C2012/6288, Transcript of Proceedings [2013] FWCTrans 105 (21 February 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1035591-1

DEPUTY PRESIDENT SAMS

C2012/6288

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Mantra Hospitality (Admin) Pty Ltd
and
Ms Zaklina Miloskovska
(C2012/6288)
Hospitality Industry (General) Award 2010

(ODN AM2008/4)
[MA000009 Print PR985119]]




Sydney

10.10AM, TUESDAY, 12 FEBRUARY 2013

Reserved for Decision

PN1

THE DEPUTY PRESIDENT: Could I have the appearances?

PN2

MR C. POLLARD: May it please the commission, Pollard, initial C, of Jones Ross appearing for Mantra. In the room in Sydney I have Ms Jane Law, regional human resources manager.

PN3

THE DEPUTY PRESIDENT: And the respondent? Ms Miloskovska, is it?

PN4

MS MILOSKOVSKA: Yes.

PN5

THE DEPUTY PRESIDENT: Yes. Mr Pollard, your client is the applicant in the matter. So would you care to lead off?

PN6

MR POLLARD: Certainly, your Honour. Your Honour, I’d just like to start by calling Mr Godwin Oparah to the stand.

<GODWIN OPARAH, SWORN [10.12AM]
<EXAMINATION-IN-CHIEF BY MR POLLARD [10.12AM]

PN7

MR POLLARD: Thank you, Mr Oparah. Have you prepared a statement for the proceedings today?---Yes, I have.

PN8

Do you have that statement in front of you?---Yes, I do.

PN9

Are there any changes you’d like to make to that statement at this time?---No.

PN10

Is that the evidence that you wish to give today?---Yes.

PN11

Is it true and correct to the best of your knowledge?---Yes, it is.

PN12

Your Honour, I tender that document.

EXHIBIT #1 AFFADAVIT OF GODWIN OPARAH

PN13

THE DEPUTY PRESIDENT: Have you seen this affidavit of Mr Oparah’s?

PN14

MS MILOSKOVSKA: Yes.

PN15

MR POLLARD: Now, your Honour, I’d like to ask the witness a few questions, if I could, in relation to some of the matters that were filed by the respondent, some of the things written on the document headed Short Outline of Case dated 11 January 2013. For the purposes of the proceeding, your Honour, I was planning on referring to this document as the statement of the respondent.

PN16

THE DEPUTY PRESIDENT: Well, as you would appreciate, it’s really not in proper form but it seems that that’s how it might be read. So, yes, you can take it I will mark it as evidence and no doubt you will seek to cross-examine the respondent in respect to it at some point.

**** GODWIN OPARAH XN MR POLLARD
PN17

MR POLLARD: Yes.

PN18

THE DEPUTY PRESIDENT: All right.

PN19

MR POLLARD: Thank you, your Honour. Mr Oparah, in your witness statement you state at paragraph 6 that a meeting was held on 12 November 2012 with the housekeeping staff. Now, in the statement filed by the respondent she says that in fact that meeting happened on Tuesday, 13 November. Which of these is correct?---The 12th.

PN20

It was the 12th?---It was the 12th, on Monday the 12th.

PN21

In the statement at the second dot point – do you have a copy of the statement in front of you at all, Mr Oparah?---Yes.

PN22

So you have a copy of the respondent’s statement?---Yes, I do.

PN23

The second dot point there says, “All employees were then told that there would be a change of employer and that the employees’ employment status would therefore change to part time and everyone would be working at different hotels.” Do you recall that being said?---No, I do not recall that discussion.

PN24

Was there any mention at all made regarding the change of people’s employment status?---Not at that meeting. The whole meeting was about introducing AHS as the new housekeeper for the hotel. Nothing was discussed about what other position, new position, would be part time or full time.

PN25

At the 7th dot point in the statement the respondent states that he – and this is you – told her that she would no longer be working as a supervisor, as the new employer would be bringing in their own supervisor. “He then told me my new position would be room attendant”?---No.

**** GODWIN OPARAH XN MR POLLARD
PN26

Did you ever say anything like that to the respondent at any time?---No, not that day.

PN27

Not on that date. Did you say that to her at another time, that they would be bringing in their own supervisor?---What we discussed was when I went after the meeting – we went down and met Zaklina and told her the structure of the new housekeeping company. At no time did I tell her what they would be doing. I just told her what AHS normally does.

