, involving the same employee and the first one was quite severe.

PN47

THE SENIOR DEPUTY PRESIDENT: The Senior Deputy President actually found that in fact he couldn't get away, I think is right, isn't it?

PN48

MR MCGRATH: Paragraph 32 I think it is - or 31, I think the Senior Deputy President postulated an alternative version of events on the facts and found that even if he could have, it wouldn't have mattered.

PN49

THE SENIOR DEPUTY PRESIDENT: She said:

PN50

Had I determined Mr Ashrafi had not withdrawn from the fight at the earliest possible moment ...(reads)... without a reason.

PN51

I think she actually found that's not what happened anyway.

PN52

MR MCGRATH: No, it's by implication in paragraph 32 that she found he did not have the opportunity. That's by implication from what you said.

PN53

THE SENIOR DEPUTY PRESIDENT: Is that the only reference to it? I'm sorry, I haven't had a chance to fully absorb the decision. She said in paragraph 32:

PN54

I'm satisfied Mr Ashrafi was attached by Mr Bonser. Mr Ashrafi did not provoke him ...(reads)... to extract himself earlier than when he did.

PN55

MR MCGRATH: Yes, paragraph 35 is the same as well.

PN56

THE SENIOR DEPUTY PRESIDENT: That was her finding. Again, the problem obviously of the appellant is going to be that the Commission is generally pretty loath to - when the Commission at first instance has had the opportunity to see the witnesses examined, to actually - these are the conclusions she drew based on the evidence before her. Unless it wasn't open to her to draw that conclusion, it's going to be pretty hard to overturn that, I have to foreshadow, to put it mildly.

PN57

MR MCGRATH: Yes, but what is not so clear is the onset of the incident. All that's said about that is a vague defamation of Mr Bonser, the other employee involved in the incident who was unlikely to have helped anyone if they called him since he was dismissed by one and beaten by the other. He was not likely to be necessarily a positive witness.

PN58

THE SENIOR DEPUTY PRESIDENT: Her Honour didn't make any inferences either way. I think the failure of either party to call him, she didn't make any inferences.

PN59

MR MCGRATH: What was said about Mr Bonser in his absence was some vague assertion that he's a racist and that for some reason he had - that seems to be the only thin thread of rationale as to why this incident occurred. Assuming he was a violently racist human being at work and another fellow worker from Afghanistan came up to him, it's still not credible that without some provocation or some conduct on the part of Mr Ashrafi that what he described would have taken place.

PN60

THE SENIOR DEPUTY PRESIDENT: We don't know, do we? We don't know what provoked the incident. I agree that presumably something did but we don't know that it was anything that was - there's no evidence, is there, that it was some fault on the part of the applicant.

PN61

MR MCGRATH: Well, it's more reasonable than that it simply just took place.

PN62

THE SENIOR DEPUTY PRESIDENT: Why is it more reasonable? Something must have triggered it, I appreciate. It's pretty unlikely - people don't usually go up and start belting - however unpleasant and racist, et cetera, they are, they don't usually go up and start belting somebody they work with for no reason at all. Taking that as reasonably logical, there must have been something that triggered it, you would think. We don't know, but there's no evidence on what that was. It's likely that something triggered it but we have no reason to believe that it was the fault of the applicant, you know, whatever it was that triggered it was his fault. It might have been somebody else who wound this guy up. It might have been something that the applicant said, it was very mild or innocent. We don't know. There's no evidence on that, is there?

PN63

MR MCGRATH: No, there's not.

PN64

THE SENIOR DEPUTY PRESIDENT: So I don't know that we should start inferring that he must have done something wrong to provoke it.

PN65

MR MCGRATH: That's the most reasonable inference, though.

PN66

THE SENIOR DEPUTY PRESIDENT: Why?

PN67

MR MCGRATH: That he did something because - - -

PN68

THE SENIOR DEPUTY PRESIDENT: We don't know that it was anything at all improper or - - -

PN69

MR MCGRATH: We do know that he hasn't given any evidence about it.

PN70

THE SENIOR DEPUTY PRESIDENT: Was he asked?

PN71

MR MCGRATH: He had the opportunity. He gave a statement several times about what happened in this incident. He gave a statement to his employer about what happened in this incident and he proffered no explanation as to why it occurred. Admittedly, it's got to be drawn on the facts as they are but on the facts as they are, the Commission is not going to believe something which is improbable. It's going to accept what is the most reasonable thing.

