C2013/6509, Transcript of Proceedings [2013] FWCTrans 885 (28 November 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049211-1

COMMISSIONER STEEL

C2013/6509

s.739 - Application to deal with a dispute

National Tertiary Education Industry Union
and
UniLife Incorporated
(C2013/6509)
Higher Education Industry-General Staff-Award 2010

(ODN AM2008/3)
[MA000007 Print PR985117]




Adelaide

9.33AM, WEDNESDAY, 20 NOVEMBER 2013

Reserved for Decision

PN1

THE COMMISSIONER: Thank you. Good morning, I'll take appearances please.

PN2

MS K HARRINGTON: If the Commission pleases, I appear for the applicant, Kathy Harrington.

PN3

THE COMMISSIONER: Thank you.

PN4

MR S BAKEWELL: If the Commission pleases, Bakewell initial S, and I'm seeking leave to appear as agent on behalf of the respondent.

PN5

THE COMMISSIONER: Ms Harrington, any issues?

PN6

MS HARRINGTON: I have no objection.

PN7

THE COMMISSIONER: Thank you. You've got leave to appear Mr Bakewell. Ms Harrington, before we commence just to advise you I've had the occasion to make a phone call to EMA and spoke to Mr Bakewell briefly yesterday in relation to one matter. I was seeking a document that is the minutes of the organisation's board meeting of January. One item concerned your member and I was seeking the minutes and any attachments because I understand there may have been a letter from your member to either a manager or the board, in respect to a trial period of employment.

PN8

Mr Bakewell supplied me with a document which I received this morning which is the repeat of an attachment to one of the witness statements. So it doesn't serve my purpose but I don't intend to delay the proceedings in respect to that, so we'll see how we go on that. I was interested in a bit more detail about the board's consideration at that time. So just to declare to you that was my contact with Mr Bakewell. I don't think it inconvenienced you at all in the sense I didn't call you yesterday.

PN9

MS HARRINGTON: Thank you, Mr Commissioner. Can I just say that we - and I was a bit in two minds about tabling it - have a copy of the official minutes which of course don't actually reveal anything in terms of this particular issue. So I think there's a question of what's, if you like, in the public domain versus what may have been in confidential discussion of that committee.

PN10

THE COMMISSIONER: Yes, discussions are difficult to examine.

PN11

MS HARRINGTON: Yes. Yes.

PN12

THE COMMISSIONER: I was seeking to discover what your client had provided to the board in respect to their considerations.

PN13

MS HARRINGTON: Yes.

PN14

THE COMMISSIONER: I'm still in the dark as to that, so we'll see how we g o.

PN15

MS HARRINGTON: Well we'll address on that in our submissions, sir, but certainly, I mean, just I think - my friend and myself have had a discussion this morning about being expeditious in the way we're conducting this hearing today, being involved in it. So our position is that J3, Joshi 3 of our submission attached to the witness statement is the document that the board were confirming when they confirmed that they were supporting Mr Joshi's proposal. It is our understanding that J3 is actually that document, so.

PN16

THE COMMISSIONER: Okay, thank you for that. I'm ready to proceed. Are there any other changes the parties have agreed on, or issues to consider?

PN17

MS HARRINGTON: I have advised my friend also that there will be some additional documentation I'll be tabling today, just to go to the matters where we seem to be in a disagreement of fact, and I would also say that in our discussion this morning our view is that where matters appear to be agreed we don't need to traverse that ground. The focus of, I think, both of our examinations and cross-examinations will be going to matters where there appears to be a disagreement, to try and get some solution to that problem.

PN18

THE COMMISSIONER: Thank you for that. Okay, I'm ready when you are to proceed.

PN19

MS HARRINGTON: I'll now call Mr Prashant Joshi as a witness. Thank you.

<PRASHANT JOSHI, AFFIRMED [9.37AM]
<EXAMINATION-IN-CHIEF BY MS HARRINGTON [9.37AM]

PN20

MS HARRINGTON: Thank you Mr Joshi. Now just to clarify for the Commission, you've had the opportunity now to obviously prepare your own witness statement but also read the witness statement of UniLife's witnesses in this matter; is that correct?---Yes, that's right.

PN21

So now I'd actually like to take you - and I understand you do have a copy of the witness statements from the UniLife - - -?---Yes I do.

PN22

Then perhaps if we could focus initially on the witness statement for Arun Thomas?---Yes.

PN23

And the first issue I'd like you to comment on arises in paragraph 14 of Mr Thomas's statement, and we'll just wait for the Commissioner to find his documentation?---Yes.

PN24

Can we help you?

PN25

THE COMMISSIONER: So have you got copies of these statements?

PN26

MS HARRINGTON: I have.

PN27

THE COMMISSIONER: Do you want to provide them to the witness?

PN28

THE WITNESS: I do have one here.

PN29

MS HARRINGTON: He already has them, sir.

PN30

THE WITNESS: Thank you.

**** PRASHANT JOSHI XN MS HARRINGTON
PN31

MS HARRINGTON: Are you okay?

PN32

THE COMMISSIONER: I'm fine.

PN33

MS HARRINGTON: You're fine.

PN34

In paragraph 14 of Mr Thomas's statement he obviously gives an interpretation of what occurred in a conversation with you. Would you like to comment on that please?---Yes. On the 30th of January 2013 Stephen Ackland, who is the previous president, and Arun Thomas came along to inform individual staff that the general manager was basically relieved out of his duty and basically the board is seeking to replace the general manager as soon as possible, and I was advised that my proposal was accepted by the board. There was no mention on which part of the proposal or even the six months' trial basis concern was raised during this time. So the only thing I was informed is that the motion has been passed that I continue to be a advocate.

PN35

Thank you. If we can now then move to paragraph 15 of Mr Thomas's statement and it's at this point I'd actually seek to table a document, and it is a document which is an email from Mr Thomas to Mr Joshi?---Thank you.

PN36

It's concerning the UniLife volunteers' program and it's dated 22 February 2013?
---Yes.

PN37

So could you explain what this email is talking about?---Okay. In 2012 I ran the volunteer program for UniLife and to my understanding when the review was done this program would be transferred to the uni, the university, and basically based on that decision there was no ground work or any preparation was done for the program for 2013. And I was approached by Arun and also Costa, who is the previous - who was the Magill campus representative, to start the volunteer program and I did raise a concern that, you know, there's no ground work done for this program, however we can try starting it up but it will take up - it would require a lot more time than if I had time to prepare for it in the - during the quiet time in December. And basically the direction from the president then was to start the program immediately, and the board has sent us - according to him - that this program is to be started immediately, and soon after that I started working on that in additional[sic] to my advocacy role.

**** PRASHANT JOSHI XN MS HARRINGTON
PN38

So what then would you say to the statement in paragraph 15 of Mr Thomas's witness statement?---It's not true. I have never been approached to stop the program. I know that the previous - the interim general manager and Arun cancelled the volunteer and - sorry, volunteer SA and Northern Territory's membership due to the fact that we no longer have the program running in 2013. But in terms of establishing the program I was involved in it but I wasn't aware of the membership being closed until it was done much later.

PN39

All right, perhaps for convenience it might be useful to label that document Joshi 10, if that's agreed by the Commission?

PN40

THE COMMISSIONER: That's fine. Mr Bakewell?

PN41

MR BAKEWELL: Yes, Commissioner, I have no objection to the document being tendered. The only thing that I would say is that I'm in somewhat of a difficult position in respect to this document in that I have no instructions about its status, effect or otherwise in respect to my client.

PN42

THE COMMISSIONER: You've still got a chance to cross-examine on it.

PN43

MR BAKEWELL: So as far as that is concerned I'd simply note I will be seeking to adduce some evidence about its status from those concerned, subsequent in our evidence.

PN44

THE COMMISSIONER: And you've still got the opportunity to cross-examine this document as to what its meaning is.

PN45

MR BAKEWELL: Yes, of course.

EXHIBIT #JOSHI10 EMAIL FROM MR THOMAS TO MR JOSHI DATED 22/02/2013

PN46
**** PRASHANT JOSHI XN MS HARRINGTON

MS HARRINGTON: Thank you.

PN47

If we could now go to paragraph 16 of Mr Thomas's statement?---Yes.

PN48

Could you perhaps give us an explanation about the issue of training as an advocate?---Okay. Commissioner, what has happened since the beginning of the year is that once the board has endorsed my position I was verbally advised that I should start training immediately, and the only sort of training I received was in the form of mentoring by the other two advocates at UniLife, one being someone who has been there for five years and the other one has been there for almost three years. So the only training I have ever received to date is the mentoring, where I get a chance to sit with them with appeals and understand how they operate. But in terms of formal training like mediation skills or - the skills required for this job was never formally done until last week where Daniel has approved for me to go for training in Sydney, and that's for negotiation with academics and professional staff at UniSA. But prior to June there was no training whatsoever so I do - I disagree with statement number 16 of Arun Thomas's witness statement.

PN49

Thank you. I think that leaves the issues concerning Mr Thomas's statement. If we could now turn to the statement of Jennifer Coulls, and the first matter arises in paragraph 17 which concerns a meeting which occurred on 6 June 2013, where I think this was a meeting where you were meeting on your own?---Yes, that's right.

PN50

So could you give your explanation of what occurred at that meeting?---Okay. Commissioner, the point 17 of that statement is not entirely correct. I have not received any confirmation whatsoever from UniLife in terms of my roles and responsibility between January and June, and that meeting - informal meeting that I had with Jen - Jennifer was in regards to seeking for clarification and formalising the actual role, in terms of what I'm doing, what I'm not supposed to do, am I an advocate or am I still doing odd projects in between. So it was merely to clarify what is my role so that I can focus on that and not worry about the other elements that are not relevant to my new role. And there was no mention whatsoever on the redundancy because at that stage I - my wife was - we found out that we are expecting a child and redundancy was obviously out of the question at that stage. Even though there would be some support, I would be the sole bread - sole income for next year and I - it was never a discussion that I would accept redundancy whatsoever. So that statement is again not entirely true. It's taken out of context.

**** PRASHANT JOSHI XN MS HARRINGTON
PN51

Thank you. In relation to point 18 then of Miss Coulls's statement would you like to comment on matters there?---Yes. Yes, in December 2012 prior to returning back home to Malaysia I was advised by the general manager that in the New Year, in 2013, there's going to be a major shift in the way UniLife will operate, and basically he has advised me that the most suitable position that he sees me fitting into and with the board's approval will be the advocacy role. So he has asked me to familiarise myself with that position - with that role and the function before I left for my holiday in December. So that when I come back in January I can basically start into that role after finishing up a few of the loose ends of my previous role. So I was aware from December onwards that the role no longer exists in the New Year.

PN52

In relation to then point 20 where you're reputed to have made a statement; could you give your view about what actually you said at that time?---Okay. As I mentioned before, Commissioner, I have expressed my concerns about no formalisation of the role and I've been assigned so many various tasks relevant to my previous position. The indication that I was trying to move forward to Jen is to basically advise that I'm looking for something that's more relevant to my skills. There was never an incident where I would not accept the advocacy role, because if it's the case I wouldn't have put in the proposal in January, because I know that I do have some understanding on the role before even I took that position up. And as I mentioned, as we were expecting a child it was never a question about accepting a redundancy whatsoever.

PN53

Thank you. If we could now then move to point 26 of Miss Coulls's statement; would you like to comment on her comments there?---Yes, definitely. I have been undertaking a lot of other projects in between January to June from a submission for the minor capital works which was directed by the interim general manager, assisting with the counter operation, which used to be part of my old role, trying to negotiate events and activities on campus, despite being told that I'm an advocate, and I've got a few examples that I could add on.

**** PRASHANT JOSHI XN MS HARRINGTON
PN54

Yes, in fact at this point we'd be seeking again to table correspondence, this time between - from Miss Coulls to Mr Joshi concerning her requests about him undertaking particular activities during this period of February to July.

PN55

THE COMMISSIONER: Yes.

PN56

MS HARRINGTON: So there are three documents in all and again my friend obviously has not had the opportunity to look at these documents yet. So perhaps if I hand up the first one which is the - and Mr Joshi can speak to each of those as I hand them up.

PN57

THE WITNESS: Yes. Thank you. The - - -

PN58

THE COMMISSIONER: Just a second?---Yes.

PN59

So, Ms Harrington, why hasn't Mr Bakewell seen all these documents? Now this is four documents you're tabling today.

PN60

MS HARRINGTON: Yes.

PN61

THE COMMISSIONER: Why hasn't Mr Bakewell seen them?

PN62

MS HARRINGTON: Well to be honest we received the submissions late on Monday.

PN63

THE COMMISSIONER: Yes.

PN64

MS HARRINGTON: I suppose I should have sent them yesterday to Mr Bakewell. I did alert him this morning, but I have to say my focus quite simply was actually getting ready for the case today.

**** PRASHANT JOSHI XN MS HARRINGTON
PN65

THE COMMISSIONER: It was a bit tight. The timeframes were tight.

PN66

MS HARRINGTON: So I was remiss in not actually certainly sending these, and I accept that.

PN67

THE COMMISSIONER: Okay.

PN68

MS HARRINGTON: But I think they are fairly - in the sense that they are relatively uncontentious in what they are, and obviously he'll be able to check those with his witnesses but we are hoping that once they jog people's memories it shouldn't be an issue that's then in dispute.

PN69

THE COMMISSIONER: Okay then proceed.

PN70

MS HARRINGTON: Sorry, just going to that document?---Yes. The first document is an incident that happened at Magill campus. As I used to manage the campus and the activities on the campus, including the counter management, this particular student had an ongoing issue with Suti, who used to work at Magill campus. And basically as soon as the concern was raised I was immediately involved in the discussion on how to resolve this, and obviously this has also created another doubt in my mind, that it's again an ongoing project or linkage between my old job and what I'm doing in 2013. So that's where all the confusion and all the frustration became worse for me, because this is something that I managed on a day to day basis in my old role.

PN71

Thank you. The next document concerns rostering arrangements?---Thank you.

PN72

So could you just give us background to that?---Yes, sure. This is Jen's email to me requesting to basically structure the operational hours for the counters, which is where we operate and that's our first point of contact for students, with the student association, and basically this is where I spent a lot of my time negotiating based on the contracts that the individual staff members have, and coming up with a structure that's workable for the board staff members in those two - on those counters. And this is again part of - a major part of my previous role.

**** PRASHANT JOSHI XN MS HARRINGTON
PN73

Thank you, and the final document I'll be tabling - which is a two page which I haven't stapled, but I've put them this way for everybody - concerns minor works programs?---Thank you.

PN74

Could you just give us background to that?---Yes, sure. I was approached by Jen Coulls in June to prepare a proposal to UniSA in terms of minor capital works for the counters that we have got in Mawson - in, sorry, Magill and City East. So basically this email correspondence links to her direction that I will be the main point of contact between UniSA's project officer for this project and myself on behalf of UniLife to come up with a structure on what we would require in those various campuses, and basically again this took up a lot more of my advocacy time, and created another confusion. And as you can see it's dated on the 21st of June. This is towards the end of - this is just one week, one and a half weeks before I actually got a redundancy letter. So if I was really interested[sic] to continue working with UniLife I wouldn't be going through all this extra work, I suppose.

PN75

So just going back, if you don't mind, to paragraph 26 of the witness statement of Miss Coulls, could you then just advise your views again about her statement there?---I disagree with statement number 26 due to the fact that besides myself and another staff member, Andrew, no one else is aware on some of the concerns that were raised here in terms of how to organise events, how to apply for minor capital works, counter rostering. It's a skill that I developed while I was in my previous role and therefore it was easier for me to pick up that skill - to pick up that task obviously upon the request from the general manager and the president, than to actually advise them on how to manage that task itself. Because it was easier, and I have been in - I have been building good reputation with the uni in terms of delivering those various projects.

PN76

Thank you. Could we then move to paragraph 29 of Miss Coulls's statement?
---Yes.

**** PRASHANT JOSHI XN MS HARRINGTON
PN77

Is there anything that you'd like to comment there on that?---Well number 29 is some - why I was so surprised with the redundancy letter. It clearly indicates that despite being in a limbo for the last six months on - from that day, I still had undertaken a lot of other projects in the hope that - I see myself working for university and obviously this is a surprise. The redundancy was a surprise. I was not expecting that at all, especially when I know that advocacy is something that a uni is prepared to fund. But at the same time with all the minor - all the other jobs in between, it made me wonder is there another position between advocacy and what I used to do, and that's why I was extremely surprised and disappointed with the redundancy because it's not reflecting what I have done for the six months during the transition.

PN78

Thank you. Is there any comment you'd like to make on paragraph 32 about the issue of confidentiality and the conduct of the meeting with you on 4 July and the subsequent meeting with other staff on 5 July?---Yes. During the meeting Juliet and myself were present in that meeting. We requested that we see the new structure so that I can evaluate where I see myself fit in the new structure, as requested in the redundancy letter. The advice given by Jen at that time is that, "Due to the fact that none of the other staff members have seen it I'm not prepared to share it with you". However that went against some - the point that how am I supposed to come up with another alternative solution when I don't know the new structure? So on the next day on the 30th - was it the 30th?

PN79

5 July, paragraph 32 and it's concerning the meeting on the - - -?---Yes.

PN80

Yes?---So on the 5th of July I received an email in the morning explaining my redundancy payout and also the new structure. Just a one page new structure on what the board has approved, and basically I had two days from then to actually respond to where I see myself fit. And that is where I have written to UniLife seeking that I reject the redundancy due to the fact that I see myself continuing as an advocate.

**** PRASHANT JOSHI XN MS HARRINGTON
PN81

Thank you, so in fact the proposal, what was called I believe the - I'm just getting the right one here - the consultation document concerning the Managing Change Process, it was never actually shown to you; is that correct?---No, I have never seen the document until I met the NTEU on Monday to discuss on my options, and that's when Juliet showed me the document and that afternoon I had a chance to speak to one of the staff member who also shared the document, because I have seen through the union previously in the morning. So prior to that I have not seen the new structure, what the job contains, and how the new structure will be basically, or the change document.