PN28

I’m sorry, Mr Oparah, could you speak up a little bit?---Sorry, I’ve got a sore throat. I’ll try as much as I can to speak louder. Sorry, your Honour.

PN29

THE DEPUTY PRESIDENT: Did you hear that last answer?

PN30

MR POLLARD: Could you repeat – I’m sorry. I was just asking if he could repeat it. I didn’t hear what he said properly.

PN31

THE DEPUTY PRESIDENT: Can you repeat your last answer?---On that day I did not discuss with Zaklina or the respondent that AHS would be bringing their housekeeping manager.

PN32

MR POLLARD: Okay. At that meeting or on that day, either during the group meeting or later on in the meeting that you discuss in your statement that you had with Zaklina on your own, was the hourly rate discussed in any way, shape or form?---No.

PN33

It wasn’t?---No.

PN34

Now, in the next dot point the respondent states that she had continually requested from you, on a daily basis in fact, that you provide her with a printout of all her leave entitlements. Did that occur?---I cannot remember that request, no.

**** GODWIN OPARAH XN MR POLLARD
PN35

So you don’t recall her coming to you every day and asking for this material?
---Not every day. I mean, the leave entitlement or whatever should be on her pay slip. The hours of leave she has normally is on the pay slip.

PN36

I’m sorry, when did she ask you for that material?---I can’t remember her asking me that material.

PN37

Under the date 30 November, third dot point down, there’s a statement that says, “Godwin told me that he would talk to Jane in HR to understand why the hourly rate had been changed. He was unable to tell me why it had been changed at this meeting.” So this was the meeting on 30 November. Do you recall that conversation?---I do remember having a chat to Zaklina. I think this is after she got her contract from AHS. My recollection was not what the statement said. My recollection was around the fact that she didn’t want to take the offer that was given to her by AHS.

PN38

What was the reason she gave for not wanting to take that offer?---She said it was $17.

PN39

In your statement you discuss the conversation that you had around that point, don’t you?---Yes.

PN40

I’ll leave that there. On 5 December there is a statement and the first dot point says, “I approached Godwin again to ask what was happening with my hourly rate.” Do you recall this conversation?---No.

PN41

You have no recollection of that conversation at all?---No, not along those lines. My conversation or discussion with her was the fact that she’s going to be a room attendant, nothing to do with the rate of pay that she was receiving from AHS.

**** GODWIN OPARAH XN MR POLLARD
PN42

The next dot point, “I then told him that this wasn’t what was discussed at our meeting on 13 November or what was written on the signed letter given to me on 13 November. At that point I asked Godwin for a redundancy and I would leave my job.” That entire conversation, do you recall that?---Not along those lines, no.

PN43

How do you recall that conversation proceeding?---What I remember was that we discussed the fact that she will be going to work with AHS as a room attendant and, as such, the rate of pay or the letter of offer she received is for a room attendant.

PN44

On Friday, 7 December there’s a statement that says, “I approached Godwin again to ask him how much money I would receive for a redundancy. He told me that he hadn’t received anything from Jane but he did say that he believed my redundancy entitlement would be between seven and nine thousand dollars. I then left his office.” Do you recall that conversation?---No.

PN45

Do you recall having any conversation with the respondent about your estimate of what her redundancy payment would be?---No, I didn’t discuss the final payment with her.

PN46

Did you give her any estimation as to what you thought her severance pay would amount to?---No, because I don’t have that information.

PN47

So you’re saying that conversation on 7 December just didn’t happen?---I can’t remember it, no.

PN48

On Monday, 10 December it’s stated that the respondent approached yourself again and told you that today – sorry, was her last day and from 11 December AHS was her new employer and she hadn’t accepted the new role due to the hourly rate. It’s then stated that you said, “He told me not to worry, go home and he’ll call me that afternoon at 3 pm. He never called me that afternoon.” Do you recall a conversation with the respondent on or about this day that went along these terms?---I do remember – not along those lines but I do remember having a chat to Zaklina because it was her last day. She came into my office, she was crying and upset and I told her, “Don’t worry, everything will be okay,” trying as much as I can to reassure her. Those are the things that I can remember.