PN72

THE SENIOR DEPUTY PRESIDENT: But you're saying it must be most reasonable. Even though there's no evidence, he must have done something wrong to provoke this.

PN73

MR MCGRATH: In the absence of a reasonable explanation, that's an easier inference to draw.

PN74

THE SENIOR DEPUTY PRESIDENT: I have to tell you that's not very persuasive. He may not have done anything. We have no idea. Somebody else may have said, "Did you know what so-and-so" - we know that people, unfortunately, get attacked by other people for not good reason. You can't assume that because he was attacked it must have been his fault if there's no evidence to that effect. You're saying the only reasonable conclusion you can draw is that he must have done something wrong to provoke it because otherwise, why did it happen?

PN75

MR MCGRATH: I'm not suggesting it was wrong at first instance, but he must have done something. More likely than not, it was he who caused the - - -

PN76

THE SENIOR DEPUTY PRESIDENT: All right. I'll tell you - - -

PN77

MR MCGRATH: I'm not arguing the appeal at this time.

PN78

THE SENIOR DEPUTY PRESIDENT: No, of course. You have to establish an arguable case, though, for leave to appeal being granted and the appeal being successful.

PN79

MR MCGRATH: I'll address that further in the submissions as well.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, all right

PN81

MR MCGRATH: The critical thing, of course, is that the timing is not such that much, if anything, could have occurred before Mr Sinemoglou saw the pushing and shoving. He says he continued loading his truck. He saw them pull up, he heard them talking, couldn't hear what they were saying, but could hear them just talking. What happened after that, according to the respondent is that there was yelling, screaming, swearing and punching and Mr Sinemoglou saw and heard none of that and he was in the same position as he was, loading his truck, when he heard them pull up and just talk in a normal voice about a new battery being needed and coming back later. It stretches the imagination to say that this incident occurred in the way in which the respondent asserts.

PN82

Can I deal with the issues of reinstating the respondent before the hearing of the appeal and in that regard, firstly, it adversely affects the ability of Dairy Farmers to enforce and maintain discipline in relation to matters of violence if, as Dairy Farmers contends, their version of events is correct. That is, they will not have been able to terminate the employment of a person who has been involved in two violent incidents, the first of which warranted a final notice, the second of which breached the final notice.

Secondly, even if he is the most innocent man in the world, in two years the respondent has been involved in one quite severe incident and the second incident of scuffling and fighting and carrying on at work, which puts at risk other workers. The first one, there's no doubt that he was involved in it as a primary partaker. The second one is presently unresolved and in respect of its OH and S obligations, these incidents can occur. If I harken back to the comments that were made from the bench a moment ago, the suggestion is that these incidents can occur and people do these things to each other from time to time, well, if that were to be taken to the extreme, and I don't suggest we do, there would be no guarantee that it couldn't happen next week or wouldn't happen next week, until it was fully examined.

PN83

THE SENIOR DEPUTY PRESIDENT: I'm not quite sure that follows from what I was saying.

PN84

MR MCGRATH: These people unexpectedly do these things.

PN85

THE SENIOR DEPUTY PRESIDENT: Can I ask, what happened to Mr Bonser? Was he terminated?

PN86

MR MCGRATH: Mr Bonser was terminated.

PN87

THE SENIOR DEPUTY PRESIDENT: The only evidence in this case - I mean, I appreciate there was a prior incident, how long ago - remind me again the previous - - -

PN88

MR MCGRATH: 2004, from memory.

PN89

THE SENIOR DEPUTY PRESIDENT: There was this incident in 2004 and there was an incident with Mr Bonser, though at this stage the Commission has found - I appreciate it's on appeal, but the finding so far is that he was innocent, essentially. Any risk of fighting with - Mr Bonser has obviously gone because
Mr Bonser is not there - - -

PN90

MR MCGRATH: It's not limited to Mr Bonser, though, of course.

PN91

THE SENIOR DEPUTY PRESIDENT: In what sense?

PN92

MR MCGRATH: The position here is that the first incident, which happened some years ago, cannot be discounted and it appears to have been discounted by the Commission below in the sense that it was a serious incident .