PN82

Just for the Commission's information that is the Jan Coulls attachment 5 document that I'm referring to in that matter. Could I then go to paragraph - - -

PN83

THE COMMISSIONER: Before we go any further.

PN84

MS HARRINGTON: Sorry.

PN85

THE COMMISSIONER: Do you want to make these one exhibit?

PN86

MS HARRINGTON: Yes, sorry.

PN87

THE COMMISSIONER: Joshi 11.

EXHIBIT #JOSHI11 THREE DOCUMENTS - VARIOUS CORRESPONDENCE FROM MISS COULLS TO MR JOSHI

PN88

MS HARRINGTON: Yes, Joshi 11, thank you.

PN89

THE COMMISSIONER: Thank you. I assume, Mr Bakewell, you have the same reservations?

**** PRASHANT JOSHI XN MS HARRINGTON
PN90

MR BAKEWELL: The position is the same, Commissioner.

PN91

THE COMMISSIONER: Thank you.

PN92

MS HARRINGTON: If we could now go to paragraph 39 of Miss Coulls's statement?---Yes.

PN93

Could you give advice about how whether you agree with those statements?
---Okay.

PN94

And how you saw those options?---Okay. Commissioner, I disagree with number 39. When I rejected the redundancy letter with a proposal that I will fill the advocacy role, basically the function that I did since January, and in the letter of offer that was given to me there was no mention on a fixed term whatsoever in the first option. The other two option clearly stated that it's fixed term and that's a massive reduction in my salary, and obviously sort of full-time will be point 8 or point 6 and the first option it was a ongoing, "Continue what you are doing, and basically at the end of February if you can't find anything between" - "in UniLife, the redundancy payout will be there" and that's how I understood the actual agreement that I got. And there was no doubt in my mind that it was an ongoing position. It was never raised as a fixed term because if it is I will not be here today.

PN95

Thank you, well I think that finishes my questioning on Miss Coulls's statement so now if we could go to Mr Randell's statement, and the first issue there is in relation to paragraph 17 of Mr Randell's statement. Would you like to comment on that paragraph?---Yes. Yes, so I truly respect Daniel to take this position as he was - besides the constant changes that we were going through he had to deal with a lot of situation that needed immediate attention, and he had taken the time to take me out for lunch to discuss on my future beyond - my future basically. And in that meeting, it was an informal meet - an informal lunch where we discussed on where I see myself heading, I suppose, in terms with UniLife and what are my goals and what I used to do previously before the changes happened with UniLife. And to that extent we briefly spoke about the professional development but at the same time I have then given a list of professional development courses I would like to take, to the team leader - or now the team leader, basically to consider. So it was relevant but it was done before we actually met on the day.

**** PRASHANT JOSHI XN MS HARRINGTON
PN96

All right, could you then comment on Mr Randell's statement in paragraph 18?
---Okay. I sincerely believe that I have - did not mention the reference - did not mention Jen's name in that statement. I have been very stressed over the last 13 months where a lot of the reviews and restructuring process, and more than two incidents where a report or statement that I have said were basically taken out of context and did not truly represent the actual situation, which made me cautious and that's probably why I have actually mentioned that, you know, "Please keep this between ourselves because I have seen reports that are written changed to" - you know, it basically has taken the wrong way because it was interpreted differently by different groups. It was in no intentionally addressing to one particular person whatsoever.

PN97

Thank you. Could we now then go to paragraph 22 and would you like to comment on the statement there?---Twenty two?

PN98

Twenty two, "I'll do whatever you want me to do"?---Yes, "I will do whatever you want me to do" in that point is in reference to my interest in business development, events on campus and building relationship with internal and external to UniLife that I have been doing in my previous role. Soon after that, Daniel mentioned that he's - he doesn't see that business development would be something that UniLife will do in the near future, and that is where I said, "I will do whatever you want me to do" in context that I was in the impression, because of the restructuring again, there might possibly be another position between what I'm qualified to do and what I've been put to do as an advocate. So it's to do with how I can see myself fit in another structure which I didn't - I don't know until just a couple of weeks ago.

PN99

Could we then go to paragraph 36 of Mr Randell's statement; can you comment on that?---I truly disagree with this statement as there was never once anyone mentioning to me that I am on a fixed term contract whatsoever. The first time I have ever heard of that fixed term and related to my name was on the 4th of October when UniLife responded to NTEU with the response saying that, "Prashant is on a fixed term contract and the redeployment has been done as he's not an advocate". And prior to that there was no mention on fixed term whatsoever, as again it's not mentioned in the letter of offer.

**** PRASHANT JOSHI XN MS HARRINGTON
PN100

Thank you. That end - - -

PN101

THE COMMISSIONER: Sorry.

PN102

So you agree with that statement in paragraph 46?---Thirty six.

PN103

36?---Yes, 36. Right?

PN104

MS HARRINGTON: No, no. No, you don't agree?---Yes, 36 I don't agree.

PN105

It's not an agreed statement.

PN106

THE COMMISSIONER: Okay, thank you.

PN107

THE WITNESS: Yes, I don't agree with that because there was never mention on fixed term whatsoever.

PN108

MS HARRINGTON: So you're saying that term wasn't used at all?---It was never used.

PN109

Thank you. That ends my examination on the witness statements of UniLife. There are just a couple of other questions I'd like to ask you, Mr Joshi?---Sure.

PN110

And they really go to the issue about how you see your future employment with UniLife?---Yes.

PN111

Could you explain why you believe it's actually a workable situation for you to be in UniLife?---Definitely. Commissioner, besides the uncertainty that I have gone through over the last - since January, the last 11 months, I truly believe that my relationship with the management and also with the student representatives have not been changed. I still do respect them for the decisions they make. I still work alongside with them and I have no doubt that I am able to, you know, forget everything that has happened and move forward in a positive manner. Because I truly see myself being a crucial part of UniLife and its operation, as I've been involved with them since 2007 and I am passionate about it. I am still here despite of all that has happened. Just because I think that helping a student getting through a difficult time, making sure they understand that there's a balance between studies and non studies, where they get involved in clubs and societies, that's a crucial part of their university life. And I see myself growing, if not, you know, trying to establish that goal within UniLife and also potentially with UniSA, because I see that's a very crucial part of the student experience. And, you know, I am grateful for this opportunity that I have given[sic] so far and I want to see myself - I do see myself continuing as a part of the new structure, the new organisation, the new branding. Because that's what I enjoy doing and that's why I am still here and so passionate about fighting for this, even up to this very end.

**** PRASHANT JOSHI XN MS HARRINGTON
PN112

And a final question?---Yes.

PN113

Why do you believe that you could be successfully redeployed into the position of clubs and events officer, which is currently the issue?---Sure. Commissioner, the clubs and events officer position worked alongside with my previous role, where we worked together in establishing events, activities, regardless of whether it's clubs or - a lot of on-campus were done by my team, but we worked together. So I truly understand the logistics, the requirements behind how to work with the different club organisers, because I have done a lot of projects with them. I'm confident that I am able to pick up and continue without any training. If not, if there's a new system, you know, I'm happy to go through the training for the new system. But in terms of the reputation, the rapport and also the relationship that I've got with - not even the club members but also with the UniSA senior managers is still the same. It's not changed despite of all these uncertainties. So I see myself filling this role without any problems. I can continue as soon as I get into that position.

PN114

Thank you, that ends my examination.

PN115

THE COMMISSIONER: Thank you. Mr Bakewell?

<CROSS-EXAMINATION BY MR BAKEWELL [10.10AM]

PN116

MR BAKEWELL: Thank you Commissioner.

PN117

Prashant, do you have your witness statement there in front of you?---Yes I do.

PN118

And do you have the attachments with your witness statement there as well?

PN119

MS HARRINGTON: They can be provided.

**** PRASHANT JOSHI XX MR BAKEWELL
PN120

THE WITNESS: Thank you. Yes I do.

PN121

MR BAKEWELL: Thank you. Now could I ask you to please have a look at the attachment that's numbered Joshi 3?---Yes.

PN122

Is that the document that you submitted to Keith that you would understand subsequently went to the board for consideration?---Yes, sir.

PN123

Could I take you to the second page of Joshi 3?---Yes.

PN124

And to the second paragraph, and a statement there that is in that document that says, "I'm happy to fill the role of an advocate and also advocacy marketing, from now until a period between 1 July to 31 August as a transition role, until I choose one of the options below". Do you see that?---Yes I do.

PN125

Would you agree that based on that part of your proposal at least, that at the end of July or somewhere in August if your proposal was adopted there would be a review of the situation and certain proposals then that you number 1 through to six might apply; is that the idea?---Well the idea was for the new billing - for the new financial year that once the budget has been reviewed a position, or if not something between advocacy will be established and I see myself into that new system.

PN126

Okay, so can I take you to number 1 under that paragraph?---Yes.

PN127

Where you say if you choose not to continue as an advocate you would seek a redundancy package; do you see that option there?---Yes I do.

PN128

So is it true to say that under your proposal you wanted the option in July, if you so chose it, to accept a redundancy package and leave?---Yes, but I never indicated that I wanted a redundancy.

**** PRASHANT JOSHI XX MR BAKEWELL
PN129

But that was an option that you put?---I - it was because of the new cycle where if there was not a option I would accept that. Yes.

PN130

Option number 2 you say, "If I do not choose to apply for the advocate position advertised after 1 July I would seek a redundancy package". Am I right in taking it from that that you understood that from 1 July an advocate position would be advertised?---I was in the impression that it will be advertised. Yes.

PN131

Yes, and was that the job that you were doing; you were under the impression that that was the job that would be advertised?---Yes.

PN132

Yes?---But as I mentioned it's to do with my salary as well, to cap my salary on that level.

PN133

And under option 2 if you chose not to apply for that advertised position then you wanted the right to take a redundancy?---That's right.

PN134

Option number 3 you say, "If I do not choose to apply for the advocate position but apply for another position" - and I take it you are referring to the advertised advocate position in option number 2?---It's any position like the club's officer, the - - -

PN135

Sorry, so when you say, "If I do not choose to apply for the advocate position"?
---Sorry, yes. Yes, sorry.

PN136

Yes, are you referring to the position in option 2?---I was referring to the position in option 2, yes.

PN137

Yes, "But apply for another position" and you've got there, "if advertised" you would notify the GM and the board of your intentions "and follow the appropriate application process". What do you understand to be the appropriate application process?---The interview and obviously the submission and the whole works behind employing a new staff member.

**** PRASHANT JOSHI XX MR BAKEWELL
PN138

Okay, and would you understand that would entail then UniLife appointing a person based on merit of the candidates who apply?---Well I do understand that. Yes.

PN139

Option number 4 you say if you choose to apply for the advocate position and you are unsuccessful you would seek a redundancy from 1 July 2013?---Yes.

PN140

Am I correct in saying it therefore entered your mind that from 1 July it was possible that your position could be redundant if you were unsuccessful in being appointed to the advocate role; that's why you put option 4 in there?---I disagree with that. The reason why this letter was written is so that in the new financial year with the new structure I see myself in applying for another position besides the advocacy, and that's why this letter was written, purely for that new financial year.

PN141

But the words you have here, you say if you choose to apply and you are unsuccessful. It seems to me you thought about that as a possibility; is that correct?---For the advocacy role. Yes.

PN142

Yes, and you also thought it was possible that you might not be successful, in which case you would want a redundancy?---Yes, that's right.

PN143

Further, in option 5 you say that if you apply for the advocate position and you are appointed, that you want the right to decline the offer and have a redundancy?
---Yes.

PN144

Is that correct?---Yes.

PN145

So in other words the choice would be yours even if you applied for the role and you were successful; you wanted the right to say no?---Well this is - the advocacy role is different than my proposed idea initially. It was to do marketing and advocacy and this is just a pure advocacy function. So, yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN146

You then say if you chose to apply for the position and you accept it, that you would accept dropping your salary; that's in option 6?---Yes, that's right.

PN147

The second-last paragraph that follows under that you say, "The timeline for the change between 1 July and August would allow UniSA to work with the budget without compromising the service". And in the last paragraph you say you would "consider the proposal to be a transition role" while you were going through this restructuring period. Can I ask you to explain what you mean by the words transition role?---Sure. The transition period is basically during the restructuring, the re-branding and the remodelling of the whole organisation. So it's basically to maintain the advocacy, marketing and the function while we go through this transition period.

PN148

Would this transition period in respect to your proposal come to a conclusion in about July - - -?---No, not any more because that has changed with the second round of restructuring.

PN149

Sorry, let me - when you wrote this proposal - - -?---Yes.

PN150

- - - was it your understanding that the transition period would end in about July?
---With the new financial year, yes.

PN151

THE COMMISSIONER: Mr Bakewell, are you leaving this document?

PN152

MR BAKEWELL: Yes I will be leaving this document at this point.

PN153

THE COMMISSIONER: Before you do.

PN154

MR BAKEWELL: The document in question I will not be tendering at this stage. It will be tendered as part of one of my witnesses's documents.

**** PRASHANT JOSHI XX MR BAKEWELL
PN155

THE COMMISSIONER: I'm not sure which document you're referring to.

PN156

MR BAKEWELL: I'm sorry. Sorry, this - sorry, wrong document. This document is actually already in evidence as I would understand it. Sorry.

PN157

THE COMMISSIONER: Yes. Do you wish - - -

PN158

MR BAKEWELL: Yes, so we'll be leaving the document at this stage.

PN159

THE COMMISSIONER: Yes, but you've finished your questions on it?

PN160

MR BAKEWELL: Yes.

PN161

THE COMMISSIONER: Okay.

PN162

I have one question?---Yes.

PN163

In regard to these options you refer to the advocate position. What advocate position is that that you have in mind? Is it the role you're already involved in, which is backfilling for another advocate as I understand it from the documentation, or is it some other role?---Commissioner, the - just to backtrack the purpose of this letter, it's to promote the marketing aspect of it as a function, as a superior role than the advocacy function.

PN164

That's not my question?---Yes.

PN165

My question to you - I know what you're intending?---Yes.

PN166

But you have got six options here and you have been asked questions about what your perception was in each option?---Yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN167

If I take you to number 2 it says, "If I choose not" - "If I do not choose to apply for the advocate position advertised after 1 July", what position is that?---That is the position that I am filling now, or the third advocacy position. So the role I am doing now. Yes.

PN168

So it's the role you're doing now?---Yes.

PN169

It's not any other role?---Yes. But this was before I got my redundancy option.

PN170

Well - - -?---This was written in January.

PN171

Yes it was?---Yes.

PN172

But you had already had some discussions about your future, hadn't you?---No, but that was - I have no understanding that this was passed as a motion until the time I saw the support document to say that this was discussed. All I knew was my job as an advocate was approved. So I wasn't aware that this is what they have agreed upon. They have agreed that I move to the advocacy role, as the motion states, not those - - -

PN173

Where did you get the date 1 July 2013 from?---It was a recommendation by the previous general manager, Mr Rudkin, that that would be the new financial year, the budget would be approved by then for the new structure, the new model. And, you know, there's potentially other positions besides the advocacy on that. That's why the other options of applying for other positions were written.

PN174

Okay. The second paragraph refers to a period between 1 July to 31 August. That's not a long period, is it?---Well this is from January to - till the latest in August, yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN175

Yes, sorry, 1 July?---So basically now, that means January, till the 1st of July to 31st of August.

PN176

So 31 August, why is that a feature?---Again this was a suggestion by the previous general manager that this is the time when if any delays - based on his experience, August would be when everything will be finalised.

PN177

Okay, thank you?---Commissioner, can I add one last point to this?

PN178

In respect to what?---In respect to this letter? I have written this with no time limit, like with literally a day time limit and this was not consulted with the union at that stage, and if I - and that's why some of the points are obviously redundant in terms of repeating myself. But this is something that I have written on my own.

PN179

Yes, I accept that?---Yes. Thank you.

PN180

Thank you.

PN181

Mr Bakewell?

PN182

MR BAKEWELL: Prashant, so in light of that proposal that you put to the board is it correct that subsequent to that Arun approached you and verbally advised you that your proposal had been accepted?---Yes. My role as an advocate has been accepted.

PN183

Yes?---Yes. There was no mention on other specs like trial or which part of the elements expect - are accepted.

PN184

No, he just said to you that your proposal had been accepted?---"Your position" - "Your role has been accepted", yes, as advocate, as an advocate.

**** PRASHANT JOSHI XX MR BAKEWELL
PN185

Did he not say to you the words, "Your proposal has been accepted"?---No I don't recall, but I'm very certain that it's, "The position has been accepted", the transfer basically, because that's what we were referring to.

PN186

Can I take you to paragraph 11 of your statement?---Yes.

PN187

And you think it says, "During the period February to July 2013" you received no other communication or confirmation of your role and responsibilities - - -?---Yes, that's right.

PN188

- - - nor any letter advising a change in your status?---That's right.

PN189

Yes, other than what - - -?---The role will - - -

PN190

- - - Arun had advised you?---That's correct.

PN191

You as I understand it had a meeting on 6 June 2013 with Jennifer Coulls?---Yes, that's right.

PN192

And at that meeting is it correct that you raised concerns about your job, your position in what would be the proposed new structure?---No, I was referring to the formalisation of my - the role has not been done even - although it was June at that stage.

PN193

Okay?---It was not to do with the structure that was presented, the one page structure that was given to us on the weeks before that.

PN194

This is before the structure has been announced so what I'm putting to you is that you sought out Jennifer to express to her your concern about where you would fit in the new structure?---I've - - -

**** PRASHANT JOSHI XX MR BAKEWELL
PN195

Is that correct?---No. No, that's not correct.

PN196

What is?---The concerns - - -

PN197

Why did you approach her then?---The concern was that I have not received any formal advice on what I am supposed to do in terms of my roles, because I had advocacy and non advocacy position description, in terms of tasks I do on a daily basis. So the purpose was it - was to establish what am I employed to do here at UniLife.

PN198

But wasn't it your understanding at that point in June that what had been accepted was the proposal you had put to the board in January?---No. No, I was on the understanding that my position has been moved to the advocacy role.