**** GODWIN OPARAH XN MR POLLARD
PN49

Did you mention anything to her about if any positions became available or anything like that?---I think she was worried about what she would do for a job. I can’t remember discussing what other position would be available or not. All I was doing that day was trying as much as I can to reassure her because she was upset.

PN50

Tuesday, 11 December it’s alleged that the respondent phoned you, so the following day, awaiting a response to her discussion with you. She says here that you still hadn’t heard anything and you would call her once you had received the information and that you then called her later that day at about 1.30 pm and said that you had received her redundancy package and you told her the amount. Do you recall this happening over the phone on this way?---Yes.

PN51

You do?---I do remember calling her on that day to tell her that I have received information, received her last pay package or notice.

PN52

In your witness statement you say that you met with the respondent on 5 December?---Yes.

PN53

In that statement you’re saying there that you provided her information regarding her severance payment?---Yes.

PN54

So this conversation on 11 December, was this the first time – the statement here is that this is the first time the respondent had been made aware of what her severance payment would be?---Not the first time. There was several – I think there was a letter before that.

PN55

What was the nature of your telephone conversation with Zaklina on this day?
---On the 11th?

PN56
**** GODWIN OPARAH XN MR POLLARD

Yes?---The conversation on the 11th was her last – she had finished on the 10th. She was waiting to see how much her last pay will be and the conversation was around those line because she worked up until the last pay week.

PN57

So it wasn’t just about the severance pay. Is that correct?---No, not to my recollection.

PN58

Your Honour, I have no further questions of the witness at this time.

PN59

THE DEPUTY PRESIDENT: Thank you. Ms Miloskovska, you have an opportunity to ask questions of Mr Oparah. Do you wish to do so?

PN60

THE INTERPRETER: No.

PN61

THE DEPUTY PRESIDENT: Well, this is your only opportunity.

<CROSS-EXAMINATION BY MS MILOSKOVSKA [10.28AM]

PN62

THE INTERPRETER: On the paragraph Friday, 7 December, Zaklina is saying that, “He told me that I will receive seven to nine thousand.”

PN63

THE DEPUTY PRESIDENT: Well, what’s the question?

PN64

THE INTERPRETER: That he’s not telling the truth.

PN65

THE DEPUTY PRESIDENT: Where is this reference?

PN66

THE INTERPRETER: Friday, 7 December 2012, paragraph, second page.

PN67

THE DEPUTY PRESIDENT: Well, what’s your response to that? Do you know what the respondent is referring to?---Yes, I know. I can’t remember having that conversation with her.

**** GODWIN OPARAH XXN MS MILOSKOVSKA
PN68

THE INTERPRETER: I would like to ask why you haven’t paid my redundancy?---I don’t understand the question.

PN69

Why you pay my redundancy $3.95? It’s supposed to be $21?---I don’t understand why you’re asking. I’ve given you all the information that I have, Zaklina.

PN70

MR POLLARD: Excuse me, your Honour. I think that question sort of goes to the entire reason we’re here. I’m not entirely sure the witness – because it’s set out in the witness statement and submissions.

PN71

THE INTERPRETER: Zaklina’s sister would like too say something.

PN72

MS VASSILEV: Your Honour, can I just have a say? Is that okay?

PN73

THE DEPUTY PRESIDENT: Well, no. You can have your say later but you can ask questions now.

PN74

MS VASSILEV: Okay, sorry. My question is, if it’s possible – with my sister, she has explained to me and I’ve been sort of following up with her all throughout this process and doing the phone conversations and stuff. The question is, if a person is in a full-time position and being paid $21 an hourly rate – I’ve been the workplace all my life. I think really, realistically, the outcome of it is when you do finish a job and you do get your redundancy payment you should be getting it at the hourly rate that you last worked in your workplace, not for it to be - - -

PN75

THE DEPUTY PRESIDENT: You’re making a statement now. What’s your question?

PN76

MS VASSILEV: Sorry. My question is how is that possible for the drop in the hourly rate to be paid to her?

**** GODWIN OPARAH XXN MS MILOSKOVSKA
PN77

THE DEPUTY PRESIDENT: Well, isn’t that said to be explained in the various documents?

PN78

MS VASSILEV: Okay.