PN93

THE SENIOR DEPUTY PRESIDENT: Sorry, I really find this line of argument pretty hard to cope with. I appreciate that he was warned for it - I don't know the facts about the original incident but I take it from you that he engaged in fighting and he was the guilty party and he was given a final warning about it.

PN94

MR MCGRATH: Well, he got on his forklift truck after the fight and pushed a fellow into crates.

PN95

THE SENIOR DEPUTY PRESIDENT: Obviously one wouldn't defend that, however, that wasn't found sufficient to justify at the time his termination. He's got involved in another incident more recently, but the Commission on the evidence at first instance found that he was effectively, I don't whether she used this term, or she may have, but an innocent party. No suggestion of any misconduct on his part. It's not a case where, yes, he did something wrong but it wasn't sufficiently serious to justify termination. It wasn't the harshness she found on her reading of the evidence. Her Honour found that he hadn't engaged in any misconduct so I'm sort of struggling to see - the first incident wasn't enough to be concerned about him going back into the workplace. The second incident at this stage, he's been held to have been innocent, if I can put it that way. I can't see why that would be a problem in putting him back now. That must have been an issue that the Commission had to consider in the original case and obviously it can be an argument you can put in an appeal but the tests I've got to determine in the stay application is, is there an arguable case and the balance of convenience.

PN96

MR MCGRATH: And the public principle of the employer being able to comply with its OH and S obligations.

PN97

THE SENIOR DEPUTY PRESIDENT: No, that's not one of the principles, with all due respect, in terms of the stay application, that there are these two well founded principles. If an employer does something wrong, it dismisses somebody unfairly for something they didn't do, and the Commission reinstates somebody because the person was dismissed unfairly, that's undermining the employer's obligation to maintain its policies. If they did the wrong thing - this is what the appeal will obviously look at, but if they did the wrong thing then - you know, if the employer feels that it will influence their capacity to maintain their policies, that's going to be the employer's problem. I just don't think it's an argument in terms of what we've got to deal with this afternoon.

PN98

MR MCGRATH: Can I go back to the commencement of this interchange, and that is this, as to the relevance of the prior incident to the present circumstances, the relevance is this, the present circumstances do not have to involve such a serious degree of misconduct as the previous circumstances because of the severity of the earlier incident. What is said here is that there are reasons to warrant a further investigation of these circumstances and it's a fine line in the sense of whether you left earlier or didn't leave earlier and whether your evidence is credible or otherwise in relation to what happened. What is said here is that there are grounds to warrant that investigation because if it is found that there was some, even minor, relatively minor degree of culpability in the present circumstances, in light of the previous incident, which was quite severe, it would warrant termination. That's what said in relation to merits.

PN99

In relation to the balance of convenience, the respondent has been working in another job, if not since the incident almost since the incident, or dismissal, to the present and is earning a reasonable sum, although less than he would otherwise have earned and that a delay in the passage of time is not going to adversely affect the opportunity to implement the decision below that he can be reinstated.

PN100

THE SENIOR DEPUTY PRESIDENT: Presumably, if the appeal is dismissed, then he won't actually lose financially because there's a provision in the order, isn't there for - you'd probably need to vary the order, I think, wouldn't you? There is a provision at the moment for reinstatement with effect, I think, from Monday, but there's a provision for, I think, a make-up provision.

PN101

MR MCGRATH: There's a make-up provision and a provision that benefits not be lost. If it's not covered in that, it may have to be modified slightly.

PN102

THE SENIOR DEPUTY PRESIDENT: I haven't got the order. I had it but I've lost it.

PN103

MR MCGRATH: I've got the order here. When I say that, I may have spoken a little enthusiastically. It's attached to the reason for decision. The first order is for the reinstatement. That's 1(b). The second one is to restore all rights and entitlements and benefits. 28 October is the order.

PN104

THE SENIOR DEPUTY PRESIDENT: I've got the decision. I don't think I've got the - - -

PN105

MR MCGRATH: It's on the last two pages, attached at the end of it.

PN106

THE SENIOR DEPUTY PRESIDENT: I don't think I've got it attached.

PN107

MR MCGRATH: Can I give you my copy.

PN108

THE SENIOR DEPUTY PRESIDENT: I've got it, thanks. No, I did have it sorry.

PN109

MR MCGRATH: What I was saying was that order 1(c) probably covers the problem that's been alluded to - perhaps not.