PN199

Yes, but wasn't your proposal with your advocacy role that entailed all those six elements that you put to the board in January?---Yes, and it also entitled to a lot of other things that I never did because I was told not to do, like the marketing aspect of it.

PN200

So if it was your understanding that the proposal as put to the board in January had been accepted would it not have been the case at around June you would be thinking about that July date coming up and what might be happening to your employment?---No, because there was no formalisation whatsoever and in my mind I was in the impression that probably there is something else that is coming up with this new structure. Because when the new structure was given to us there were whispers around the table with the staff members that I'm very close to as well that a few of them are leaving. So basically in my mind there was really a potential change in the structure.

PN201

Your proposal in January effectively put a punctuation mark on your employment in July under each of your proposals as to whether or not you would be redundant or not; isn't that correct?---It was to be a new structure, yes, but not to entirely correct in this context.

**** PRASHANT JOSHI XX MR BAKEWELL
PN202

So isn't it reasonable that in June you would be concerned about what's going to happen with your employment in July?---No, because there was nothing formalised so there was no letter of offer, terms of reference whatsoever given to me and in my mind I assumed that this is ongoing until the new structure is there and the letter of offer is being offered. So I never thought that the six points and the letter meant any difference because I never implemented any of those things, because I was asked not to do so. I was just asked to keep quiet and be an advocate and do everything else in between.

PN203

So is it your evidence that you weren't concerned at all about what might happen in July?---I didn't think it applied any more because again no communication whatsoever from UniLife.

PN204

Can I take you to paragraph 15 of your statement?---Sure. Yes.

PN205

And I think paragraph 15 is written in the context of your paragraph 14 where a meeting was held where you were handed - - -?---Yes.

PN206

- - - a document which I think you've referred to as Joshi 4, "Notification of redundancy"?---That's right.

PN207

And you say that you were extremely surprised - - -?---That's correct.

PN208

- - - that you were redundant because of your previous role of campus manager. If I put the issue of campus manager to one side at one moment, wouldn't the issue of a redundancy for you in the context of your proposal in January be entirely consistent?---No, because none of the proposal was meant to - none of the proposal was implemented or accepted by the board, except for a verbal conversation. So in my mind I know I had the job as advocate but in what context I have no idea because it was never formalised.

**** PRASHANT JOSHI XX MR BAKEWELL
PN209

So just to go back on what you said then, are you saying you didn't accept what Arun put to you from the board as being acceptance of your proposal?---It was accepted that I move to the position but in what reference, like shouldn't there be a formal communication back in terms of what is the agreed outcome or contract or even employment options?

PN210

So is your evidence to the Commission that you were surprised?---Extremely surprised because this is to do with the old job.

PN211

That your position in July would be redundant?---Yes, because as you see here it's the campus and volunteers' coordinator and not the advocacy - if the proposal was to accept - and I follow the terms of it, is to be with the advocacy position not campus position. The redundancy is for a position that doesn't exist since end of December last year.

PN212

Can I suggest to you that in the meeting that was held on that day, in that meeting that you refer to - - -?---The 4th of July?

PN213

Yes, on 4 July?---Yes.

PN214

That Jen Coulls advised you to go home on full pay and return to work on the following Monday; is that correct?---The Tuesday.

PN215

On the Tuesday, okay?---Yes.

PN216

Did Jen make it very clear to you at that meeting that you were privy to information in advance of the official restructure being advised to all staff?---Yes, but I didn't get any information till everyone else got the information.

PN217

Did she make that point clear to you?---Yes she did. Yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN218

So you were the first person to know?---I didn't know the structure. She didn't show us the structure.

PN219

Sorry my question is, were you the first person as far as you were aware - - -?
---To my redundancy, yes.

PN220

- - - to know?---For my position, yes, but not to the aspect of the structure.

PN221

Yes, and that Jen advised you that the reason that she wanted you to go home and consider the information and not divulge anything was because of the fact that you were the first to know and the information was not yet out with the staff?
---That is not correct because it was to do with my redundancy. It was not to do with the new structure which I have not seen till the Friday.

PN222

Would you accept a proposition that Jen decided to meet with you as a priority in front of all staff because she was concerned about you?---I don't agree with that because that - my initial request to meet was in June not in July. So if it's - it was - if it's a urgent - sense of urgency it should have been done in June, because it was four - 6th of June according to her statement that I met her raising my concern, and it only happened in July the 4th. So that again doesn't show that she has done the right thing.

PN223

Is it correct that Jen said at that meeting to keep the matter confidential out of respect for the other staff until the general meeting with staff had been held on the other day?---Yes and I - - -

PN224

Do you recall her saying that?---- - - I have kept to that, yes.

PN225

Can I please take you to one of the attachments, Prashant, in your statement which is numbered Joshi 6?---Sure. Yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN226

And I understand this letter is written in the context of you responding to the meeting of 4 July?---That's right.

PN227

So you would accept that UniLife gave you the option, the ability to respond to that meeting of 4 July with your ideas?---No.

PN228

They didn't ask you to go away and consider what your options were?---They did but with one day - one and a half day's notice. Yes.

PN229

You say here in the second paragraph, "I wish to continue in my role as student advocate as previously agreed and appointed by the UniLife board at the end of January"?---That is correct.

PN230

Do you see that?---Yes.

PN231

The proposal put to you that was agreed by the UniLife board was agreement to your proposal, wasn't it?---Yes.

PN232

Your proposal at points 1 through to 6 I suggest to you does not anywhere suggest you have an ongoing role beyond July, August, as advocate. I'm happy for you to have a look at that document, which I think is Joshi 2?---Yes. Joshi 3, yes. Well that's an intention that the new structure will be established by then.

PN233

But none of your options say that you have an ongoing role and an entitlement to that advocate role beyond July, August, do they?---I disagree. If you - if this is to be accepted - - -

PN234

THE COMMISSIONER: Sorry, Mr Bakewell, what are you putting to the witness? That the board agreed to what; his proposal?

**** PRASHANT JOSHI XX MR BAKEWELL
PN235

MR BAKEWELL: The board agreed to his proposal.

PN236

THE COMMISSIONER: In totality or - - -

PN237

MR BAKEWELL: In respect to the role being run for that period of time until July and thereafter a review.

PN238

THE COMMISSIONER: To 1 July?

PN239

MR BAKEWELL: Yes, a review to occur.

PN240

THE COMMISSIONER: I'd make the point it's a very small articulation of what was approved by Mr Thomas to the witness and I put it to you there's almost a page of notes in respect to the minutes in regard to the perception of the position of the board.

PN241

MR BAKEWELL: I understand.

PN242

THE COMMISSIONER: And the position of the board may be something different. They may communicate acceptance but isn't - this is the real meat of what they intended and what they made a decision on.

PN243

MR BAKEWELL: Yes.

PN244

THE COMMISSIONER: So I just don't want this questioning to go to a few - that you're putting something - - -

PN245

MR BAKEWELL: I understand. I understand the point you're making.

PN246

THE COMMISSIONER: - - - which is broader in concept than just approval.

**** PRASHANT JOSHI XX MR BAKEWELL
PN247

MR BAKEWELL: Yes.

PN248

Can I please take you in your statement, Prashant, to Joshi 1?---Yes. Yes, got that.

PN249

Am I correct in characterising that document as your letter of offer?---Yes, that's right.

PN250

To your original employment?---That's correct.

PN251

As campus manager?---That's right.

PN252

Can I take you to the second page of that document please, which I think is entitled Employment Agreement?---Yes.

PN253

And the first paragraph there refers to your appointment commencing on 1 October 2010 on a full time continuing basis; do you see those words?---Yes I do.

PN254

Can you identify - sorry, the acceptance that you subsequently made of one of the options that UniLife put to you regarding your future employment was subsequently put in a letter of offer to you, as I understand it?---That's correct.

PN255

And in that respect can I please take you to Joshi 8. Do you have that document in front of you?---Yes.

PN256

Have you found that?---Yes, I have found that. Thank you.

PN257

Can I go to the second page of Joshi 8 which again is a letter of offer?---Yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN258

Would I be correct in saying apart from Joshi 1 or 2 I think it was, Joshi 1, which was your original letter of offer, this is the only formal letter of offer that you have?---That is correct.

PN259

Can I take you to the second paragraph of that offer and it says, "Your employment will, unless terminated in accordance with clause 12, end on the 28th of February 2014". Do you see that there?---I do.

PN260

Would you agree that that is a fairly unequivocal statement about when your employment would end under this contract?---This position, yes, but not my employment.

PN261

Can I just take you back to that? You said this position not your employment. The words say, "Your employment". Can you see that?---Yes, but I'm a continuing staff member from the previous role.

PN262

What do the words say?---It shows a date that it finishes, the position finishes.

PN263

Does it refer to your position or your employment?---The position.

PN264

Can you show me where it says, "Your position will end on"?---Well "The position will be a student advocate and it will end on the 28th of February, and we will get in touch with you basically four weeks before to advise if there's a future contract or position". That's what I understand from the letter.

PN265

It goes on to say that, "UniLife will confirm with you at least four weeks prior to the 28th of February regarding your ongoing employment" and whether they intend to offer you a further contract?---Yes. In my opinion that was the - once Marika comes back, what's - what would be my option.

**** PRASHANT JOSHI XX MR BAKEWELL
PN266

Okay, so I'll get to that in one moment. Is it also true that the context to this proposal suggesting that your employment will end on 28 February - - -?---As - - -

PN267

- - - unless a further contract is offered to you has been put in the context of why this job exists, and the reason that this job exists is because it's backfilling for Marika; is that correct?---For this position, yes.

PN268

And Marika is away as you understand it, on an absence at the moment?---Yes.

PN269

And she's due potentially to return to work on or around 28 February 2014?
---That's right.

PN270

So the end date of this contract of employment relates to the potential or projected return to work of Marika?---That's correct.

PN271

Prashant, if I were to contrast this letter of offer that you have agreed to with Joshi 1 letter of offer there's one thing that is very apparent, in my view, which I want to put to you and that is that this contract has an end date with a right of renewal resting with UniLife, whereas your other contract had no such clause. It talked about ongoing employment. Can I put to you that that is two very different things?---I don't agree with that because when I signed this it was to do with this position, not to do with my employment, because otherwise I would have addressed this much earlier and not now.

PN272

Can I take you to paragraph 34 please of your statement?---Yes, got it.

PN273

Sorry, before I do that I want to put a proposition to you that goes like this. The letter of offer that you signed which we've just had a look at, Joshi 8, that occurred against the background of the restructure that was announced by UniLife in June, July. Would you agree that you signed that as a result of those events?---Could you please rephrase that?

**** PRASHANT JOSHI XX MR BAKEWELL
PN274

Sure. There were events in June, July?---Yes.

PN275

Where UniLife announced a restructure?---Yes.

PN276

It talked to staff generally and it talked specifically to you. Following those events and discussions with you and the union that led to you signing that new letter of offer; would you agree with that?---That's - that is correct, yes.

PN277

Would you further agree that that restructure process in June, July - let's say by the time we got to the end of July that particular restructure had ended?---No. I still believe the end is restructuring period[sic] because there is constant change every day in the company and jobs are still changing.

PN278

So what happened then, if you say no? What further restructure was announced apart from that big one - - -?---Well - - -

PN279

- - - between that period that you were spoken to and the end of July?---Sorry, I thought you meant till now. Yes till - - -

PN280

Until now, okay?---Yes, if - till now there were many changes, yes.

PN281

Let's talk about that for one moment. Is it true that the next announcement of a restructure after the June - let's call it the June / July restructure for want of a better word?---Yes.

PN282

The next announcement was in September, correct?---That's correct.

PN283

Nothing happened in between?---Well there were implementation of the restructuring but - - -

**** PRASHANT JOSHI XX MR BAKEWELL
PN284

But there was no announcement of a restructure, was there?---No, not until Daniel started.

PN285

Correct, and after you signed that letter of offer, Joshi 8, you performed work under that position, under the advocate position that you've signed for Joshi 8, and you've done that since, haven't you?---Yes.

PN286

If I can take you to paragraph 34 of your statement and I'm going to refer to this broadly as the September restructure?---Yes, sure.

PN287

If that's okay with you?---That's okay.

PN288

As I understand it there was a meeting with you and you were provided with a letter which you refer to as Joshi 9, where at that meeting as part of the restructure process you were advised that there were no changes to your role?---Yes, my ongoing role.

PN289

Yes?---Yes.

PN290

So the restructure that happened in September did not impact upon you?---It did not impact me, no. But it's a - it's different in terms of the offer of the position is different. The job has changed a lot.

PN291

Do you agree with the statement - - -?---The structure has not changed, yes.

PN292

- - - at Joshi 9 - Joshi 9 that was given to you - that your job didn't change, your salary didn't change?---Yes. Continuation didn't change, yes.

PN293

Yes, and so the document that you signed which was Joshi 8 - - -?---Yes.

**** PRASHANT JOSHI XX MR BAKEWELL
PN294

- - - it's just still continuing on at this point, isn't it?---That is right.

PN295

Is it correct that the position of clubs and events officer, which I understand is the position that you're seeking a remedy for under this application, arose because of someone resigning their employment?---Yes.

PN296

Not as a result of a restructure?---No. It's to do with the restructure indirectly due to the significant drop in salary but - - -

PN297

But it arose because someone resigned their employment?---Due to the fact that the - it's 20,000 less pay from the previous position. So, yes.

PN298

At paragraph 35 of your statement you say that at that meeting you requested that you be considered for a transfer for the soon to be vacant clubs and events officer position; is that correct?---That is correct.

PN299

You put that at that meeting?---I did.

PN300

Yes, and is it true that subsequent to that meeting, that you and your representatives have repeated that request?---Yes.

PN301

For UniLife to consider - - -?---That is correct.

PN302

- - - your employment in that role?---That is correct.

PN303

Do you agree that you've been able to put forward the reasons why you think that should happen, at those meetings?---Well it's a significant part of my previous job. Yes.

PN304

And is it true that in response to that UniLife said, amongst other proposals that you might have put, have said, "We'll go away and think about it and we'll come back to you"?---I don't recall that happening. I - - -

**** PRASHANT JOSHI XX MR BAKEWELL
PN305

Or, "We'll consider your proposals", no?---Are you referring to the point where Daniel got back to us a few days later with that email?

PN306

Yes?---Yes, that - in that aspect yes.

PN307

Yes, so you and your representatives have put the proposition to Daniel and he has since responded to that?---That's right.

PN308

Just one moment, if you might, Commissioner? I have to briefly look at these documents that have been tabled this morning. I think they are J - - -

PN309

THE COMMISSIONER: Eleven and 12.

PN310

MR BAKEWELL: Yes.

PN311

THE COMMISSIONER: Sorry, 10 and 11.

PN312

MR BAKEWELL: Yes, and was the first one J10?

PN313

MS HARRINGTON: Ten.

PN314

MR BAKEWELL: Yes.

PN315

Do you have J10 in front of you, Prashant?---Could you please repeat the title? Is it - - -

PN316

Yes, it's - - -?---- - - regarding the - - -

PN317

- - - to you from Arun dated 22 February?---Yes, I've got that.

**** PRASHANT JOSHI XX MR BAKEWELL
PN318

And in fact I think you have put that document, and indeed pretty much the subsequent documents that Cathy put to you, as evidence of the fact that you were performing some other duties apart from your advocate role?---That is correct.

PN319

Is that correct?---Yes.

PN320

To suggest that there were other things you were doing apart from the advocate role?---Yes.

PN321

Yes?---But advocacy being my main position obviously.

PN322

Yes, okay, and so far as advocacy was your main position can you elaborate on that; what do you mean by it was your main position in that period?---Well I - Commissioner, what I meant by that is I performed all my duties as an advocate however during times where requests like this were put into my plate, I have done this during the times that I was pretty quiet in terms of dealing with my advocacy position.

PN323

Okay, but your main role at all times was the advocate role?---That is correct. But this was all ad hoc basis. So there were times where it takes up, you know, out of hours work, the times where it's weekend work on this.

PN324

Yes, I have no further questions for the witness.

PN325

THE COMMISSIONER: Thanks Mr Bakewell.

PN326

Can I take you to your statement?---Yes, sure.

PN327

On the second page, paragraph 9, you state you were told - and I want you to think very carefully. You've asserted this is the advice you were given by the representative, Mr Thomas, and it says the word "transfer"?---From the previous role as a campus manager to - - -

**** PRASHANT JOSHI XX MR BAKEWELL
PN328

Do you think you had applied for a transfer in your proposal?---I've applied to consider for the position as a - yes, as a position to fill, as I know that the - my previous role is no longer existing. So in that manner it's a transfer.

PN329

So in your proposal were you seeking to shift or just assume another role?---I was seeking to fill another role till basically things were a bit more clear in July, when the restructure is finished.

PN330

And you're saying Mr Thomas verbally told you that your transfer had been approved?---That's right.

PN331

So you commenced that role shortly thereafter, didn't you?---I had taken parts of the role but officially after the 29th of January.

PN332

So between January when Ms Marika De Graaf left on unpaid leave did you work with her?---I did. We worked together. There were three advocates at that stage for the one month period.

PN333

So were you more or less training or were you being mentored, or were you actually just observing, or were you working?---Observing, yes.

PN334

Observing?---Yes. I did not handle any case as such but I have observed how they handle the cases.

PN335

So did you handle her supposed caseload after 1 March?---There would probably be a few but this position - the nature of this position is that the cases, once it's done it's pretty much closed and we don't get that reputation[sic] unless a student has the same issue or worse issue. I have not picked up many of her students since January - since that period but if I have it's to do with another matter, not her case from her time because a lot of them were closed as she finished.