PN79

THE DEPUTY PRESIDENT: You dispute that. I understand that. I’m just a little unclear where this $3.95 comes from.

PN80

THE INTERPRETER: Let me ask - - -

PN81

THE DEPUTY PRESIDENT: No, I’m asking the witness?---I understand it’s the difference of pay from a supervisor rate to the room attendant’s rate.

PN82

So this document which is attached to GI02 – do you have that? It’s headed Mantra Group. Is this a correction to the payment that was made? $1651?
---That’s the initial calculation, the difference of pay between supervisor rate to room attendant’s rate. When AHS came in Zaklina agreed following the discussion with her that she would be happy to work as a room attendant. So that was just the transition - - -

PN83

I understand that but is this a correction to amounts that had already been calculated?---Sorry, your Honour, I don’t have that document in front of me.

PN84

Mr Pollard, do you know the answer to my question?

PN85

MR POLLARD: Yes, I do, your Honour. It’s not a correction. This is the actual method of calculating the severance pay. What the employer did in this circumstance – and I’ve actually set it out in my submissions towards the back. What they’ve done is they’ve treated it as if it was a transfer to lower paid duties and they’ve paid the number of weeks’ severance by the difference between the supervisor rate at $21 and the actual housekeeper rate which was being offered by the new employer at 17.05, which comes to the 3.95. So that’s why there was 418 hours multiplied by that dollar figure, that 3.95. So in the witness statement, and it’s the evidence of Mr Oparah, as I understand it, that this is the document that was handed to the respondent with the letter immediately before it in the meeting on or about 4 or 5 December.

**** GODWIN OPARAH XXN MS MILOSKOVSKA
PN86

THE DEPUTY PRESIDENT: Right. So she was not paid redundancy calculated at either $21 or $17.05 but the difference between them.

PN87

MR POLLARD: That is correct.

PN88

THE DEPUTY PRESIDENT: Yes, okay. That’s because you say that it was acceptable alternative employment but she was transferred to lower paid duties.

PN89

MR POLLARD: Correct.

PN90

THE DEPUTY PRESIDENT: I see. Well, that makes that clear. Thank you. Is there any further question you wish to ask?

PN91

THE INTERPRETER: I didn’t accept that new job position - - -

PN92

THE DEPUTY PRESIDENT: This is questions to Mr Oparah. She can make statements later.

PN93

THE INTERPRETER: No further questions.

PN94

THE DEPUTY PRESIDENT: Is there anything in re-examination, Mr Pollard?

PN95

MR POLLARD: No, your Honour.

PN96

THE DEPUTY PRESIDENT: Yes, Mr Oparah, you may step down. You’re released from your oath?---Thank you.

<THE WITNESS WITHDREW [10.36AM]

PN97

MR POLLARD: Your Honour, that’s the sum total of the evidence from the applicant in this matter.

PN98

THE DEPUTY PRESIDENT: All right, thank you. Ms Miloskovska, you have filed what is a document dated 11 January 2013 entitled Short Outline of Case. Yes? Two pages? Do you have that with you? There’s various attachments.

PN99

THE INTERPRETER: What date did you mention?

PN100

THE DEPUTY PRESIDENT: 11 January 2013. It’s headed Short Outline of Case.

PN101

MS VASSILEV: Yes, that’s it.

PN102

THE INTERPRETER: Yes, she does.

PN103

THE DEPUTY PRESIDENT: There’s various attachments to that.

PN104

THE INTERPRETER: Just two pages.

PN105

THE DEPUTY PRESIDENT: There’s what?

PN106

THE INTERPRETER: Only two pages. She hasn’t got the rest of it.

PN107

THE DEPUTY PRESIDENT: Well, I have a letter dated 13 December from her, a response from Jane Law dated 17 December, an email to Jane Law from her dated 19 December, documents of 13 November.

PN108

THE INTERPRETER: She has got the 19 December.

PN109

THE DEPUTY PRESIDENT: In any event, they’re all documents that have either been tendered or irrelevant to the proceedings. Do you wish to ask the respondent questions, Mr Pollard?

PN110

MR POLLARD: If she intends for that statement to be her sworn evidence, I will, yes.

PN111

THE INTERPRETER: Yes, you can ask her.