PN110

THE SENIOR DEPUTY PRESIDENT: It would have to be modified, wouldn't it, I suppose, just the "on or before 28 November," I suppose.

PN111

MR MCGRATH: Yes.

PN112

THE SENIOR DEPUTY PRESIDENT: Anything more on balance of convenience?

PN113

MR MCGRATH: No, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: Mr George.

PN115

MR GEORGE: Just in relation to the facts of the matter, my friend has taken some fair liberty with what the facts are. If I could just start with the incident in 2004, and that was in fact in December 2004. The respondent doesn't say that he wasn't involved in an incident. My friend, I think, has inaccurately portrayed what took place. Yes, he was on a forklift and yes, he did hit another employee but he was contending that was some sort of scuffle between them beforehand and that he then got on his forklift and deliberately hit this other worker. It's a serious incident, no doubt, but from the respondent's side we would submit that it was at the lower end of the scale of severity.

PN116

The other submission I'm making, in relation to the respondent returning to work, it seems to me, Senior Deputy President, they seem to be basing it on the assumption that he's been found guilty of some sort of misconduct and clearly, her Honour in the Commission below, after having the benefit of seeing the witnesses and the benefit of their statements, found in the respondent's favour. To suggest that the appellant would be in breach of its obligations, I think that submission, with respect, has been put on the basis that the respondent has already been guilty of some sort of misconduct.

PN117

Further, the applicant, whilst he is currently employed, the figure of $1075 that you were given is an average figure based over what he's earned in the period since he commenced employment and I can indicate to you, Senior Deputy President, that the respondent actually secured that employment, I think two or three days after his employment was terminated and he remains employed in that employment, but it's casual employment. It's not fulltime employment. He's on call so there's no guarantee of work, although he does get work most days, and there was a period where his earnings were higher than that average figure but of late, I've been instructed by the respondent that the work has dropped off. He's only getting four or five hours work a day. He occasionally gets the seven hours but he certainly doesn't get a full week and certainly no overtime so he's suffering a significant loss of income. Even though $1075 sounds quite a reasonable income, that's not what he receives every week, his income varies and that, of course, places hardship on him in terms of him trying to manage his finances. He is in financial difficulty at the moment and that has been brought about by the termination of his employment with the respondent.

PN118

In terms of the balance of convenience, my submission is that the balance doesn't warrant - - -

PN119

THE SENIOR DEPUTY PRESIDENT: I suppose my problem would be - I suppose in a sense it's more your client's problem - but if the appeal is successful and the orders are quashed, he's currently got employment, although it's casual and it's not as well paid as where he was before - - -

PN120

MR GEORGE: And it's not as secure.

PN121

THE SENIOR DEPUTY PRESIDENT: - - - and not as secure but at least he's got something, if I can put it that way. If he goes back to work next week, goes back to Dairy Foods and then subsequently the appeal is successful, he has to repay all the money - well, he would lose that job and then he'd essentially have nothing. The question is, has he considered whether he should stay - in other words there may be an argument from his point of view that it would be better to stay where he is until - because he wouldn't end up out of pocket in the long run. It's true that in the short run he would, but in the long run, assuming that the appeal isn't successful then any loss of income would be compensated under the orders.

PN122

MR GEORGE: I take the point. It's well made.

PN123

THE SENIOR DEPUTY PRESIDENT: It's a tricky one.

PN124

MR GEORGE: As I understand it, he is in severe financial difficulty but I don't know how it would operate if he was to go back and his employment was terminated. Certainly any income he has earned in the interim working for ACF is not income that they would be entitled to recover from him - - -

PN125

THE SENIOR DEPUTY PRESIDENT: No, I think while he's working, that's true, but he then wouldn't have any employment is what I suppose I'm - - -

PN126

MR GEORGE: That's right and I suppose those moneys that have been ordered to be paid to him in respect of this past period, perhaps that perhaps could be deposited in some bank account and held, if you like, in some form of trust pending the outcome of the appeal. If the appellant is successful in its appeal, then the applicant certainly doesn't receive anything and if the appeal is unsuccessful, well, he does and so there's no disadvantage to the appellant in that regard. I don't know if it would be appropriate if that sort of order - maybe a variation of the order could be made in that respect if the stay was granted

PN127

THE SENIOR DEPUTY PRESIDENT: What do you say about the arguable case?