**** PRASHANT JOSHI XX MR BAKEWELL
PN336

Now your Joshi 1, your letter of offer, talks about - it was dated 8 December and backdated to 1 October. So did you have some casual work with the university before that?---The sequence of why this letter's in December is that the UniLife in 2010 has adopted a new pay structure where they follow the pay system based on what the uni pays to their staff member. Previously we were under the General Staff Award, I believe, but in 2010 I believe there was a High Court ruling that all student associations fall under the enterprise agreements of the uni. And in that manner basically we were in the process of getting our budget approved with the new pay structure and the board passed the motion in my - I believe, to state that "We will back pay staff members as of the 1st of October" in December "once the budget has been approved". But it was due to the fact that the board have approved the position but it is due to funding they couldn't pay us that new level. So we were getting our normal salary in October, November of that year and in December we were back-paid for the contribution from October onwards. Just because the funding was - didn't arrive in my bank till then.

PN337

Thank you?---But the role started in the 1st of October.

PN338

Can I take you to Joshi 7?---Yes.

PN339

Now you've mentioned a few times when answering questions that you were not aware that the employer considered your contract to be fixed term after you had signed the document in July. This is the offer of the options from the employer in July?---Yes.

PN340

So what did you accept? What do you think this option 1 offer entailed?---Okay. To start with, Commissioner, it is to "continue perform your full-time advocacy role". In my opinion that was a transfer that was done by the board in January and before that I was a full-time employee. So in my mind when I signed this contract there was no indication, no doubt whatsoever, that I have moved into these six options because none of them were formalised to me. Never been formalised. I have never seen a motion. It's not even on the website, or I can't have access although I work for the company. Basically it states - - -

**** PRASHANT JOSHI XX MR BAKEWELL
PN341

Well it's in evidence that - - -?---So it was not transferred to me, sir.

PN342

It's in evidence that you were advised by Mr Thomas that you had been - - -?
---The role has been transferred.

PN343

Well, that's unchallenged at this time?---Yes.

PN344

But he told you that your transfer had been approved?---That is right, sir. But - - -

PN345

So then you get this document some months later?---As a continuing position and there's a dateline because obviously Marika is coming back, and in that stage I thought it would be a fill on position until UniLife basically has a structure, tree of plan which they have been trying for so hard to get into, and I'll be able to apply for positions within that or if not, move to one of the positions. It was never clear to me that it would be date end and I will - I'm done, because it states that I would - "If you can't secure any position, an ongoing employment beyond February, you'll be terminated and redundancy will be applied". So in my opinion it was basically deferring my payout, my redundancy, from July to later date, and if I find anything in between I continue with that position or apply for the position, as I would.

PN346

So you accept then that you had an end date apparently to your employment?
---Yes as that - as a fill in, yes, but not as my ongoing employment, because it was never once where I have given that up. I have not declared that I, "Okay, I will accept this and forget" - "I will not have the ongoing position". I only accepted this because it gives me the opportunity to look for other vacancies within UniLife, and I get a redundancy. That is the clear option, unlike the other two where I have nothing else to gain and, you know, potentially lose all income.

PN347

Thank you for that. Just bear with me?---Thank you.

**** PRASHANT JOSHI XX MR BAKEWELL
PN348

Ms Harrington I'm doing this before you cross-examine or re-examine because something may arise that you may wish to go to, and the same for Mr Bakewell.

PN349

So your evidence is you never were provided with the document, the restructuring document, by your employer?---On the day.

PN350

On the day you had your discussion and were advised?---That's right. It was emailed to me in my private email on Friday morning, which is the day after I got redundancy.

PN351

But you understood that you were advised that you were intended to be made redundant?---That is right.

PN352

Are you aware of others who were intended to be made redundant?---Not till the second restructure.

PN353

And what were you aware of then? The second restructure is the one later on in the year not - - -?---Yes.

PN354

Let's deal with the one restructure?---Yes.

PN355

This proposed restructure?---I was the only one who - - -

PN356

You were the only one being made redundant?---Yes, that's right.

PN357

So were you surprised by that?---Very surprised because it's not to a position that I did for the year. It's to do with the campus management position which I know it's gone, and the letter of redundancy is to do with - - -

PN358

So did you raise that issue, that you were the only being made redundant?---To the?

**** PRASHANT JOSHI XX MR BAKEWELL
PN359

To your employer?---Yes, I'm sure they are aware of that. Yes.

PN360

Well that's not my question. My question is did you when you were aware that you were the only one who was being made redundant - - -?---Yes.

PN361

- - - from a restructuring raise that issue with your employer?---No I did not.

PN362

You didn't?---Because I obviously - I have rejected and obviously put another proposal in to backfill Marika till she gets back. So, yes, that was where my understanding was. Commissioner, can I add?

PN363

You're going to ask me a question, are you?---Can I ask you a question? The letter that I received in the - as my letter of offer I was given a job description and in that job description it shows that it's a continuing position. So that again re-emphasised that the fixed term was never raised as an issue, or as a - the intention, because the supporting document with my - the description of my job shows that it is continuing, and that's where it never occurred in my mind that it's a temporary position with a dateline on any further. It just emphasised that it's a continuing until Marika comes back and then there will be something else, if not you get a payout.

PN364

Thank you.

PN365

Ms Harrington?

<RE-EXAMINATION BY MS HARRINGTON [11.06AM]

PN366

MS HARRINGTON: I just think it would be beneficial probably for all of us if you could just clarify what essentially became a bit of a moveable feast, I suspect, about the number of advocate positions. When we talk about the three advocate positions in January, how did that progress over time? What was your understanding when you initially - when Keith spoke to you?---Okay.

**** PRASHANT JOSHI RXN MS HARRINGTON
PN367

If you could just take us through that?---Yes. Prior to my leave in December the general manager had a one on one conversation with me stating that "The nature of the new structure doesn't have your position in the new structure. Basically the advocacy is where the uni is funding further and, you know, there will be a point where there will be three advocates appointed to this position. We are not sure of the percentage, like, you know, point 6 or point 8 or full-time but there will be three advocates working in the new structure" before he was obviously removed from the office. And therefore in December Marika applied for her one year leave effective for February, which obviously is not written in this document because it's not relevant. But Marika's leave was approved in late December for the New Year and basically when I came back from my leave the funding model was a bit more structured, where the general manager mentioned that "It is going to be either a point 8 or point 6 if - and obviously when Marika goes off it's going to be 1.0". So that's where it became a backfilling for Marika because it changed from the time I applied - from the time that I was aware of the three advocacy - three advocates. It became one full-time, one at point 8 and one at point 6, I believe, and then it - and then now it's changed to point 6, point 8, point 8 and 1.0. So it has changed a lot over the last few months, and therefore when I wrote the proposal it was to backfill, but my initial intention was to be the third person in that position and that's why my title as describe was the marketing aspect of the advocacy, not an advocate.

PN368

Thank you, and just clarifying again on that issue of what information you were provided by UniLife when you got your notification of redundancy, when you say - did you ever actually receive the full document from UniLife concerning the restructuring?---Not till - - -

PN369

From management?---No, not until Juliet from NTEU shared the document with me on Monday when I saw her.

**** PRASHANT JOSHI RXN MS HARRINGTON
PN370

So that came from the NTEU but not from UniLife?---Not from UniLife, no.

PN371

But you have read that document?---I did on the Monday.

PN372

And perhaps then I could just take you to what is actually in the final document, which is in the Jen Coulls's set of documentation, which is Jen Coulls's number 19. Juliet has the - - -

PN373

MS J FULLER: Sorry.

PN374

THE WITNESS: Thank you.

PN375

MS HARRINGTON: Perhaps if - it's right near the back of the set of documents. It's actually the penultimate page which is the final managing change plan relating to the July restructuring?---Yes.

PN376

And actually dated 12 August 2013, and if we could go down to the bottom section which is highlighted, "Implementation and review process"?---I'm sorry, I'm actually a bit lost.

PN377

So if you go right to the end of the documents and just go three pages in?---Okay.

PN378

That's probably the simplest way of doing it?---Okay. Yes.

PN379

And you'll see a section headed Implementation and Review Process?---Okay. Thank you.

PN380

So just in relation to - I mean, you have seen this document ultimately because you were on staff. What was your understanding about that implementation process occurring there?---In my opinion that was the other elements of UniLife's restructuring, like the counters, the position where the events person also held the counter position, and that finalisation on when it starts, the operational hours and implementing how they're going to balance the workload.

**** PRASHANT JOSHI RXN MS HARRINGTON
PN381

Right, and also the comment there, "Final placement of the staff is expected to occur by the commencement of study period 1, 2014" which I understand is February 2014?---That is right, and till that date we are getting our higher holiday calculation, I think. Yes.

PN382

So did you in fact see the - that restructuring proposal was still actually ongoing up until that point in time?---Yes, I do agree with that. Yes.

PN383

Yes?---And it had a couple of changes since then as well, since August till now.

PN384

Right, I have no further questions.

PN385

THE COMMISSIONER: Thank you.

PN386

MR BAKEWELL: Commissioner, just - no, sorry, I don't need to re-examine on that point.

PN387

THE COMMISSIONER: Ms Harrington, we've got a side list of Joshi's statement and the attachments so I will - we've nominated Joshi 10 and Joshi 11.

PN388

MS HARRINGTON: Yes.

PN389

THE COMMISSIONER: They will form part of exhibit A1.

EXHIBIT #A1 COMPRISING JOSHI 10 AND JOSHI 11, PREVIOUSLY MARKED

PN390

MS HARRINGTON: Thank you.

PN391

Thank you Mr Joshi?---Thank you.

**** PRASHANT JOSHI RXN MS HARRINGTON
PN392

THE COMMISSIONER: Yes, you're excused.

<THE WITNESS WITHDREW [11.13AM]

PN393

MS HARRINGTON: I'd now like to call Miss Fuller.

PN394

THE COMMISSIONER: Thank you.

<JULIET FULLER, AFFIRMED [11.14AM]
<EXAMINATION-IN-CHIEF BY MS HARRINGTON [11.14AM]

PN395

MS HARRINGTON: Thank you Miss Fuller. Now can I just ask if you wish to make any amendment to your witness statement?---Yes I do. At paragraph 35 I had stated that the student president, Arun Thomas, was at a meeting and subsequently I have referred to my notes and discovered that he was actually not at that meeting.

PN396

Thank you?---So I'd just like to change him as one of the attendees.

PN397

Thank you. Perhaps then also you could advise the Commission about how you actually go about your role as branch organiser, in particular when you're accompanying members?---Whenever I go to a meeting with a member I always have my notepad on my lap and I take contemporaneous notes of the meeting, and then where relevant I write up those notes in more detail when I get back to the office, if there - if I feel there's going to be a need to inform an industrial officer or other staff members with the NTEU.

PN398

Thank you, and in relation to the matters pertaining to Mr Joshi, was that a similar exercise you followed?---Absolutely.

PN399

If I could now take you then to the witness statements of the UniLife staff, and in particular if we start with Miss Coulls's statement and if you could perhaps start in relation to the matters pertaining to clauses - paragraphs 28 to 31 of her statement where she's giving a description of the meeting that occurred with Mr Joshi on 4 July. Could you provide comment on Miss Coulls's statement please?---Yes. The - at the beginning of the meeting Jen did give her understanding - she did give a summary of what her understanding of - seemed to be of what Prashant's concerns were. And it came as a surprise to me and my impression was it did as well to Prashant, because we had had a conversation prior to - Prashant and I had had a conversation prior to that meeting where we had discussed his meeting with Jen on the 4th; and that he had raised concerns about wanting to formalise his role and know exactly what his role in the current structure in - was in light of the fact that there had been some confusing issues and that - he had told me that he had this conversation with Jen. And my impression from his relating of that conversation was that it was about his increasing distress at being pulled in a number of different directions and wanting some kind of formal, "Let's sit down and determine exactly what my role is so that we can just get on with it". And her impression at that stage seemed to be that he had said, "Oh, I'm not happy with what I'm doing" and, you know, "and looking" - "and I don't see a future" which was certainly not the impression I had got from my conversation with Prashant about the same event. So we were very surprised by that. I do agree that he reacted as if it was a bolt from the blue, because it was not what we were expecting from that meeting at all.

**** JULIET FULLER XN MS HARRINGTON
PN400

Thank you, and there's no other comment there that you wish to make on those statements? No? That's fine. Perhaps then if we could go to paragraph 38 and in relation to the - your understanding of the options that were being put to Prashant, paragraphs 38 and 39?---Yes. Prashant had advised on the Monday after the initial meeting, on Monday the 8th I think it was, that he did not accept that he was redundant, that there was no room for him and that he wanted to continue doing what he was doing as he had been acting as an advocate for the year anyway. That he had been seeking formalisation of that, not - and wanted to continue doing that if there were no other options for the campus management roles. And so when he got that notice we reviewed it together after he had sent it, and my impression was that the first option essentially said, "Continue doing what you're doing. At the end of the" - "At the date of" - I can't remember the exact date, sorry, "At the end of February if we haven't found any other roles for you at that point you will be" - "your position will be declared redundant and a redundancy payment will apply at that stage". The other options that he was given were two - one of two fixed term appointments on a fractional basis, that did not have redundancy payments apply - applicable at the end, so were effectively a change in employment status. And in looking at it, it was clear in discussions with Prashant that he wanted to give himself the opportunity to explore other opportunities within the organisation, and therefore option 1 was the only relevant option for that reason, as it deferred his effective date of redundancy until February; if nothing came up in between now and then the redundancy would still apply.

PN401

Thank you. If we could go now to the witness statement of Mr Randell.

PN402

THE COMMISSIONER: Pardon me, before we leave this witness statement.

PN403

MS HARRINGTON: Yes.

**** JULIET FULLER XN MS HARRINGTON
PN404

THE COMMISSIONER: I'd like you to be quite emphatic about your comments in respect to this meeting. At paragraph 39 in Miss Coulls's statement she makes a specific reference to what option 1 was to include. Are you saying distinctly that that is not your recollection of what was put to Mr Prashant?---It was never discussed at the meeting. It was only what was put in writing. So the document - do we know what those - sorry, I'm not sure of the - - -

PN405

Well at paragraph 39 - - -?---It's talking about the options that were put in the letter of July - of 11 July?

PN406

MS HARRINGTON: Yes, I think Miss Coulls has given, shall we say, her interpretation of what those options were.

PN407

THE COMMISSIONER: Okay, thank you.

PN408

MS HARRINGTON: Using a specific - - -?---Yes. Yes.

PN409

- - - term - - -?---So I disagree with her interpretation of what those options were because it doesn't accurately reflect what the words in the document that we reviewed says.

PN410

THE COMMISSIONER: Because it's not a fixed term in the document?---That's right.

PN411

Thank you.

PN412

MS HARRINGTON: And was that term ever used in discussion at the meeting?
---Certainly not. No.

PN413

Thank you?---Sorry, we were going to?

**** JULIET FULLER XN MS HARRINGTON
PN414

Yes, so if we could now go to Mr Randell's statement and the first paragraph - the first issue really is from paragraph 25 onwards which concerns the meeting of 26 September at which Arun Thomas and Mr Randell met with yourself and Prashant. So perhaps if you could comment on some of the statements there in relation to your interpretation of what actually occurred at that meeting?---Yes. The - effectively the meeting was to explain verbally what the intentions - with a further restructure that UniLife was about to take. It - and Prashant was advised that there were no changes to his current position and employment at the time, and there was a discussion about the fact that the roles of advocate - in the previous managing change paper two additional advocate roles on fixed term contracts had been identified at a fractional point 6 and point 8, I think they were. And Daniel stated at that meeting that the - in the new structure there was going to be a single role, not two, and that he had made a decision not to fill that in accordance with the previous structure until the beginning of - until February, the beginning of the study period in 2014. And at that time my recollection is that he stated that discussions would take place with Marika who Prashant was currently backfilling, prior to that stage, and that if Marika didn't - if Marika did choose to return, that the other advocate role would be available as an option for Prashant. At which point I said, "So why don't you just offer it to him now?" and Daniel's response was, "I'm not sure. I'll need to go away and consult on that". We also discussed that the role of the events officer was now vacant due to a resignation and that it was going to remain in the new structure at level 5. We asked if it was going to be identified as a redeployment opportunity for Prashant and the answer was no, but that he was welcome to apply.

PN415

So if I could take you particularly to paragraph 32 of Mr Randell's statement, do you agree or not agree with that statement?---I disagree. I definitely asked if it was going to be identified as a redeployment opportunity.

PN416

And in relation to clause 34?---I don't know that Prashant confirmed that he understood he was not being offered the role, but it - there was an acknowledgement that he - we'd been told no. "An option to move him on to the vacant positions".

**** JULIET FULLER XN MS HARRINGTON
PN417

Yes?---I definitely raised if the advocates - if the advocacy position wasn't going to be filled and was going to be continuing, that why not offer that now, because it would have elongated the date of Prashant's employment.

PN418

And in particular, paragraph 36; what is your view of that?---Arun did say, "We can't offer it to him" but he never said, "Because he's on a fixed term contract" and my response when Arun said, "Because we can't" was "Of course you can. I don't see why not". And the - no further discussion, to my recollection, went into that but I am certain he did not say that he was on a - that he couldn't because Prashant was on a fixed term contract.

PN419

Right, and of course you're saying, "Of course you can" for the reason that?
---Well there was no reason why it couldn't be - why a role that - given that Prashant was pending redundancy and there was going to be a role that extended beyond his redundancy that he was qualified for, I couldn't see any reason why it couldn't be offered to him on a longer basis.

PN420

Thank you. In relation to paragraph 39 - now perhaps you do need to refresh your memory in relation to paragraph 51 of your statement. I can read it to you if that would be of assistance?---It would be. Thank you.

PN421

"Mr Randell also stated that they would not be filling the vacant fixed term advocacy contract before February and that if the incumbent returned from leave in February of 2014 the vacant advocate position would be available to Mr Joshi at that time should he be interested in it, which would extend his employment to August 2014". So going back to paragraph 39 of Mr Randell's statement what do you say to that?---That I'm sure that that's what was said and I'm sure I took notes to that effect. The reason I note that Daniel's not sure what I mean by August 2014, that date was because the written managing change document that had existed previously had the fixed term contract dates ending at that - in August 2014 because that was the date more or less that the new budget is negotiated. And at this stage - and it actually became a point of contention in dispute with the NTEU and UniLife - this September change process didn't have any formal documentation with it. So there was no change consultation paper that was written and prepared. There were just individual meetings with staff at that stage. So there was no documentation that indicated a date different to the August 2014, which is where I got that date from.