PN112

THE DEPUTY PRESIDENT: All right, in the witness box, please.

<DIMO BAJINOVSKI, SWORN TO INTERPRET [10.40AM]
<ZAKLINA MILOSKOVSKA, SWORN [10.41AM]
THE DEPUTY PRESIDENT: I’ll deal with the preliminaries, Mr Pollard. Ms Miloskovska, you have filed a document that’s headed Short Outline of Case.

PN113

THE INTERPRETER: Yes.

PN114

THE DEPUTY PRESIDENT: This is a chronology of the events leading to your redundancy.

PN115

THE INTERPRETER: Yes.

PN116

THE DEPUTY PRESIDENT: Do you have that with you?

PN117

THE INTERPRETER: You mean this document?

PN118

THE DEPUTY PRESIDENT: Well, you tell me. Is it headed Short - - -

PN119

THE INTERPRETER: This is it. I think it is.

PN120

THE DEPUTY PRESIDENT: Well, the first entry is Tuesday, 13 November. Is that right?

PN121

THE WITNESS: Yes.

PN122

THE DEPUTY PRESIDENT: It goes over to a final entry, “Please find attached additional paperwork.”

PN123

THE INTERPRETER: Yes.

PN124

THE DEPUTY PRESIDENT: Do you say the contents of that document are true and correct to the best of your knowledge and belief?

**** ZAKLINA MILOSKOVSKA XN
PN125

THE INTERPRETER: Yes.

PN126

THE DEPUTY PRESIDENT: Well, notwithstanding the document is not in proper form, Mr Pollard, do you have any objections?

PN127

MR POLLARD: I have no objections, your Honour.

EXHIBIT #A DOCUMENT ENTITLED SHORT OUTLINE OF CASE
<CROSS-EXAMINATION BY MR POLLARD [10.43AM]

PN128

MR POLLARD: Ms Miloskovska, the statement states that you met with the AHS, the new company, on 13 November.

PN129

THE INTERPRETER: Yes.

PN130

MR POLLARD: So that is a Tuesday, or was a Tuesday?

PN131

THE INTERPRETER: Yes.

PN132

MR POLLARD: You’re aware that Mr Oparah stated that it happened the day before, on the Monday?

PN133

THE WITNESS: Yes.

PN134

MR POLLARD: Mr Oparah also says that a number of conversations that you say in here happened did not happen.

PN135

THE INTERPRETER: All the conversations - - -

PN136
**** ZAKLINA MILOSKOVSKA XXN MR POLLARD

MR POLLARD: Okay. Mr Oparah states that you requested to step down as a supervisor. Do you recall that conversation?

PN137

THE WITNESS: No, it’s not true.

PN138

THE INTERPRETER: No. How can I go from supervisor down to that level? Because I worked so much. I tortured myself - - -

PN139

THE WITNESS: Six years.

PN140

THE INTERPRETER: - - - for six years to get to that point.

PN141

MR POLLARD: Mr Oparah has given evidence that you had requested on a number of occasions to step down as supervisor.

PN142

THE INTERPRETER: That’s not correct.

PN143

MR POLLARD: Because you couldn’t cope with the workload.

PN144

THE INTERPRETER: That’s not correct.

PN145

MR POLLARD: Ms Miloskovska, I put it to you that it is correct because you didn’t want to maintain your role as supervisor with the new employer.

PN146

THE INTERPRETER: That’s not correct. I was quite on good terms with that personnel who wanted to take me on.

PN147

MR POLLARD: Now, I also put it to you that on or about 5 December you met with Mr Oparah and you received a letter setting out – a revised letter setting out your options should you not accept the offer with AHS as well as - - -

**** ZAKLINA MILOSKOVSKA XXN MR POLLARD
PN148

THE INTERPRETER: That’s not correct. I didn’t see any letter.

PN149

MR POLLARD: So your evidence then is that you did not receive the document that is in Mr Oparah’s statement. I don’t know if you can see it there. It’s the spreadsheet with the calculation of the severance pay.

PN150

THE INTERPRETER: No, I didn’t see a document. I saw the document when he paid me.

PN151

MR POLLARD: Mr Oparah has stated that he has no recollection of giving you the estimate of seven to nine thousand dollars in severance pay.