PN128

MR GEORGE: Again my friend has taken some liberty in relation to the fact, but the evidence was and it's supported by the independent witness, Mr Sinemoglou, was that my client merely approached Mr Bonser requesting that he change his battery. My friend has explained the circumstances in a way that - the way I understood it was that the altercation occurred there and then. The whole exchange took place there and then. That is not the case. What happened was that - the evidence is clear that the respondent approached Mr Bonser, requested that he change his battery.

PN129

Mr Sinemoglou was in the vicinity at the time, he was loading his truck and his evidence clearly was that the exchange between them only lasted a few seconds which, in my submission, was enough time for Mr Ashrafi to make the request for the change of battery and he then moved on and that Mr Bonser continued working where he was for about four or five minutes. It's important, I think, that
Mr Sinemoglou's evidence in that regard was that there was no yelling or talking in loud voices even by one man to the other when that exchange took place. He was there, he was only a couple of metres away. He didn't hear what was said. It wasn't a noisy area, it was a quiet area, so if there was any yelling or swearing, he would have heard that and he didn't.

PN130

The respondent's version is that what follows after that is that he then left that area. He went to the battery bay, which was some metres away, it was not right where the initial exchange took place, and he waited for Mr Bonser to come and change the battery. Mr Sinemoglou's evidence was that Mr Bonser continued to work where he was for about four or five minutes after the respondent left the scene. He was cleaning up some milk crates that had been spilt and then he went to change the battery and then it was after that that Mr Sinemoglou heard yelling and shouting and that's when the scuffle came to his attention. That is what took place and any reading of the transcript and the evidence bears that out.

PN131

In my respectful submission there is no arguable case. The appellant's case, with respect, is really without hope because based on the evidence that was put before her Honour in the Commission below, it was open to her to make the findings that she did. It was open to her to find that Mr Ashrafi was only acting in self-defence and so far as the submission regarding her failing to take into account the prior violent incident, well, at paragraph 30 it's very clear that she did take that into account and she did give a reason. The reason was it wasn't relevant, not because it didn't matter, but because Mr Ashrafi had done nothing wrong. If he had done nothing wrong, then that prior incident becomes irrelevant. He hasn't done anything wrong and the converse is true. If she did find that he had done something wrong, then it would become a highly relevant matter, so in my submission she hasn't erred by not taking that factor into account. Clearly it was taken into account.

PN132

Furthermore, you must look at the circumstances of the case. My friend has made a submission in relation to Mr Ashrafi not extricating himself from the scuffle at an earlier point than what he did. That's just one factor. Of course, the respondent's version is that he wasn't able to but you must look at all the other circumstances as well. You can't isolate it and say, well, he must have been doing something wrong because he was doing that.

PN133

THE SENIOR DEPUTY PRESIDENT: I think the suggestion is that in itself was something wrong, failing to extricate - the argument is, I think, that failing to extricate himself earlier was in itself, not so much a sign that he had done something else wrong, but in itself it was something wrong. He should have, you know, pulled out of it and whatever, sought help.

PN134

MR GEORGE: The respondent's contention is, of course, that he did. He was being attacked by another worker who was physically bigger and stronger than him and that he just wasn't able to get himself away. In fact, it wasn't until Mr Sinemoglou came along that he was able to get out of it but you look at the other circumstances surrounding it as well. Mr Sinemoglou's evidence about - I mean, when he did get there, he did hear some of the things that were said which included things that Mr Ashrafi was saying to Mr Bonser - I don't want to be inaccurate but something to the effect of, "Why are you hitting me? I didn't do anything to you. I just asked to change the battery." I think it was something to that effect. That was the respondent's evidence, his own evidence and that was corroborated by Mr Sinemoglou, both in his statement and also in his oral evidence so there's that factor.

PN135

There's also the fact that immediately upon becoming separated from Mr Bonser, what was the first thing Mr Ashrafi did? He phoned his supervisor to report the incident and that was another factor that was taken into account by her Honour in the Commission below and that matter itself, in my submission, would indicate that it's somebody that doesn't have a guilty conscience. If he had been involved in what the appellant suggests, if their version is accepted, then that doesn't seem to fit.