**** JULIET FULLER XN MS HARRINGTON
PN422

Thank you, and finally if I could take you to clause 45 of Mr Randell's statement, what do you say to the description there?---Sorry, I just need to check where are we talking - are we still talking about that meeting or - - -

PN423

We are, yes. Yes we are?---No, this was after the 15th of October.

PN424

This is still the 26th - yes, sorry, meeting?---Yes.

PN425

Yes, the meeting of 15 October?---On the 15th of October Daniel did say that it was his understanding that Prashant was on a fixed term contract and could apply for the clubs and events officer. And we had to disagree at that stage because prior to the email of the 4th of October there had certainly been no discussions to indicate that Prashant was on a fixed term contract. Our understanding along with Prashant's was that he had deferred his effective date of redundancy to the end of February in line with the statement in the option 1, which said "If no other opportunities become available" - I'm paraphrasing - "prior to that stage, your employment may end due to a redundancy".

PN426

Thank you, I have no further questions.

PN427

THE COMMISSIONER: Thank you.

<CROSS-EXAMINATION BY MR BAKEWELL [11.29AM]

PN428

MR BAKEWELL: Thank you Commissioner.

PN429

Thanks Juliet. I take it you were involved representing Prashant and other staff in the events surrounding the July restructure?---Yes.

PN430

Would I be correct in saying that at all stages of that process UniLife extended to yourself and Prashant the opportunity to put your view, to put your position?---I wouldn't say at all stages. There was difficulty with - in - after Prashant's meeting in the fact that he was only given two days to formally respond to the paper, without receiving documentation. So there was a dispute that was notified at that stage, pertaining to the fact that there hadn't been appropriate consultation and response time.

**** JULIET FULLER XX MR BAKEWELL
PN431

Yes?---But other than that the NTEU was invited to attend meetings and we participated in the consultation process and responses.

PN432

Would I be right in saying though subsequent to you raising that dispute, that issue, consultation was extended?---Yes.

PN433

Do you feel that you had at the end of the day an adequate opportunity to advance your position on behalf of Prashant?---Yes.

PN434

The options that were put to Prashant, which we have spoken of, and particularly the one that he ended up accepting, which we've referred to as option 1 and has been referred to in the offer letter, would you agree that when you reviewed - I presume - sorry, I'll come back a step. Can I ask whether you reviewed those documents with Prashant before he responded to them?---Yes.

PN435

If I - - -?---Sorry, can I just correct? Before he responded to the July 11, which was the document outlining the options - - -

PN436

Yes?---- - - I definitely reviewed that with him. The second document, which was the contract letter, I personally did not have a conversation with him about that but I do know that he contacted the NTEU office about that.

PN437

If I could - I might have to show this document to you. Just one moment. I'm just wondering if the witness can be shown JC7? I've got my copy here and I'm happy to hand that up?---That's all right, I would have it here. Sorry, JC which?

PN438

Seven?---The 11 July letter?

PN439

Am I right in saying that was a document from your evidence that you did review with Prashant?---Yes.

**** JULIET FULLER XX MR BAKEWELL
PN440

Under option 1, the notion that it talks about he would continue to preform the role until 28 February and it goes on to state, "We will confirm in writing at least four weeks prior to the 28th of February regarding your ongoing employment and whether we intend to offer you a further contract". Did you understand by that, that UniLife are putting a proposition here that the offer of another contract is at their instigation within that four week period?---No.

PN441

What do you understand that paragraph to mean then?---My understanding was that the - it was an early indication that Prashant's effective date of redundancy would now be the 28th of February unless ongoing employment was found prior to that point.

PN442

So the words, "whether we intend to offer you a further contract", you understand that to include UniLife intending to offer Prashant a further contract?---Yes I do.

PN443

The next sentence reads, "Any option to continue your employment will be subject to discussions held with Marika De Graaf regarding her return to work". Do you understand that that is being put in the context of whether Marika would return to perform the position or not?---I do understand that that refers to a conversation that would need to be had with Marika prior to her returning to work.

PN444

Yes?---Yes.

PN445

And therefore in the context of that first paragraph the offer of continuing employment beyond 28 February 2014 is subject to the discussions that have been held with Marika, which is about whether she's coming back to work or not?
---The offer of continuing employment in the advocate role was subject to Marika determining whether she was going to return to work.

**** JULIET FULLER XX MR BAKEWELL
PN446

Can you point out to me please in that first paragraph where it refers to the role rather than employment?---Where it says, "Permanent full-time advocate role until 28th of February 2014".

PN447

And what about the issue of ongoing beyond 28 February; where does that refer to the role?---In that sentence it doesn't.

PN448

Does it refer to employment?---Yes.

PN449

Do you understand employment to be something different to a role?---Yes.

PN450

Is it commonplace in the industry or sector in which you work that a letter of offer or a contract of employment might be put to somebody premised on an end date where employment will not progress beyond that date, where the purpose of employment is to replace somebody who is away?---Yes.

PN451

Can you give me an example in your industry where that happens?---It happens routinely with secondments. People who have continuing roles might be given a secondment to backfill or replace another person and at the end of that period return to their substantive role. It happens in managing change places where during a nominal redeployment period people might take contract work, and during the period of that redeployment period work a fixed term contract in a particular role and still have access to substantive roles after that. It happens where people are employed on a fixed term contract for - in a number of categories that fall in line with what the limitations on fixed term contracts are.

PN452

Sure, and so as, I guess, an organiser, a person who is skilled in this area, you would understand that having an end date on a contract, it would not be something that would surprise you in this sector, would it?---No.

**** JULIET FULLER XX MR BAKEWELL
PN453

And in the context of it being for the purpose of replacing another person who is away, that would equally be nothing that would surprise you?---No.

PN454

Is it your understanding that Marika De Graaf is indeed absent from UniLife?
---Yes. Yes.

PN455

And is it further your understanding that she is due or expected back possibly in February of 2014?---Yes.

PN456

In your experience of looking at offers or contracts of employment for your members, if I could talk about offers of ongoing employment as opposed to contracts that have a fixed date or an end date. Do you regularly see offers of ongoing employment with end dates of employment in them?---That's a difficult question to answer because, as I said before, fixed term contracts come up in the context of other forms of employment as well. So while my more broad experience is with the university, it is not uncommon for somebody who has a continuing position to be seconded to a fixed term position. They would have a separate contract for that position that has an end date and at the end of that, subsequent to other documentation that goes along with that, they would return to their substantive position.

PN457

I understand?---So I don't see that just because there is an end date on a contract that it means that it is a fixed term contract.

PN458

Let's remove the issue of a secondment. Let's assume it's not a secondment. Would you expect to see an offer of ongoing employment have an end date on it?
---I wouldn't expect to see an offer of ongoing employment have an end date on it unless it were pertaining to a managing change process, where that end date was the date of - was a new nominated date of redundancy, which is a common practice in - certainly at UniSA. The - it's standard practice when managing change processes occur that for a period up to two years staff can be on fixed term contracts within that period of time but still have the opportunity to be further redeployed beyond that.

**** JULIET FULLER XX MR BAKEWELL
PN459

If I could take you to the events of September - sorry, let's go back a step. The offer of employment that was given to Prashant, and the letter that he signed that we've just talked about under option 1, would you agree that that occurred as a result of the restructuring events in July?---Yes.

PN460

And in fact it occurred at your instigation, or at least Prashant's instigation, didn't it?---Yes.

PN461

Would you agree that that measure or that event might be, in your experience, portrayed as a measure of mitigation?---I guess in terms of extending the effective date of redundancy it mitigated the immediate - - -

PN462

Effects of a potential redundancy?---Yes. Yes, an effective redundancy that was likely to occur. It was imminent.

PN463

Yes?---It - the deferral of that was mitigating.

PN464

Yes?---Yes.

PN465

So I'm going to summarise that event for you and you tell me if I'm wrong. There was an event, there was a change event, let's call it that. That change was going to affect Prashant's employment, his employment security. The employer had in fact foreshadowed a redundancy, that the union on Prashant's response - behalf, I'm sorry, responded and said, "We have another option here; an option to perform a particular role until the end of February". Is that a correct portrayal in summary of what has happened?---Not entirely. It's a chain of events but the issue was broader than just "A redundancy is being foreshadowed and we've got an alternative" because the issue was also about the fact that Prashant had been acting in a role that had not been formally recognised or formally detailed or formally explained throughout the beginning of the year. So there also conversation and confusion about whether or not he was continuing to do what he was already doing, which was certainly Prashant's sense, as opposed to "Something's about to end here" that in fact didn't exist anyway, "and we need to find further options". So I don't think your summary is entirely accurate.

**** JULIET FULLER XX MR BAKEWELL
PN466

The effect of your response and your intervention on Prashant's behalf certainly stopped a redundancy from occurring?---Yes.

PN467

And the effect of your intervention resulted in that new offer of employment, which I think we've referred to as Joshi 8; would you agree with that?---Yes.

PN468

If I can now take you to your involvement in the discussions that have occurred in - let's call it September, and I think they were discussions that had occurred subsequent to Jennifer's involvement, and involved Daniel who is here with me at the bar table today; would you agree with that proposition?---Yes.

PN469

Would you agree with the proposition that the restructuring or the issues that were foreshadowed with staff and with the union in September were new initiatives by Daniel that - - -?---Not entirely.

PN470

Okay, which ones were not new?---Well the - in an earlier meeting that we had had with Daniel we had indicated that - we had a frank conversation about some of the concerns that the NTEU had had about the former change management process. And there were issues that while the final version of the consultation paper, the final paper had come out, still remained relatively unresolved and they were to be put into the hands of the new general manager. So we had a conversation about problems that staff we were representing still saw as an issue with the new structure and the - one of the main items identified by Daniel in September when he was talking about making changes was in reflect - was in referral to specifically the fact that there were two staff members whose jobs were co-located staffing a counter as well as doing their other jobs.

PN471

Sure?---So Daniel had recognised that that was an impossible situation, which we were very grateful for, because he's right. And so the - some of the changes in September that Daniel spoke about were actually pertaining to issues that had been identified in the earlier process. So I don't think it was an entirely separate process. It was another change process and there were certainly new things put forward and new changes made.

**** JULIET FULLER XX MR BAKEWELL
PN472

So in respect to that, let's characterise it this way. At least it's a new change process and it potentially has new effects for everybody to consider. Is that a fair summary?---I'd call it an additional change process because - - -

PN473

An additional change process, okay. Would you concur with a proposition that in the changes that were discussed, foreshadowed by Daniel in September, that those changes did not affect Prashant?---They did affect Prashant. They didn't affect the advocate position that he was sitting in.

PN474

To what extent was Prashant's arrangement as an advocate disturbed by the proper restructuring process in September?---Well his reporting structure changed and the - because our impression and our understanding had been that should further opportunities become available prior to his date of redundancy in February they would be explored. And there - we were informed that that wasn't going to be an option.

PN475

Apart from a foreshadowed change in his reporting lines did UniLife advise you of any aspect of Prashant's employment that were subject to change in September?---No. No they didn't.

PN476

No change to salary?---No.

PN477

No change to tenure?---It wasn't discussed.

PN478

No change to conditions of employment?---No.

PN479

In fact I think the words used were largely, I think, that there really is - I think in the meetings that you had to really put Prashant's mind to rest, that this restructure didn't affect him. Would that be fair?---I don't know that I used those words but I wouldn't disagree that that was the sentiment.

**** JULIET FULLER XX MR BAKEWELL
PN480

So the restructure that did occur - or let's call it whatever you want to call it, the new change, added change - in September, which were the jobs that were materially affected in September, can you recall?---For the most part the counter staffing roles were affected. There was one redundancy made to a continuing employee and there was a pseudo promotion, I guess, for another employee in terms of taking on extra responsibilities with counter staff.

PN481

Okay, the - no, I'll withhold that question. I have no further questions, Commissioner.

PN482

THE COMMISSIONER: Thank you.

PN483

So Miss Fuller when do you recall you were aware that UniLife intended to have three advocates in 2014?---In - initially in discussions that I had with Prashant when he first came to see me at the beginning of the year. It was after he had put his proposal to the UniLife board and he came because he was concerned that the general manager, who he had had all of his prior conversations with, had been terminated and that he had put this proposal to the board because conversations he had had with the previous general manager indicated that they were going to be expanding the advocacy from two - the current two positions to three or up to three full-time equivalent I think. That was the - I hadn't heard it formally from UniLife beyond that conversation with Prashant - sorry, which isn't formally from UniLife at all, but.

PN484

Well would you agree it's not a feature of the first restructuring document?---Well the first restructuring document did support an increase in advocacy but they had determined due to - the university provides them with funding on an annual basis, so they had determined that they would increase the advocacy profile on a fixed term basis at fractional appointments, because they weren't sure that they would have further funding beyond the end of that pay period, the end of that - sorry, financial cycle.

**** JULIET FULLER XX MR BAKEWELL
PN485

And that position changed, to your knowledge?---Sorry?

PN486

Did that option change for them? That was their view in the first restructuring document?---I'm not entirely sure but I know that Daniel made a decision to - that rather than have two fractional to have one, I think full-time, position. So there was still an increase in the advocacy profile and still the increase was on a fixed term basis, as opposed to the continuing roles that previously existed. But the number - - -

PN487

Yes, but there was - - -?---- - - of staff that they proposed to hire changed.

PN488

My understanding from a superficial read of all these documents is that UniLife intends to have three advocates in 2014?---Yes.

PN489

And none of them are fractional?---Now, yes. Previously there had been an indication that they would be fractional.

PN490

Do you know when that was fixed in terms of UniLife's proposals; when they fixed that it would be three and they would be full-time?---My understanding is that the decision was made by Daniel in September and to be implemented next year, but I'm not exactly - - -

PN491

So was that advised to you in your meetings in September?---Yes, because at that stage - the date of the contract wasn't advised but Daniel did indicate that he didn't intend to fill the previously flagged two fractional roles because it was too late in the year effectively for it to be sensible, and that he would be looking to fill an advocate position in the New Year And at that point, to my recollection, he said that they'd be doing it in February and at that point they would have an understanding about whether Marika was returning and that that could be an option available to Prashant at that time. J

**** JULIET FULLER XX MR BAKEWELL
PN492

Okay, and that's your paragraph 53 comment in respect to that?---That would - it sounds about right. I can find everybody's statement except my own. Yes.

PN493

Thank you.

<RE-EXAMINATION BY MS HARRINGTON [11.54AM]

PN494

MS HARRINGTON: I've just got two questions, and the first does take us back to J - if you could use perhaps JC7, which is the 11 July letter of offer - re-employment options letter, and going to the backfill and permanent full-time advocate position. Below the first paragraph is the second paragraph. What's your understanding of what's indicated there?---It states that, "If we are unable to secure ongoing employment beyond February your employment may be terminated due to a redundancy, in which case a redundancy payment would apply". So my understanding, and the conversations that we had with Prashant at the time, were that it was a deferral of his effective date of redundancy to the 28th of February. And during that period of time if ongoing employment became available he would not be terminated due to a redundancy, but if it did he would be terminated or may be terminated due to a redundancy, in which case a redundancy payment would apply.

PN495

Okay, and just going to where the university uses fixed term employment to defer or to delay redundancy dates, if I could put it that way. When a person, as they are permitted to do under the redeployment policy, opts to go into a fixed term position do they actually lose their permanent status or continuing status when they do that?---No, they don't.

PN496

In the context of a managing change process?---No, they don't.

PN497

So there is a distinction between they remain continuing but they're temporarily occupying a fixed term - - -?---Effectively it extends their employment for the period of that contract, enables other opportunities that may come up to be explored, and at the end of that period if continuing employment hasn't been found they revert back to being declared redundant and are given a written - a separation package.

**** JULIET FULLER RXN MS HARRINGTON
PN498

Thank you, I have no further questions.

PN499

THE COMMISSIONER: Thank you.

PN500

MR BAKEWELL: Sorry, Commissioner, I seek some clarification in relation to the last point so far as I don't believe the canvassing of that matter is a matter that arises out of my cross-examination. Which is the issue going to a permanent employee having legal rights, as I would understand it, as an ongoing employee with an end date, and certain propositions have been put there as to why that's the case.

PN501

MS HARRINGTON: Well I think, sir, that my friend did ask the question for Miss Fuller to give examples which she did do, and I was just elaborating on one of those particular examples that she gave.

PN502

THE COMMISSIONER: Is that your opinion?---Yes.

PN503

I'm accepting it as an opinion, Mr Bakewell.

PN504

MR BAKEWELL: Thank you Commissioner.

PN505

MS HARRINGTON: Thank you.

PN506

THE COMMISSIONER: Well you can be excused. Thank you.

<THE WITNESS WITHDREW [11.57AM]

PN507

THE COMMISSIONER: Ms Harrington, Miss Fuller's statement will be exhibit A2.

EXHIBIT #A2 WITNESS STATEMENT OF JULIET FULLER WITH AMENDED PARAGRAPH 35

PN508

MS HARRINGTON: Thank you.

PN509

THE COMMISSIONER: Yes?

PN510

MS HARRINGTON: That is the end of the evidence for the applicant, Mr Commissioner.

PN511

THE COMMISSIONER: Now I would intend Mr Bakewell will provide his evidence, we'll break at a convenient time for lunch, and when you've finished your evidence you will sum up and Ms Harrington will have the last word.

PN512

MR BAKEWELL: Yes, Commissioner.

PN513

THE COMMISSIONER: You can start your - - -

PN514

MR BAKEWELL: Commissioner, if I might ask that Daniel be excused before he takes the stand? Mother Nature calls.

PN515

THE COMMISSIONER: We could have a 10 minute break for everybody.

PN516

MR BAKEWELL: Thank you.

PN517

THE COMMISSIONER: This matter is adjourned.