PN152

THE INTERPRETER: He told me that. He says, “I think between seven and nine thousand dollars.”

PN153

MR POLLARD: Ms Miloskovska, you’re basically alleging that every single thing that Mr Oparah has said in his sworn statement is a lie. That’s the case, isn’t it?

PN154

THE INTERPRETER: Not all but is some lies.

PN155

MR POLLARD: What reason would Mr Oparah have to tell those lies to the commission today?

PN156

THE INTERPRETER: How would I know?

PN157

MR POLLARD: If the events that are set out in your statement are correct, you stand to gain quite a few thousand dollars, don’t you?

PN158
**** ZAKLINA MILOSKOVSKA XXN MR POLLARD

THE INTERPRETER: I’m asking whatever is mine, I’m entitled. I don’t ask for anything extra. All I am asking for my redundancy amount.

PN159

MR POLLARD: Ms Miloskovska, have you found work since that day?

PN160

THE INTERPRETER: No.

PN161

MR POLLARD: Your Honour, I have no further questions at this time.

PN162

THE DEPUTY PRESIDENT: Yes, thank you. You may step down, Ms Miloskovska.

<THE WITNESS WITHDREW [10.51AM]

PN163

THE DEPUTY PRESIDENT: Well, Mr Pollard, you have filed a document, being submissions of the applicant.

PN164

MR POLLARD: I have, your Honour.

EXHIBIT #S1 SUBMISSIONS OF APPLICANT

PN165

THE DEPUTY PRESIDENT: Do you wish to speak to that document, Mr Pollard?

PN166

MR POLLARD: Your Honour, I don’t intend to go through it in great detail. I’ve tried to make it as comprehensive as possible so the respondent would understand exactly what our argument was today. I only reiterate that Mr Oparah has absolutely no reason to falsify any of his evidence. He stands to gain nothing out of today’s proceedings. The evidence he gives is believable in its chronology and it also stands to reason with the processes and back office facilities provided at Mantra – it’s a large organisation, Ms Jane Law is an experienced HR manager and the process involved throughout this changeover of outsourcing and redundancy have been designed from the start to minimise the impact on employees. The process chosen by Mantra Hospitality has been such that the condition of the new contractor coming on board was that no employee would be affected in any real way. All of the wages were maintained. All of their positions were continued.

The one exception to this change was that of the respondent. The reason there was that exception was because the respondent said to Mr Oparah, “I want to step down as a supervisor.” I understand that now the respondent is saying otherwise. However, it’s our evidence that at the time the respondent said, “I won’t want to be a supervisor any more. I just want to be a room attendant.” Now, contingent upon her role of supervisor, as set out in the evidence of Mr Oparah, is that she was paid a higher hourly rate, $21 an hour to act as supervisor. It’s clearly set out in the change of employee details form, I think it’s called, status form existing team member. So she was getting the $21 an hour to be a supervisor.

PN167

Then comes this change. It’s our evidence that the respondent had asked a number of times during her employment, particularly with Mr Oparah, that she wasn’t really happy being supervisor any more and would like to step down. Particularly important at this point is that when it comes time for the changeover the respondent approached or discussed with Mr Oparah in a meeting that she did not want to be a supervisor for the incoming business. It is our submission that if the respondent had not said that, she would have been offered a role as the supervisor with the incoming contractor and her rate of pay would have been maintained.

PN168

Your Honour, it’s our submission that in that circumstance when an employee asks for a job in this situation of a transfer or a change, outsourcing, they actually say specifically, “I want to be offered this job,” they can’t then reject it when it complies with the award requirements. It’s our evidence that the employees working as room attendants got paid $17.05 or the award rate. Back when she was employed the respondent was engaged on a rate of $15.2158 an hour. So it makes sense then and it naturally follows that if she decides to return to such a role she returns to those rates of pay.

PN169

It is not then open to the respondent to say, “Well, in fact, that’s no longer good enough.” We say in fact that on 5 December was informed fully of what the redundancy payment would be if she rejected the role with the incoming contractor. That letter was handed to her at that meeting. That’s our evidence. So at that time the respondent was fully informed of what would happen if she rejected the offer. So we say that at that time, certainly from that point, the respondent was fully educated as to what her entitlements would be if the matter proceeded, if she rejected the offer or if she accepted it.