PN136

The other position that we're trying to put is that Mr Ashrafi must have done something to provoke Mr Bonser. As your Honour has already pointed out, there's just no evidence about that whatsoever, that he provoked him. There's no evidence about that whatsoever. That was put to him in evidence, it was denied. It was put to Mr Sinemoglou in terms of what he heard when Mr Ashrafi initially approached Mr Bonser in regard to changing the battery. There's just no evidence. Why Mr Bonser did it we will probably never know, but it doesn't automatically follow that Mr Ashrafi must have done something.

PN137

On that basis, I would submit that there isn't an arguable case, that it was open to her Honour to make the findings that she made, that she hasn't made any error in law and on the balance of convenience, in relation to that matter, as I've said, I would submit that it's against the making of a stay, ordering a stay.

PN138

THE SENIOR DEPUTY PRESIDENT: Do you want to respond, Mr McGrath?

PN139

MR MCGRATH: Yes, your Honour. just very briefly, if I may. Just to avoid any suggestion that I might have inadvertently misled the Commission, I'm quoting now from the final written warning which was before the Commission below as to this effect in relation to the incident:

PN140

We've investigated the incident on 7 December 2004 nightshift when, after an altercation with Walter Smith you were witnessed deliberately using your forklift to push Walter into some crates on the dock.

PN141

That's the written warning given to the worker himself so there can be no suggestion that there was an altercation and then after that the respondent pushed a fellow worker into the crates on the dock.

PN142

In relation to the failure of the Commission below to take into account what is said to be a relevant factor, namely that prior incident, it becomes a little constrained in this sense, because in the alternative version in paragraph 32 of the reasons for decision, where the Commission below says that even if he hadn't left the fight as soon as he could have and got away, it would have made no difference. It's in relation to that, for example, if he hadn't and if he continued it on, even if it was a minor matter, that warrants more consideration as to whether he might have - that failure to defuse the situation, but rather to continue on, in light of the earlier incident, is sufficient grounds for termination. That just doesn't seem to have been addressed in the reasons for decision.

PN143

THE SENIOR DEPUTY PRESIDENT: I have to say - sorry, did you want
to - - -

PN144

MR MCGRATH: No, no.

PN145

THE SENIOR DEPUTY PRESIDENT: I'm giving my response as we go, I suppose, but I am finding it very difficult to find that there's an arguable case but on the other issue, balance of convenience, it is normal to grant, if I could put it that way - it tends to be the case that one grants a stay in these kinds of matters in the sense that, you know, with an individual who there's an order for reinstatement and there's an appeal - I haven't actually done the statistics but normally, if I could put it that way, there's a stay. I am, on the other hand in this case, rather reluctant, as you may have already gathered, to grant a stay. Mr George mentioned that the applicant has got some serious financial difficulties. We don't have any evidence on it as such, but from the evidence he's obviously lost a significant amount of income and I don't know if you have anything to say - I am concerned about that, especially if he - the case, at the very least it's a very weak case in my view, the likelihood of the appeal getting up, at the very best I'd have to say, Mr McGrath, is very low, possibly non-existent.

PN146

MR MCGRATH: I don't concede that.

PN147

THE SENIOR DEPUTY PRESIDENT: You don't have to concede it,
Mr McGrath, because that's where I'm coming from, because, as you understand, it's not a question - because basically the issue is the question of the evidence in the sense of the facts because your argument about the failure of her Honour to take account of the prior incident only kicks in, if I could put it that way, if you accept that she's fundamentally got the facts wrong as to what happened in this matter because basically, if he is innocent, which is essentially - he did not engage in any misconduct is what she found, then the prior incident couldn't have any relevance in my view and I can't imagine that a Full Bench would feel differently.

PN148

If, on the other hand, she had got the facts wrong, that he really had done something wrong, then okay, even if the thing that was wrong was only failing to disengage, given that he was on a final warning for fighting, then you might say well, she should take that into account, but that's what she found. I think for it to be a relevant factor in an appeal, you would have to also say that she made an appellable error in relation to the facts. That's quite a hard test because it's not enough to say, well, look, maybe she got it wrong. You've actually got to show that essentially it wasn't open to her to draw the conclusion.

PN149

Most of what you've put is, well, we don't have any evidence about it but he must have done something to start the fight. I'm being perhaps a little bit unfair but essentially you're inviting the Commission to sort of essentially say well, we all know these things don't come out of nowhere, he must have said something, he can't be entirely innocent, people just don't go around attacking each other like this.