<SHORT ADJOURNMENT [11.58AM]
<RESUMED [12.08PM]

PN518

THE COMMISSIONER: Mr Bakewell.

PN519

MR BAKEWELL: We don’t seem to have - - -

PN520

THE COMMISSIONER: We don’t seem to have any NTEU.

PN521

MR BAKEWELL: It would probably make my job a little easier.

PN522

THE COMMISSIONER: Indeed. Do you have any issue about having a gallery?

PN523

MR BAKEWELL: No, and that’s our first witness.

PN524

THE COMMISSIONER: Thanks for coming. Are you going to call your first witness?

<ARUN THOMAS, SWORN [12.09PM]

PN525

THE ASSOCIATE: Please state your full name?---Arun Thomas.

PN526

And your address?---(address supplied) North Adelaide.

PN527

And your occupation?---I’m a student.

<EXAMINATION-IN-CHIEF BY MR BAKEWELL [12.09PM]

PN528

MR BAKEWELL: Can the witness please be shown this document as the first thing. Arun, you have a document that has just been handed to you. Can you please have a brief look at that and confirm for the commission whether or not that is the evidence that you have provided in relation to this matter, including any attachments that might be included with that statement?---Yes, this is the correct document, Commissioner.

PN529

Thank you. I’d like to please tender into evidence the witness statement of Arun Thomas together with the marked attachments.

PN530

THE COMMISSIONER: Ms Harrington?

PN531

MS HARRINGTON: I have no objection.

EXHIBIT #R1 WITNESS STATEMENT OF ARUN THOMAS

PN532

MR BAKEWELL: I have no questions for the witness supplementary to the evidence we have provided.

<CROSS-EXAMINATION BY MS HARRINGTON [12.11PM]

PN533

MS HARRINGTON: You have your witness statement there, Mr Thomas?
---Yes.

PN534

If I could take you to your paragraph 14 in relation to your conversation with Prashant. Now, there is a difference of opinion about what was actually said at that time. Would you like to reconsider what you’ve said there?---No. This is the statement that I have provided. That’s what I want to - - -

**** ARUN THOMAS XXN MS HARRINGTON
PN535

Could you explain why there was actually no attempt to formalise the decision that was taken by the board?---So, basically, on 29 January 2013 the board made a decision to terminate the general manager, and due to that we hadn’t had a general manager to follow up that letter to Prashant. Because of that we couldn’t able to follow that process.

PN536

I find that a little hard to believe because we’ve actually had an interim general manager who has managed a restructuring in the capacity as interim general manager. Also I understand, Mr Thomas, that you yourself were interim general manager for a period of time. Is that correct?---No, I wasn’t.

PN537

I thought there was the time between the appointment of Ms Coulls - - -?---No. I was in charge of (indistinct) and I wasn’t – I didn’t take any role as the general manager.

PN538

So you didn’t make any decisions between the end of January and beginning of March before Ms Coulls started which affected UniLife. You didn’t have that role?---That’s right, yes.

PN539

Well, when Ms Coulls started why was it that you take up with her the issue about formalising the decision that had been taken by the board on 29 January in relation to Prashant?---I don’t know.

PN540

Now, you were actually requested, I believe, on a couple of occasions to actually undertake that responsibility of formalising. So you can’t actually provide an explanation to the commission why that didn’t occur?---All I can say is that because of the lack of a general manager we couldn’t able to follow up formalising the process.

PN541

If I could now take you to paragraph 15 of your statement?---Yes.

**** ARUN THOMAS XXN MS HARRINGTON
PN542

Perhaps at this point if Mr Thomas could be shown J10?---Yes, this is the - - -

PN543

So you agree that you did send that email?---Yes, I did.

PN544

Could you then explain how that actually – given that in this email you’re actually stating that you’d like to reaffirm your support and approval for the reactivation of the volunteer program, why in your paragraph 15 you did not approve Prashant to start a volunteering program and you told Prashant that UniLife was no longer doing the voluntary program?---That’s right. Even though I have sent this but I don’t agree what you are saying, that I want to keep with the statement number 15, which I did not actually approach Prashant to start a voluntary program but I have actually told Prashant to stop the membership of the program because the university has taken over the voluntary program and it’s not UniLife’s role to play or to continue that program.

PN545

With respect, Mr Thomas, this is exactly the opposite of what you’ve just said then as contained in this email. So I can’t understand how you could actually say you told Prashant to stop when in fact the written evidence is quite the contrary and you’re actually very encouraging and supportive and recommended some actions to reactivate that program. So how can you actually then say you told him to stop?---All I can recall is that I did not approach Prashant to start a voluntary program.

PN546

I think you’re being a bit specific on the question. The question is – because one of the issues here is about the work that Prashant said he was being asked to do by yourself as the student president and also the interim manager, and there appeared to be a view that Prashant was doing this, shall we say, off his own bat. So clearly here is a case where you were actively encouraging and supporting one of those duties from his previous role continuing. So don’t you agree that’s the case that this email does do that?---No, I don’t agree. We did not actually approach Prashant to continue what he has been doing previously because we have told on 29 January to Prashant, myself and the previous president, that it’s no more – “You don’t have to do the previous role that you been doing. Now your role has been approved by the board which is six months backfilling Marika’s role.” So he can start the role as an advocate from 30 January and he has been having continuous training after that under Louise.

**** ARUN THOMAS XXN MS HARRINGTON
PN547

I just have to say any reasonable person reading J10 would assume that in fact the approval and support of the student president in February – Prashant was in fact encouraged and told to reactivate the volunteers program. So we can leave it at that. I’ll now go to paragraph 16 of your statement. You believe that training has been ongoing since Prashant commenced in the role of advocate. Could you explain what that training has actually been?---I recall Prashant was having training after 29 January under Louise, and after 29 January his role as backfilling six months to Marika’s role was under Louise, and Louise was providing ongoing training as he commenced the role on 30 January 2013, which means that I stick with the statement of number 16 stating that I disagree that Prashant has not received any training as an advocate. His training has been ongoing since he commenced his role.

PN548

I think what you’re describing there is what people would perhaps commonly call mentoring where you’re getting on-the-job support and able to watch what people do but, in terms of training, what we would normally mean is a formal course of some sort to actually develop your skills in that area. So has in fact Prashant received any formal external training for his role as advocate other than internal mentoring that you’re aware of?---I don’t know.

PN549

Could we then go to the lead-up to the restructuring proposal, the one of July?
---Yes.

PN550

Perhaps could you explain what your role was in developing that proposal as student president of the organisation?---My role was – the general manager reports back to me. So I go with all the meetings organised by the general manager and - - -

PN551

Sorry, when you say general manager you mean interim general manager?
---Interim general manager. That’s right.

**** ARUN THOMAS XXN MS HARRINGTON
PN552

In those meetings did you contribute to that discussion or provide any suggestions or ideas at all or were you just receiving the information?---I did not get your question.

PN553

Did you actively take a part in putting suggestions about what the new structure should be like or were you just receiving that information and not making any particular comment on the proposals that the interim general manager was working at?---Could you able to make it specific which case you are - - -

PN554

Leading up to the events of the restructuring in July I’m assuming there was preparation and, as we know, there was eventually a discussion paper, proposal, about the restructuring which was issued to staff. As student president did you have a role to play in contributing to that discussion paper?---Yes.

PN555

What was the role that you played?---The board made a decision to do the restructure and that has been delegated to the interim general manager. So my role was overseeing that the process has been followed properly.

PN556

For instance, were you involved in deciding or making recommendation about the number of advocates that would be preferable or desirable in that restructuring proposal of July?---No.

PN557

Now, you attended a meeting on 4 July where Prashant was given his notification of redundancy. Is that correct?---That’s right.

PN558

When Prashant was asked then to stay home for two days to consider his position, what were the structural arrangements about managing in that position while he was away, because obviously he was a working advocate, he was told to stay away for two days. How was UniLife going to cope with that vacancy occurring, even on a temporary basis, or was it so short that it really didn’t matter?---I think that question needs to be asked to the team leader because I’m not in that capacity to answer how it was going to affect the students.

**** ARUN THOMAS XXN MS HARRINGTON
PN559

Well, in fact, I think you are in a position to answer because wasn’t it the case that on 5 July you actually published on Facebook that you were the acting student advocate?---No, that’s not right.

PN560

Well, I have documentation here from Facebook. Might I say for the commission I only received this information very late yesterday. So I really did not have an opportunity to present this prior to this time.

PN561

MR BAKEWELL: I must object. Here we go again. Here we are in the commission with a document that was discovered yesterday. Clearly it was intended for the matter to be raised and clearly again I’ve been denied an opportunity to review the document and consider it and consider its purpose. So I’ll leave it to the commission as to how it will deal with the matter but I must object.

PN562

MS HARRINGTON: I can understand my friend’s objection but, as I said, in the course of discussion yesterday in preparation of the response and questions to ask Mr Thomas it only came up in conversation that – I’ll be blunt. I’m not on Facebook. I’ve got no idea how to get there. So it did require doing a bit of research to get this information off Facebook. So I apologise to my friend and I apologise to the commission but I think this material is relevant to this matter.

PN563

THE COMMISSIONER: I’m going to hear it and allow it, Mr Bakewell. Part of my view on that is in respect to the evidence given by your witness to this point in time. The answers to the questions in respect to the comparison of documents and points of view was left fairly inconsistent and we didn’t pursue that. So I’d like to hear the evidence.

PN564

MS HARRINGTON: So, Mr Thomas, are you saying this is not your - - -?
---This is my profile.

**** ARUN THOMAS XXN MS HARRINGTON
PN565

This is?---My profile.

PN566

This is your profile?---Yes.

PN567

Attached to that profile, “Started working at UniLife today, acting role as student advocate.” Do you agree that that’s what you posted on 5 July?---There is no date. I can’t - - -

PN568

I’m sorry about that. I wasn’t astute enough to get the date but - - -?---Sorry.

PN569

Do you agree that you posted that?---I can’t remember, I’m sorry.

PN570

Is that also the case that you can’t remember your other postings on Facebook then as well?---What do you mean by that?

PN571

In relation to this UniLife matter. A recent posting you put up about attending to the voluntary conference using the words, “Wish me luck. Fair Work Commission tribunal, feeling confident,” with a smiley sign, do you remember posting that up at the time?---No.

PN572

You don’t remember. Well, I don’t want to have a particular argument with my friend again but I will just put to the commission that this witness’s memory is rather faulty in a number of areas. I think that on this matter the NTEU has made its point. So I don’t particularly wish to pursue it other than to say, as I will in summary, about the credibility of the evidence of this witness. Can we then go – I think because you’re actually in agreement in your statement with the – I’ll just get your statement up again. On page 2 of your witness statement you actually agreed with statements made by other witnesses. So probably what we now need to do is to go to those witness statements so we can take you through those?
---Yes.

**** ARUN THOMAS XXN MS HARRINGTON
PN573

Perhaps if they can be supplied, Ms Coulls and - - -

PN574

MR BAKEWELL: I have marked mine up. I’ve got a copy.

PN575

THE COMMISSIONER: Is it your working copy or is it - - -

PN576

MS HARRINGTON: We’ve got extra copies.

PN577

MR BAKEWELL: No. It’s the document actually to be tendered.

PN578

MS HARRINGTON: We’ve got extra copies.

PN579

THE COMMISSIONER: Thank you.

PN580

MS HARRINGTON: Jen’s and also Daniel’s. Obviously in relation to paragraph 18 we have no issues. Paragraph 19, paragraphs 28 to 32, I think we have no issues on that. Then the staff meeting, paragraph 20, I think that’s also probably – 33, 35. Okay. No, we don’t need to – it’s on the Daniel Randell statement, I beg your pardon. So if we could go to paragraph 25 of Daniel’s statement.

PN581

MR BAKEWELL: Sorry, which paragraph was that?

PN582

MS HARRINGTON: Paragraph 25. So this takes us to the 26 September meeting and in particular can I take you to paragraph 32 of that statement. Do you also not recall Ms Fuller asking if this position had been identified as a redeployment opportunity?---I do not.

PN583

Now, do you still confirm in your evidence that you used the words in paragraph 36, fixed-term contract?---Yes, I do.

**** ARUN THOMAS XXN MS HARRINGTON
PN584

I have no further questions for this witness.

PN585

MR BAKEWELL: No further examination at the moment, Commissioner.

PN586

THE COMMISSIONER: Thank you very much. You’re excused.

<THE WITNESS WITHDREW [12.31PM]

PN587

THE COMMISSIONER: Did we cite Mr Thomas’s statement as R1? We could put that attachment and include that in his statement, the attachment you objected to.

PN588

MR BAKEWELL: Yes, Commissioner.

PN589

THE COMMISSIONER: We’ll just attach it to his statement for convenience.

EXHIBIT #R1 WITNESS STATEMENT OF ARUN THOMAS WITH ATTACHMENT

PN590

MR BAKEWELL: We have Jennifer Coulls to call as our next witness.

PN591

THE COMMISSIONER: Would you prefer to break now for lunch?

PN592

MR BAKEWELL: I’m totally in your hands, Commissioner. I’m happy with either course of action.

PN593

MS HARRINGTON: I’m happy with either course of action.

PN594

THE COMMISSIONER: I’d intend, if we break now, we’d be back by 1.30. Would that be okay?

PN595

MR BAKEWELL: Thank you.

PN596

MS HARRINGTON: Okay.

PN597

THE COMMISSIONER: We’ll adjourn now, thank you.

<LUNCHEON ADJOURNMENT [12.32PM]
<RESUMED [1.32PM]
<JENNIFER COULLS, SWORN [1.32PM]

PN598

THE ASSOCIATE: Please state your full name?---Jennifer Coulls.

PN599

And your address?---(address supplied).

PN600

And your occupation?---Consultant.

<EXAMINATION-IN-CHIEF BY MR BAKEWELL [1.33PM]

PN601

MR BAKEWELL: If the witness could please be shown a copy of her statement. Jennifer, the document that has just been handed to you is the witness statement together with attached references to that statement. Could you just briefly peruse that and confirm that that is your evidence in this matter?---Yes, that looks in order.

PN602

I’d like to tender the statement of Jennifer Coulls together with the reference documents therein, if the commission please.

PN603

THE COMMISSIONER: No objection to that?

PN604

MS HARRINGTON: No objection.

EXHIBIT #R2 WITNESS STATEMENT OF JENNIFER COULLS WITH ATTACHMENTS

PN605

MR BAKEWELL: I have no questions for the witness apart from that in the evidence.

<CROSS-EXAMINATION BY MS HARRINGTON [1.34PM]

PN606

MS HARRINGTON: Ms Coulls, if we could start at your witness statement at paragraph 17 which is on page 2. In relation to the 6 June meeting did you actually take notes of that meeting or not?---No.

**** JENNIFER COULLS XXN MS HARRINGTON
PN607

So you’re really going on your recollection of what occurred at that time?---Yes.

PN608

It has been put in evidence by Mr Joshi that a concern he particularly stated was that nothing had been formalised about his employment situation in terms of he’d had a change of job but he hadn’t received any formal correspondence. Do you recall that being discussed at that meetings?---Yes.

PN609

Okay, thank you for that. In relation to paragraph 18 of your statement clearly the information that you’re reporting there comes from Arun Thomas?---Yes.

PN610

Thank you very much for that. Leading up to that meeting on 6 June with Prashant had anybody at UniLife actually come to you in your capacity as interim general manager to say that they thought it was necessary for Prashant to receive a letter advising that he actually was undertaking the work of advocate?
---No.

PN611

Going to paragraph 20 of your statement and acknowledging that you didn’t in fact keep notes of that meeting, it has also been put in evidence by Prashant that his concern was about not so much that he didn’t see there was anything for him but his preference was obviously to do something else other than advocate but, at the end of the day, if the advocate was the only thing that was available he was actually prepared to do that in UniLife. Can you recall that sort of discussion at that time?---No.

PN612

If we can now move to paragraph 26 of your statement, you’re saying there that you became suspicious of Prashant’s motivations in offers to assist in tasks outside his advocate role. Could you give us an idea of approximately when you developed that view about Prashant?---When he became more vocal in his concerns about his ongoing role it became clearly apparent to me that, effectively, he had lost the job of campus manager and in that respect had taken up the role as advocate, and it is my opinion that if that is the case then that is the duties that he should be doing and it is not appropriate that he continue to undertake duties where a role does not exist except in the case that I have outlined.

**** JENNIFER COULLS XXN MS HARRINGTON
PN613

So you’re certainly clear in your mind that his role as campus manager didn’t exist at the time?---I’m clear in my mind.

PN614

So, again, could you just give us an approximate date when you came to that view?---No, I can’t. It was an evolving period based on circumstances at the time.

PN615

Well, you also go on to say in paragraph 26 that you became suspicious and therefore limited any direct tasking of him to those matters that he had either previous committed to, such as Open Day and all barbecue bookings – I’m assuming they’re the two things specifically that you’d limited his responsibilities to. Is that correct?---That’s correct.

PN616

In order to fulfill the obligations made by UniLife to third parties. At this point I’d like to give you the document Joshi 11 for you to look at. I’ll give you some minutes just to read through those. Those obviously – and you’re not disagreeing that they were emails that you sent to Prashant and that they are dated, respectively, 23 May, 3 June and 21 June?---Mm.

PN617

It would appear that the matters being raised in those emails are not matters pertaining to UniSA Open Day or barbecue bookings?---Correct.

PN618

Also – and Prashant has given this in evidence – these were the sorts of things he was undertaking as campus manager and that he was in fact responding to direct requests from either yourself or the student president in undertaking these tasks. So would you agree that in relation to these emails that’s what he was doing?
---Not entirely.

PN619

Why wouldn’t you agree with that?---Because in terms of the first one you presented to me about the rostering, Prashant approached me some weeks before on the basis that one of the counter staff was going on leave and we needed to do something about that. So he approached me and I asked him for his recommendations and he provided them to me, as somebody who has that experience.

**** JENNIFER COULLS XXN MS HARRINGTON
PN620

What about in relation to the issue concerning the minor capital works submission?---When it became apparent to me that this wasn’t appropriate for Prashant to be undertaking this work I pulled him off that project.