PN170

Now, notwithstanding the fact that we argue that the employer is not actually obliged to comply with the transfer to lower paid duties provision, it’s our position, your Honour, that in fact the employer could have paid the employee, the respondent in this case, nothing and made this application to seek to reduce the severance obligations to zero. The reason for that is it was not actually a transfer to lower paid duties by Mantra. It was a straight outsourcing and it was acceptable alternative employment. Therefore, the entitlement would be zero.

PN171

However, because Ms Miloskovska had worked for us for an extended period of time and because of the value they’ve placed on that, if she had accepted the role or if she rejected the role she was still going to get severance pay calculated in accordance with 17.2 of the award, which is the transfer to lower paid duties provision. That is, if she had accepted the role she would have got the same amount of money as if she had rejected it.

PN172

Your Honour, the respondent states that she hasn’t found another job since. It’s our position that in these circumstances a job is better than no job. A job you’ve asked for is the best. It is not our fault that the respondent has not been able to find alternative work. We offered her alternative work. If indeed she was not happy at the 17.05, she had 400 and something hours over the first couple of weeks of working with the new employer to find an alternative if that so suited her. But a job was ready, a job was available and it wasn’t taken. Your Honour, it’s our submission that for the reasons set out in our written submissions, and using the case law stated, we submit that the redundancy and severance pay entitlements should be reduced to the amount already paid. May it please, that’s the end of my submissions in the matter.

PN173

THE DEPUTY PRESIDENT: Well, Mr Pollard, at paragraph 6 you refer to the respondent informing two different general managers that she no longer wanted to be a supervisor. Who was the other one?

PN174

MR POLLARD: Your Honour, I apologise for that. I had information that a former general manager, the one engaged immediately prior to Mr Oparah, had also had conversations with the respondent along these lines. However, he wasn’t going to be available to give evidence. So, therefore, I couldn’t put in a statement. So with regard to that one, your Honour, I suppose we don’t rely on that particular line in submissions.

PN175

THE DEPUTY PRESIDENT: All right, thank you. Well, now is your opportunity to put your position.

PN176

MS VASSILEV: Thank you, your Honour. Firstly I’d like to start by stating that most of this is not true, to my knowledge with the conversations I’ve had with my sister. Number one, she hasn’t been treated fairly. She has worked there for six years. She has been supervisor there for two years. I understand the new company is taking over but for them to suggest that she stepped down from a position – number one, there was no paperwork given to her saying, “You are stepping down.” If I was stepping down from up here to down here, I’d like it in writing. Nothing was given to her. She never promised them that she wants to step down because she was working hard for two years to keep that position.

PN177

Number three, I don’t think she has been treated fairly, working so hard and then for someone to just suggest, “Oh, she didn’t want to be a supervisor any more. So we’re going to lower her hourly rate.” She was being paid $21 up until her last day of employment with this company. If she was stood down and if her hourly rates were brought down, she should have been notified. Someone should have sat down with her and explained everything properly to her. They know that she doesn’t understand that much English. If need, they could have got an interpreter to explain what was being offered to her. She was offered another position with the new company but it was a lower grade. She has a family, a big mortgage. From $21 to $16 to $17 an hour is a big difference for her wage. So that’s why she didn’t take that position, because from up here, from on top of a horse you’re down on the floor. That’s why she was stressed.

PN178

THE DEPUTY PRESIDENT: Not quite on the floor.

PN179

MS VASSILEV: Well, I understand it’s a job. Yes, I understand it’s a job.

PN180

THE DEPUTY PRESIDENT: Well, a job is better than no job if what you’re saying is that she desperately needed the job.

PN181

MS VASSILEV: Well, she does desperately need it but she got very upset at the time of the way she was treated and the way this whole case was handled, because no-one – up until today no-one has bothered to call her. She has not been called to sign resignation papers that she has officially left from the company. Legally she’s still employed with them because she hasn’t seen any paperwork. No-one has called her.

PN182

THE DEPUTY PRESIDENT: Well, she has accepted all the payments, hasn’t she?

PN183

MS VASSILEV: Well, she has received them and they’ve sent her payouts, yes, but if I’m in - - -

PN184

THE DEPUTY PRESIDENT: Well, she hasn’t sent them back, has she?