PN150

In the face of no evidence I think it's extremely unlikely the Commission at a Full Bench level is going to say, well, the whole story is just improbable. He must have done something wrong. I just have to say I'm really struggling with the idea there's an arguable case.

PN151

MR MCGRATH: If a large part of the story is improbable or even the onset of the incident is improbable, that is that it just happened for no reason whatsoever, unrelated to anything else that was going on at work or happened in that particular incident, in relation to some totally external inference or something - - -

PN152

THE SENIOR DEPUTY PRESIDENT: That finding that it came out of nowhere, there's no finding about what it came out of.

PN153

MR MCGRATH: No, but in those circumstances, it's the reasonable inference that's used. You can't just simply say, "There's no evidence and therefore I can't make a finding." The obligation is to consider it and make a finding as to what probably, more reasonably than not, did occur in that incident. The Commission is not being asked to judge on how the incident took place. What the Commission is being asked to say is, well, if that's improbable, some of what else was said by the respondent in relation to his ability to get away, what he did in the incident, is also tainted by that problem of credit.

PN154

THE SENIOR DEPUTY PRESIDENT: Let's say I was of a mind, despite what I've just said, to grant a partial stay - is there any sort of compromise you could think of in terms of - the problem would be, to be honest, if he does go back and there's no stay of any part of the order and then, despite my misgivings in fact the appellant is successful, then you would need to restore the status quo and that's going to be rather difficult, I would think, if the order has already been carried out, you know, for him to repay the money and so on, I suspect, would be - - -

PN155

MR MCGRATH: It would be pretty well - it wouldn't be impossible - - -

PN156

THE SENIOR DEPUTY PRESIDENT: It would be probably challenging.

PN157

MR MCGRATH: Yes, and in the interim there's nothing that seems to be - apart from what is said from the bar table, nothing that seems to be pressing on that side of the balance of convenience. There's certainly nothing of that other than his job is less secure, set out in that letter that was tendered. There's no suggestion in that letter that he's in grave financial difficulty or anything of that kind. This is what my friend says. Admittedly, no one has had a great deal of opportunity to present evidence in terms of the timing today, but my friend could have brought some other evidence, if that was to be a strong suit in his case.

PN158

In relation to the balance of convenience, perhaps the only alternative would be, as a compromise, perhaps for - what my friend suggests, for Dairy Farmers to put some part, perhaps say half of the funds in an interest bearing account or perhaps all of the funds in an interest bearing account, or two-thirds of the funds in an interest bearing account because there is some issue as to what the funding precisely is, but then there can't be any real reason to think that Dairy Farmers is going to be unable to pay the full sum and interest in any event, even if it wasn't lodged in an account.

PN159

The real issue is the reinstatement. My friend doesn't seem to be, in his argument, putting that as a primary concern because the compromise position, it seems, in the submissions is for this depositing of moneys into an account. If that's a true compromise position put forward by the respondent, well, it seems to be done only for appearances sakes in the sense that there's no need for it if Dairy Farmers, as they are, are going to be able to fund it in due course. It certainly doesn't make it a feasible alternative to pay money to the respondent in circumstances where he's asserting, without evidence, nonetheless asserting that he is in financial difficulty because that will make it hard to get it back. It really depends upon, to some extent, how long it's going to take to get the matter on.

PN160

THE SENIOR DEPUTY PRESIDENT: I think I'm at a point where I can probably give you a decision. I'm not going to grant the stay because I'm just not satisfied that the first test in these kinds of matters has been met. I'm just simply not satisfied that there is an arguable case that the appeal will be successful. On that basis it's not appropriate for me to grant a stay and the issue of balance of convenience at the end of the day doesn't really arise if I'm not satisfied that there's an arguable case. I think I've probably made clears through the course of our interchange the reasons why I don't believe there is an arguable case.

PN161

The issue really would come down on appeal to a claim that her Honour essentially fundamentally misconceived the facts and that the version of events that she accepted couldn't have been accepted reasonably. It wasn't open to her because it was glaringly improbable and I'm just not satisfied that that's the case. On that basis, I'm going to decline to grant the stay so the orders will remain as they are. Thank you.

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