PN621

But certainly the correspondence that we have tabled says that in fact – well, we don’t have any evidence about your pulling him off but up until 21 June it was clear that Prashant was actively involved in this with your permission and approval?---And, as I say, that must mean that I became aware that it was inappropriate for Prashant to continue undertaking those duties.

PN622

Well, with respect, I mean, this is almost to the point where he’s getting his notification of redundancy. So I’d have to say it does – shall we say it’s not perhaps entirely square with your statement in paragraph 26 of your witness submission. So would you perhaps like to modify that slightly to acknowledge that in fact there were occasions when you actually did approach Prashant or, in response to his queries to you, actually require him to do some of those previous duties?---I am prepared to modify my statement to the point on existing matters of which work had already commenced, as per the roster for the leave of absence, and matters which he brought to me which needed resolution.

PN623

If I could take you to page 2 of the email of 21 June, the minor works, the initiating email if of 6 June which clearly shows that we now have an opportunity to consider further space utilisation. So clearly a reading of that email would suggest this was an entirely new matter which wasn’t something that preceded 6 June. So one would assume – in a way we’re just trying to get to the heart. Prashant’s evidence is, look, on occasions he was being asked to do things and he was a bit confused then, he was a bit torn. So we’re just trying to get to the fact that that did actually happen on occasion. Would you agree with that?---It did happen on occasion.

**** JENNIFER COULLS XXN MS HARRINGTON
PN624

Now, the problem is that with that happening on occasion you’ve clearly indicated in paragraph 26 that you, to use your word, had a suspicion about Prashant’s motivations and you passed those suspicions on to the student president. So don’t you think in a way that was behaving prejudicially to Prashant during that time?---No.

PN625

Why don’t you believe that was the case?---Because I don’t think it’s appropriate that somebody who had been effectively made redundant from a role should be continuing in a role when he already has been placed in an alternative role that doesn’t bear relation to that work.

PN626

This could be odd but in one sense I agree with you and in another I entirely disagree with you. There is actually no paperwork which you could have relied on which would actually verify the statement that he was redundant from his role as campus manager. So when you make that statement can I just say, in practice, I think that may well have been the case but there’s actually no paperwork available which actually demonstrates that that was the case. So could you explain how you got to that understanding that his – and we’re talking about in May/June prior to his actual notification of redundancy. The way I understood your statement, you were saying that role had disappeared. He was redundant from that and he got these other duties, which of course happened in late January. So where do you get the understanding from that he was redundant from the campus manager position?---I was advised by the president.

PN627

Thank you very much. That’s most helpful. Just moving further into your statement, if we could go to paragraph 30, perhaps that also takes us to the notification of redundancy. Yes. In that letter which you signed as the interim general manager, that is JC4 of your witness statement - - -?---Dated?

PN628

4 July?---4 July.

**** JENNIFER COULLS XXN MS HARRINGTON

Headed Notification of Redundancy?---Yes.

PN629

So in that letter you say, “UniLife as investigated all measures to mitigate the adverse effects of restructure of the organisation. This includes considering all economically viable options to avoid or minimise redundancies ... Consistent with this investigation” – next paragraph – “UniLife has considered all opportunities for you to be redeployed to another position. Unfortunately, we note that there are no available alternative positions that have been identified to date.” Now, you are in the first paragraph at that point on 4 July making him redundant from the role of campus manager. Why wasn’t it the case that the fact that he was actually in an advocate’s role considered to be an alternative acceptable position?---I don’t know.

PN630

Well, I think you have to have some understanding because you signed this letter. Does this mean that when you’re acting in the role of interim general manager you really didn’t have all the facts before you about the situation in UniLife?
---No. I’m saying that my understanding was that Prashant had put a proposal to the board about backfilling Marika De Graaf’s leave of absence and that this was a temporary arrangement for six months.

PN631

Now, that understanding came from the student president. Is that correct?
---That’s correct.

PN632

You never saw any paperwork about that?---There is paperwork. There’s minutes of a meeting where Prashant presented that alternative proposal to the board before I began. I was not in the organisation at the time but I have seen those minutes where that proposal was put to the board.

PN633

When did you see these minutes?---During this period of restructure, during this period of time.

**** JENNIFER COULLS XXN MS HARRINGTON
PN634

Approximately when? You can’t be specific about that?---No, I can’t.

PN635

But then again, just going back to that point, you can’t actually explain why it was that the alternative position could have been the advocate’s position?---I think in coming to this conclusion, in an earlier conversation that I had had with Prashant he said to me that he didn’t enjoy the advocate’s role, he wasn’t sure that it was for him. He stated that should he be unsuccessful in his application as general manager of UniLife he did not see a role at UniLife for him. That then prompted me to take the action in progressing his particular circumstances with some haste because I could see he was distressed about this situation and, on the basis of that and on the basis that the advocate role that he was in was a fixed-term appointment that would finish once Marika, should she decide to return to that role she moves into that position and his place in that role would end – at that stage there were no other positions available to him except for two contract advocate positions which had yet to be formalised.

PN636

Just again your understanding of what Prashant was saying was again going to that meeting, which we’ve already discussed, on 6 June where you admitted you didn’t take notes of what was actually said. So you may not necessarily have had a clear recollection entirely of what Prashant was actually saying?---I do. I absolutely do. I absolutely do recall those words.

PN637

Well, I think that is a counter to your earlier evidence but we don’t need to go there on this one. I’m still a little unclear. Given that Marika was not coming back until February of 2014, why wasn’t it put as a proposal immediately that Prashant could have continued on in that role to avert a redundancy?---We did not identify that as a possibility but, as the letter says, if he is able to identify an alternative position then we were happy to consider it, which we did.

PN638

Now, just in relation to paragraph 33 of your witness statement, just to clarify this point, Prashant did not attend the meeting on 5 July of all staff and we understand that was because he was specifically requested not to attend that meeting. Is that your recollection?---Correct.

**** JENNIFER COULLS XXN MS HARRINGTON
PN639

Thank you. If we could then go to paragraph 39 in your witness statement you said, “Option 1 was on a fixed-term contract basis.” Now, when we actually go to – and it is JC7?---Yes.

PN640

If we can go to page 2 of that document, to the option number 2, that clearly, in the title and in the text, states that this is option is one a fixed-term basis?---Are we talking about item 2, “Accept a permanent part-time advocate role.”

PN641

Yes?---That’s what you’re referring to?

PN642

Yes, that’s correct?---And your question or statement was?

PN643

I’m just leading up to that. Because you have in your statement said that option 1 was on a fixed-term basis. I’m just making clear about the use of terminology that actually appeared in the documentation versus how you’ve described it in your witness statement. So it was clear that option 2 was on a fixed-term basis because it says so in the title?---Mm’hm.

PN644

If we go to page 3 of JC7, the document you’re currently looking at, we see that just under the table is the statement, “Under this option you would continue in your permanent full-time advocate role until the commencement of the part-time, fixed-term contract.” So it’s quite clear to anyone who were to accept that option that they would in fact be giving up their permanency and moving onto a fixed-term position. If we now go back to option 1 there is no mention of fixed-term in the text of that option. There certainly is an end date to the proposal but that does not of itself mean – that means that the redundancy would take effect at that time. It does not necessarily mean that what then happens is the person becomes fixed-term. They’re actually two different things. Do you agree with that?---Can you repeat that, please?

**** JENNIFER COULLS XXN MS HARRINGTON
PN645

In option 1 a reading of this – and the very fact that specifically option 2 talks about being a fixed-term option and option 1 does not means in the reader’s mind a reasonable reading of that is that they’re actually offering two different proposals. While option 1 has an end date, obviously saying this arrangement has to cease, and unless we note in the second paragraph of the option 1, “If we’re unable” – meaning UniLife – “to secure you ongoing employment beyond that date, your employment may be terminated due to redundancy.” So there is, if you like, a difference between staying on at your continuing employment and saying, “Well, look, if nothing changes, unfortunately we have to end your employment because there’s nothing for you after that date,” but that doesn’t make the person per se fixed-term. It just means that their continuing employment has an end date now because the arrangement which averted redundancy will come into play - - -

PN646

MR BAKEWELL: Commissioner, I’m not sure there’s – sorry, to interrupt my friend. I’m not sure there’s actually a question here. There’s statement, propositions and interpretation but - - -

PN647

MS HARRINGTON: It’s just this witness is the author of that document. So one would assume that she – what her intention was in writing is important but also - - -

PN648

THE COMMISSIONER: I also recollect, Mr Bakewell, there was a request to repeat the question. So there has been a lot of explanation going with it.

PN649

MS HARRINGTON: Perhaps if I phrase it this way. Do you appreciate that a person looking at this document would say obviously and immediately option 2 was essentially fixed-term because it was very clear that’s what you meant. Option 1 could be read another way. Can I put it to you that way?---No. I think it’s clear to me with an end date and that it is to backfill a leave of absence which concluded or due to conclude on 28 February. It was clear to me in writing that that there was an end date to Prashant in that role.

**** JENNIFER COULLS XXN MS HARRINGTON
PN650

But essentially he was continuing what he was doing, wasn’t he? I mean, he was already in that role. We’ve all agreed that. He was backfilling for Marika. So essentially you’re just saying, “Well, at the end of that arrangement there will be a redundancy if we can’t get any other employment.” Really, that’s the nub of it, isn’t it?---Because there was an end date.

PN651

That’s right. I’m happy with that. So if we could now go to I think the last question.

PN652

THE COMMISSIONER: Just before we leave that document, while it’s fresh, if we look at JC7 which is your document – you’ve answered those questions and I follow your answers. This letter refers to the previous letter from Prashant. You have framed it, “UniLife has considered your request to be redeployed into an advocate position.” So I take it you consider that the letter of 8 July amounts to a request to be redeployed, which is Joshi 6. Have you got Joshi 6 there?
---Notification of redundancy letter dated 8 July, JC6.

PN653

Yes. Now, Mr Prashant has responded to the advice about his redundancy?
---Yes.

PN654

He refers to his current role as student advocate, “as previously agreed and appointed by the board”. He has undertaken a role, talks about work and he says, “Continued employment is an option for me as an advocate within the new structure. I will continue in the advocate role.” Where do you get the instigation that this letter amounts to a request to be redeployed into an advocate position? It’s just your form of words. I’m just wondering where you got that thought?
---Sorry, can you please repeat your question?

PN655

You’ve just used that form of words?---Yes.

**** JENNIFER COULLS XXN MS HARRINGTON
PN656

That this document, Mr Prashant’s letter to you, forms a request to be redeployed into an advocate position. Now, he has been working in an advocate position for some months. He has just been advised he’s being made redundant from his former role and you have taken this letter as a request to be redeployed. Redeployment is a very topical word in industrial relations. So I’m just wondering why you’ve framed it that way or what you consider that meant?---I don’t know. It’s a word that I used in terms of responding to Prashant’s request or identification of a role in which he could be placed.

PN657

So at that time can I assume that you considered Prashant to be in a fixed-term employment situation?---In the backfill of the role of advocate that he was operating in?

PN658

Whatever he was doing, his status was - - -?---It was fixed-term.

PN659

- - - fixed-term?---Fixed-term.

PN660

MS HARRINGTON: Was that prior to 8 July that he was fixed-term?---My understanding – given that he was in a role for six months as approved by the board, I consider that to be fixed-term.

PN661

Thank you. You’ll be pleased to know I’m taking you right to the end of your statement now, paragraph 57. It’s to do with JC19 which is right near the end of the documents. If you could start at the back of the documents and go three pages in which is the restructure of UniLife, final managing, change plan dated 12 August and, the bottom section, implementation and review process. In terms of the statement, “The final placement of staff is expected to occur by the commencement of study period 1, 2014. So clearly in relation to this restructuring plan, which we can find in August, there was going to be a fairly, shall we say, long lead-in time in terms of finally implementing that. Is that agreed?---Correct.

**** JENNIFER COULLS XXN MS HARRINGTON
PN662

I have no further questions, thank you.

PN663

THE COMMISSIONER: Anything, Mr Bakewell?

PN664

MR BAKEWELL: No questions arising from cross-examination.

PN665

THE COMMISSIONER: Just one thing before we allow you to stand down. Have you seen the proposal that went to the board from Prashant?---No.

PN666

You’ve never read it?---No.

PN667

You understand he was given oral advice that his proposal had been approved?
---Yes.

PN668

Okay, thank you. You can be excused.

<THE WITNESS WITHDREW [1.59PM]
<DANIEL RANDELL, AFFIRMED [2.00PM]

PN669

THE ASSOCIATE: State your full name?---Daniel Randell.

PN670

Your address?---(address supplied).

PN671

And your occupation?---General manager of USASA, formerly UniLife.

<EXAMINATION-IN-CHIEF BY MR BAKEWELL [2.00PM]

PN672

MR BAKEWELL: If the witness could be provided with a copy of the statement. Thank you.

PN673

Daniel, would you please peruse that document that has been placed in front of you and identify whether or not that is the evidence you have given in relation to this matter?---Yes, I can confirm that.

**** DANIEL RANDELL XN MR BAKEWELL
PN674

If the Commission pleases, I'd like to tender the statement of Mr Randell together with the attachments.

PN675

MS HARRINGTON: And I have no objection.

PN676

THE COMMISSIONER: That will be exhibit R3.

EXHIBIT #R3 STATEMENT OF DANIELL RANDELL

PN677

THE COMMISSIONER: Are you finished, Mr Bakewell?

PN678

MR BAKEWELL: Thank you. I have no further questions for the witness.

<CROSS-EXAMINATION BY MS HARRINGTON [2.01PM]

PN679

MS HARRINGTON: Daniel, I appreciate that you have probably come into an interesting situation, if I can put it that way, in UniLife, and obviously you've received a lot of your information from people who have been working in the organisation so we do appreciate that some of your understanding is derived from that. In terms of the briefings that you received, where did you receive that information from?---I received a handover briefing from the interim general manager Jen Coulls. I attended an induction day with the board prior to commencing my role. I then received further information from the president when I started the role.

PN680

If I could now take you to your witness statement. I think it's more a matter of clarity, I suppose, than anything else. In the section which starts at paragraph 12 entitled Advocates' Roles, there does appear at least - no, 12 is okay. Sorry. Number 14, if you could go there. You actually use - in that sentence you talk about, "The advocate role will be advertised in early January 2014 as a permanent full-time position on a 12-month fixed-term contract." Actually, those things are a proposition at law. If you are permanent, you're not fixed term. Could I just clarify with you what is actually intended by that statement?---The intention is full-time fixed-term. So, a fixed-term period on a full-time basis.

**** DANIEL RANDELL XXN MS HARRINGTON
PN681

I think that reference also occurs in paragraph 15 as well, so we've clarified that. Obviously, if we could then go to the section headed Prashant Joshi and take you to paragraph 18, you've obviously been in court today and you've heard Prashant's explanation of what his comments were in relation to the issue about the confidentiality of this conversation with you. Are you comfortable that that's a reasonable interpretation of what occurred at that time?---Sorry. What's the question? I don't understand.

PN682

Well, you're saying - you focussed in your statement saying you thought he was particularly concerned about Jennifer Coulls in making that statement. Now, Prashant has obviously said, "Look, there are other things that have happened previously and that was - my sensitivity arose under that." So, would you now agree that possibly it just wasn't aimed at Jennifer Coulls in relation to his comment?---I'm still not sure what is the question, to be honest. You're asking me to guess what he was thinking, or - - -

PN683

No. You've made a statement where you say, "I think it was" - - -?---I stick with my statement. That's my understanding.

PN684

Now, in relation to paragraph 22, the, "I'll do whatever you want me to do". Do you also believe that that was interpreted in a way that meant, "I really want to work for UniLife. I'm prepared to take on any responsibility. If that's something I can do, that's fine"?---Yes, I would agree with that.

PN685

If we can now go to paragraph 29, where you actually advice Prashant that there was no change to his position in relation to the September restructuring. At this point - and I will need to call on my friend Juliet to assist you with this - I think it would be helpful if we actually do a comparison of the position description that Prashant was provided with in the restructuring in July and then the subsequent position description that he was provided with in September, and those two documetns are actually found at - the first one is Joshi 8 and the subsequent one is Joshi 9. At this point I will take some responsibility here, Daniel. I never checked. I'm not giving evidence from the bench, but on the assumption that they were the position descriptions, that was accepted by the NTU and Mr Joshi, but when in fact an analysis is done of those two position descriptions, there are a number of changes between these two position descriptions. Before I detail those, can I ask perhaps what your understanding was about how these changes came about?---Sorry. I'm not entirely clear, if you can clarify, because my statement at 29 is about his contract of employment, not about his position description. Our statement is that your contract of employment is not changing.

**** DANIEL RANDELL XXN MS HARRINGTON
PN686

Attached to the contract of employment - - -?---The position description doesn't form part of the contract. That's what my understanding is; that that position description can change.

PN687

In the material that was provided to Mr Joshi on - my understanding is on 26 September Joshi 9 was an attached position description, so one would assume from that that was actually part of the no-change. I mean, if there's going to be a change, that could then be the subject of a restructure because they've actually changed their responsibilities. We're just going to get to the heart of the issue of was there any change from Mr Joshi on the 26th. You're now prepared to agree that there was a change to the position description. Is that what I'm hearing?---I would state that we basically - what would be the right word? - define the position description, I suppose. The intention of the role was the same in consultation with the - who was to become the team leader advocate. As part of the process when I started at UniLife, I reviewed all position descriptions, and where they appear to need to be updated, then that was done. So I don't consider that to be a new position description, I considered it to be a refining of the existing position description.

PN688

Perhaps if we could go to Joshi 8 for instance. The position there is headed Student Advocate and Proactive Officer. Subsequently in J9, the position is headed up Advocacy Officer. One would assume again that did actually imply a change to the role because clearly a function had been lost which was significant enough to be included in the title?---That was not my intention when writing that at all, no.

PN689

Perhaps I could point you to just another - - -?---My understanding was that it was the same job. We're just basically refining the position description, and the title of that role reflected exactly the role as was performed. It's just different wording.