PN185

MS VASSILEV: Well, of course not, because that’s entitled to her. So why would she sent it back? But she really - - -

PN186

THE DEPUTY PRESIDENT: You’re not seriously suggesting she’s still employed with them?

PN187

MS VASSILEV: No. That’s my word, not hers. I’m just saying from what I can see. But, realistically, if she was being paid $21 an hour till the last day, to her last pay slip, that is her hourly rate. So she really didn’t drop down from a supervisor’s position because she was still doing it to the last day. Where’s the evidence, where’s the paperwork that she stepped down? Where’s the evidence that she said, “Okay, I’ll go down to a lower grade and I’m doing a lower grade job.” She worked as a supervisor till the last day.

PN188

THE DEPUTY PRESIDENT: Well, the evidence is from Mr Oparah. What you are saying is that Mr Oparah has lied on his oath.

PN189

MS VASSILEV: Well, look, I’m not saying he has lied but Mr Oparah didn’t even remember half of the things he put in the statement to confirm that they were true on the stand box, “I don’t remember. I don’t know. I’m not sure.” If I make a statement I know what I’m writing and I know what happened, what the truth was and I will stand up and say, “Yes, that is true. Yes, I did say that.” Half of the things in the statement, “Oh, I’m not sure. I don’t remember.” How can you not remember if you’d made the statement yourself? That’s what I don’t understand.

PN190

So I feel for her. She’s very upset. She’s very stressed. She has been sick. She hasn’t even been, health-wise, good enough to go to look – like, she has been looking for work but she’s going through a depression stage now because of all this whole purpose. That extra amount of little bit that is owing to her, really, will make a difference and bring down her stress because she feels like she has not been treated properly and this has not been handled professionally. Everyone can say for themselves. It’s really her word against his. They were both in the office. They were both having the conversation.

PN191

So if he’s telling the truth and she’s lying, why would she be here today? Why would she be going through the depression and health for all this purpose? But, you know, with Oparah, if he made the statement he should remember what he said, because she remembers. She knows what she heard from his mouth, and now all of this has basically been turned and, “Oh no, we’re doing this and we offered her a position and she stepped down and we paid her this much.” She knows how much she was getting paid. So I think that she has not been treated fairly, really.

PN192

I mean, it’s only from what I have read though her paperwork and the conversations I’ve had and I’ve spoken on the phone, but I don’t think this is treated fairly. Whatever you’re entitled to, whatever your hourly rates are till the end of term, till the last day of the employment, that’s what you should be paid out. I’ve worked in the government for 22 years and I know how it all sort of works, even by HR. So I think there should be fairness here where she gets what she deserves. She’s not asking for a million dollars. She’s only asking for what she’s entitled to, really. That’s all I’ve got to say, your Honour.

PN193

THE DEPUTY PRESIDENT: Thank you. Anything in reply, Mr Pollard?

PN194

MR POLLARD: Only just to clarify, your Honour, that from my recollection of the evidence, when Mr Oparah was saying, “I don’t recall,” and, “I’m not sure,” I think that section of the evidence was referring to the conversations alleged by the respondent, not his own. That is where those comments were made and he was trying to put those conversations alleged by the respondent into context of the discussions that he recalled. Other than that, your Honour, that’s the end of my submissions.

PN195

THE DEPUTY PRESIDENT: Thank you. Well, I propose to reserve my decision in the matter and the parties will be advised in due course when I’m ready to publish my decision. Thank you. I now adjourn.

<ADJOURNED INDEFINITELY [11.06AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GODWIN OPARAH, SWORN PN6
EXAMINATION-IN-CHIEF BY MR POLLARD PN6
EXHIBIT #1 AFFADAVIT OF GODWIN OPARAH PN12
CROSS-EXAMINATION BY MS MILOSKOVSKA PN61
THE WITNESS WITHDREW PN96
DIMO BAJINOVSKI, SWORN TO INTERPRET PN112
ZAKLINA MILOSKOVSKA, SWORN PN112
EXHIBIT #A DOCUMENT ENTITLED SHORT OUTLINE OF CASE PN127
CROSS-EXAMINATION BY MR POLLARD PN127
THE WITNESS WITHDREW PN162
EXHIBIT #S1 SUBMISSIONS OF APPLICANT PN164