**** DANIEL RANDELL XXN MS HARRINGTON
PN690

If I can just point out to you that there is changed wording in the broad purpose of the position, in the key stakeholder section, the reporting relationships section - which I think has been acknowledged in terms of one pay change that occurred. The addition of a strategic alignment section in the September PG, changes in the special - - -?---Because there was a difference strategic plan from then, another - - -

PN691

And in the core responsibilities, which - those read as we are PDs know that the guts of any position description is what you're actually meant to do - and there are changes in duties 1, 3, 5, 7, 8, 9 and 10, and we would say that some of those changes are not just insignifncant, they're actually fairly significant. Again, I think one of the issues here is that - no change has occurred, that would generally no change has occurred, but you do agree that there was a change to the position description?---I agree that there was a change to the wording of the position description, but the purpose overall as a student advocate was the same.

PN692

If perhaps we could now go to the meeting of - and it is still that 26 September meeting. Now, obviously you're aware of the fact that there are differing versions of what was said at the meeting. Did you actually keep notes at that meeting?
---No, I don't believe I did.

PN693

You're actually going on your recollection?---Yes.

PN694

One of the contentious issues again - and again I know you're going to the best of your recollection, but we have a clear position on our side from our witnesses, if we go to paragraph 36 of your statement, that Arun did not use the term fixed-term contract. Would you agree that may not have occurred? You might have been thinking - - -?---My recollection is that he used the term "fixed-term contract".

**** DANIEL RANDELL XXN MS HARRINGTON
PN695

But on the basis that you hadn't kept notes? No, that's fine.

PN696

I think in terms of the rest of this, I have no other questions for you. Thanks, Daniel.

PN697

THE COMMISSIONER: Thank you. Mr Bakewell.

<RE-EXAMINATION BY MR BAKEWELL [2.12PM]

PN698

MR BAKEWELL: Thank you, Commissioner. Daniel, I think Kathy has suggested to you or put a proposition to you that the job descriptions changed, and I think you've been referred to both of those documents. As I understand, your response to that was that it was a refinement; that ostensibly the duties had remained the same. Would you like to please have a look at the - I think briefly - the core responsibilities section which Kathy took you to?---Sorry. I'm - - -

PN699

Both of the documents. So, let's take the first one, which I think is Joshi 8 and then the second one which is Joshi 9?---The broad purpose. Is that the one?

PN700

Core responsibilities. And I think under Joshi 8 there are some nine duties with a statement underneath it that "the duties as specified might be altered in accordance with the changing requirements of the position"?---Yes.

PN701

Then under Joshi 9 there is similarly a heading called Core Responsibilities, which has 10 core responsibilities. May I just ask you to briefly compare the two documents and perhaps, if you're able - just take a few minutes, just an important point - outline for the Commission what you understood to be these refinements?
---I might have to go back and look at the former one. The main refinements that I can see on a quick look is the reporting to a team leader, which was essentially the main change around the - the position description was that it was reporting to a team leader on this basis in order to provide consistency of service and best practice. I'm not seeing anything else. On a quick look, obviously that appears different to me.

**** DANIEL RANDELL RXN MR BAKEWELL
PN702

It's your understanding it's basically the same job?---Absolutely. The process with this was when I started I was advised that all of the position descriptions needed to be looked at, and it wasn't necessarily at that point in time that point in time that roles were changing, but was to make sure that the position description was updated. So, the process ofw riting this position description was to sit down with the long-term experienced advocate Lewis and actually say, "Look, here's the old position description. Does that still reflect the role correctly as it is right now?" and we basically sat together and reworded it. But the purpose of it - there was no brief around, "This is now a new role," or, "We're changing the role." It was, "Can you help me, I suppose, refine this document so that it best reflects this document as it is now and as it has been on an ongoing basis; this advocate role."

PN703

Is it your understanding that the description of the role as it is presently there is how the role is being performed at this current time?---Yes, I believe so.

PN704

I have no further questions for the witness.

PN705

THE COMMISSIONER: Thank you, sir. You're excused.

<THE WITNESS WITHDREW [2.16PM]

PN706

THE COMMISSIONER: Mr Bakewell, would you like 15 minutes or are you - - -

PN707

MR BAKEWELL: I don't think so, Commissioner.

PN708

THE COMMISSIONER: Okay.

PN709

MR BAKEWELL: I'm happy to - - -

PN710

THE COMMISSIONER: Would you like - - -

PN711

MR BAKEWELL: Well, naturally, Commissioner, in summing up our case we of course rely on our outline of submissions. I don't in any way, shape or form believe that, based on the evidence that we have heard here today, anything detracts from the outline of submissions that we have provided. In my view, this is a matter where the key facts are largely uncontested. There is a differing view on some of the facts as to what they mean, and some of those are important. I believe, based on the evidence and the documentation, clearly some of that is germane and relevant to the issues at hand here.

PN712

If I might start in somewhat of a chronological order of what we say are the facts of the matter borne out by the evidence, the instigation for the board's consideration of Prashant performing an advocacy role this year was a matter commenced by Prashant in his document proposal put to the Board, and it is abundantly evidence that that proposal countenanced a fixed period of time under which Prashant would have various options, all largely stemming around the end of his employment by way of a redundancy. There is nothing evident at all in his proposal to the board that he had, did or expected any continuing rights of employment beyond July/August.

PN713

I think it's also relevant from the evidence that that proposal was borne out of his concern, which we would take no issue with, about the future of his role that he held at that time. It is clear - and I think it is not challenged on the evidence - that the board considered that matter and that the board responded to that proposal in the affirmative. Whether we call ti a trial or something else, it is apparent that what the board approved was not ongoing employment. That would be consistent with what was put by Mr Joshi to the board, and that the board countenanced employment in a position in a role up until the period of around July.

PN714

We would agree that it is unfortunate, and perhaps a lot of grief had have been avoided had that entire proposition of offer and acceptance been put in writing and confirmed. But nevertheless, we do have what we have, and we also have uncontrovertible evidence that the board's acceptance of that proposal in a form was relayed to Prashant by Arun. So, at that stage, all in sundry are proceeding under some understanding, but we say there could not ever be an understanding that employment was ongoing beyond July. There is simply nothing in either the applicant's evidence or the respondent's evidence to ever suggest such an idea.

PN715

We would submit that what has happened is that when the issue of the general manager has been settled down, when Jennifer was appointed to the role around April/May, that she has sought to, if you like, restructure the organisation, clean it up, clarify all expectations to deliver to the board a structure proposal that it could live with going forward from July. We would say that it's abundantly celar that those proposals, those propositions, were proved and subsequently relayed to employees and the union about what decisions had been made, and that was done in the context - and I'll talk about this later - of its obligations to deal with the award and the award obligations dealing with the management of change.

PN716

It put a position that it had come to, and we think the position that it had come to with respect to the discontinuation of Prashant's employment were largely consistent with what was an expectation of what would happen with Prashant's employment come July. We put to the Commission that it should disagree with the proposition from the applicant that such a proposition to end employment in July would come as a shock, as a surprise, as a bolt out of the blue. How can it be said that this is the case where the enactment of those process began indeed with the applicant and his own proposals?

PN717

However as the case might be, as it turned out, the process of consulting with employees and with their representatives led to Prashant and to the union putting a proposal to the employer to continue Prashant's employment and not to make him redundant. We say that that response is again consistent with what is expected of the management of change provisions under the award. That is, that there is an opportunity for mitigation or other alternatives to be put, carrying with it an obligation on the employer to give genuine consideration to those obligations as borne out in the case law about what consultation is meant to be. So, that then gets to the issue of what the employer did about that and those proposals and where it ended up.

PN718

We say that what has happened is that UniLife have put an unequivocal, clear proposal of employment to Prashant that he could occupy the position of an advocate, that the reason that he would occupy the position of advocate was for a specific purpose - and that specific purpose, uncontrovertible again - was to backfill an absence by Marika. Further to that, the employer has made it abundantly clear that that proposal carried with it an end date of employment of 28 February. We submit to the Commission that no so-called ongoing employment comes with an end date. It's contrary to the notion of ongoing employment.

PN719

Not only does it have an end date, but it's clear from both the offer and from the contract of employment that the implication of the end date coming was that there would be no further employment. The Commission should resist the applicant's evidence that he understood that it was only about his position. It was clear that it was about his employment. It was clear that it was expressed in terms of loss of employment. Further, we also say under the documentation with the options and the contract of employment that the employer's decision about whether employment would continue beyond 28 February or not was in large or totally dependent about the decision that Marika would make about whether or not she would be returning to work or not.

PN720

We say that proposition has been put to Prashant for consideration and he has accepted that. That proposition and its acceptance has come out of an event, that event being the restructure formally advised in July. That is critical to our case, Commissioner, because we say that the employer's obligation to consult under the award arises out of an event of change, and there is then a sequence of events that follows. The employer advises the employee and their representatives of the definite decision, the employer countenances options to mitigate loss and then something is done about that. Well, something was done, and what was done were the things that I have described. We say, Commissioner, under the terms of the award, that brought the employer's obligation to an end.

PN721

It comes to an end because those steps in the award dealing with change are specific to an event that affects an employee, and that is what has happened here. We submit that when Prashant signed and accepted that contract of employment with that end date under those conditions, a new status quo was set. What is that status quo? What is that new thing? That is that from July, Prashant was engaged under a contract of employment with an end date for a sepcific purpose. It is not a controversial matter, in our view. Such a proposal is entirely consistent with the award under which Prashant is employed, and in our submission, Commissioner, we have referred to the award and we have referred to the provisions of the award, and I think it's clause 10.3.

PN722

I don't care to take you through it all at the moment, but clause 10.3 provides a definition of what a fixed-term contract is. Amongst other things, a fixed-term contract is a contract with an end date. We say tick. The award goes on to be quite explicit, though, about what a fixed-term contract must be about and it explains a number of those issues. One of the reasons for a fixed-term contract being entered to, expressed clearly in the award, is to deal with the covering of an absence of an employee who is on approved absence. Tick. So, the award has been complied with entirely in terms of what is a fixed-term contract.

PN723

We can see nowhere else in the award where the notion of ongoing employment or permanent employment deviates from that. The award is clear. The only one thing that seems to be confusing matters here, again, is the untested evidence of the employment which we say you must accept, which is why the heck it put a redundancy entitlement into the new contract. The evidence unchallenged is that it did so as a matter of goodwill. We think, Commissioner, that at the moment the employer is being penalised for that measure, that gesture of goodwill, in that it has agreed to a contract which is clearly fixed term, but as a gesture of goodwill, it has said, "Heck, mate. If you don't get a job at the end of this, we'll give you a redundancy."

PN724

If more clients did things like that, I would have thought that many employees would be very happy. That seems to be the only issue that is confusing the facts of this case, is the fact that there is a redundancy entitlement. The employer has simply done that as a gesture of goodwill. It does not, we say, in any way, shape or form detract from the nature of the contract that it has a clear, explicit fixed term and an unambiguous view about what will happen to employment at the end and the purpose for which it is served. What is the point of all of this? The point of all of this, Commissioner, is that the event that is now before you - the matter that is now before you is that of a vacancy in UniLife's operation, which I think it's called the clubs and events officer.

PN725

An employee has now resigned; a position has become vacant. Prashant has put up his hand and he has said, "I would like to be considered for that. Heck, I'll go one step further. You have to give it to me." As I understand it, unless I'm wrong - and I'm sure Kathy will correct me if I'm wrong - the applicant seeks an order from the commission for the employer to redeploy Prashant into this role. We say that such an order should be resisted on a number of grounds. First of all, we say that such an order is beyond the jurisdiction of the Commission. The Commission can only make orders about matters that arise under a Fair Work instrument. The Fair Work instrument that is before you is the Higher Education Industry General Staff Award 2010.

PN726

The clause upon which the applicant relies is the clause dealing with the employer's general obligations to consult. The process of consultation, as far as I'm aware, Commissioner, in that award is no different to mainstream modern awards, where it requires a consideration of a change, an opportunity for an employee and their representative to put a proposal and an obligation of an employer to consider that proposal. There is nothing at all in the process of consultation that obliges an employer to accept a proposition put to it by an employee or a representative.

PN727

Why is that important? Because we say that the Commission is constrained by the Act to the scope of the matters given to it under the award. It cannot make an order that is inconsistent with it. It cannot make an order that goes beyond that. If I can put it another way. If the Commission was of the view that the employer has indeed breached the consultation clause, the only thing it could do, in my view, is make an order for the employer to consult about that matter to remedy any so-called deficiency. The case law provided by the applicant goes to those types of orders, where an employer has failed to consult.

PN728

In each and every case, the remedy provided is a direction for the employer to consult. There's no direction, there is no order to do a particular thing beyond that like redeploy an employee into that job. We say that is beyond the Commission's jurisdiction. That's point 1 that we make. Point 2 we say, well, why would you make an order to consult in any event? We say that has already occurred because no matter how it came about, representations have been clearly put to the employer about the merit or otherwise of putting Prashant into this position. It had been put twice, at least as far as I'm aware from the evidence. The employer has considered it.

PN729

The employer has said, "I don't agree," and there is nothing wrong with that, Commissioner. There is nothing wrong with following a period of consultation that, having matters put to a party - or in this case an employer - about what it should do. There is nothing that compels an employer to accept a consultation put under a consltation clause, and this employer has said no. It's entirely within its power to do so. It's entirely within the meaning of the award to do so. It might not agree with it, but it's right to do so. The second reason why we say the order for the remedy sought should be rejected is the point that I came to earlier. You need to have a look at the consultation clause and what it's about.

PN730

We say that consultation about change is a process. In this case, that process started in July and it ended when Prashant signed his new contract of employment. Why? Because that was the change that affected him. That's it; end of the process. A new status quo set. What has happened since? We say nothing. Nothing has happened in respect to Prashant's employment that invokes the consultation provisions. Nothing. His employment has not been disturbed. Others were accepted, sure. We accept that. The consultation that did occur, quite the contrary, was to let Prashant know, "Prashant, it's okay. Letting you know that this restructure doesn't affect you."

PN731

"Doesn't affect you." That has not been contested. "It doesn't affect you. Nothing is disturbed in terms of the arrangements that were put in place in July. So, how does the clubs and events officer vacancy arise in the context of that change? How does it affect Prashant? In our respectful view, it doesn't. Sure, it's a vacancy, but it does not arise out of that process of change envisaged by the award. We'd further put this point. The applicant puts the proposition that Prashant has a right to be redeployed, and I think the Commissioner raised this issue earlier to one of our witnesses, that redeployment in an industrial sense has a very particular meaning.

PN732

If you might indulge me for one moment, I will give you my particular slant on that, and that is that a redeployment occurs as a result of somebody losing their job. "I don't have another job. Is there a job for me to go to? The job has been made redundant. Where am I going to go?" That occurred in July when the employer made a decision to end Prashant's employment. A new contract was entered into, a new basis of a fixed term contract was entered into and a job was provided with certainty beyond the initial period that had been agreed. That resets the clock. He is now clearly under a fixed-term contract with an end date.

PN733

As we stand here today, he has now lost his job. There is nothing to redeploy. It is foreshadowed that his employment will end, yes. We accept that. But it is not a redeployment. We accept the fact that Prashant accepted this option because he could look for other jobs, that it extended the time period of his employment. We concur with that. We take no argument with that. But what is in issue between the parties is how that comes about, and we say that comes about because a vacancy arises. Having regard to his new contract of employment, while he is employed he is clear to apply for it. He can. That opportunity is there.

PN734

It is open to him to apply for work. While that work is there, he gives himself every chance of making those applications and extending his employment. We can understand that. But we say that does not give him a rise under the clause suggested by the union under the award to be redeployed or sent into that role. For those reasons, Commissioner, we say that the application is incorrectly founded. We say that the Commission has no jurisdiction to deal with the application as made. We say that the award provision used by the union to invoke its application has no effect in this matter because that matter was dispensed and dealt with in July.

PN735

Unless you have further questions of me, I think they are my submissions.

PN736

MS HARRINGTON: Thank you. I appreciate my friend's description of the chronology, but the clarity that he described events is really not the reality of the situation. What we would say is that we're confirmed in our belief by the evidence that was actually presented today by the respondent's own witnesses about what their understandings were about particular situations, and it's quite clear that this is a complete mire in many respects, and in that sense it is very difficult then to work through those situations. What we believe is important is that we do establish the facts of the case.

PN737

One of the first facts is that there have actually been three major workplace changes in UniLife. It now appears from the evidence that the first workplace change, if I can use that term, back in December/January was one which didn't follow any particular process at all. This is not the subject of the matter before you today but I think this, if you like, is the genesis of a lot of the problems which have subsequently followed. The unequivocal clear proposal, to use my friend's words, about what the board accepted, Mr Joshi's proposal and everyone then worked clearly to that framework, is not supported by the evidence.

PN738

There was no explanation available from either the student president or the interim general manager as to why Mr Joshi was never written to about what his employment was between January and July, so we can only say, sir, that this just muddies the water further. It is quite clear however from the evidence that we believe we've presented in our witness statement and through our witnesses that his job as campus manager had actually disappeared during that time, so effectively he became an advocate in January. But he did note, despite what Ms Coulls believed and expressly stated in her evidence, that at that point he had given up his continuing status. He was then fixed turn.

PN739

That clearly was not the case. You can't inadvertantly give up your continuing status by agreeing to change your position, so clearly he remained continuing during that time. We say that that's not - we don't believe that's actually a fact which is dispute between the parties despite Ms Coulls' evidence today. Then we get to the events of July in relation to the second restructure, if we could put it that way. Clearly the author of the letter about the options herself believed, as she has admitted today, that Mr Joshi was in fact already fixed term. One assumes in some way that was basis she was writing that letter on.

PN740

But as was pointed out by yourself, Commissioner, in fact Mr Joshi, in his response to the notice of redundancy, is quite clear that he wishes to continue in his current role as student advocate and he wishes to maintain continuing employment, and his understanding of the options that were offered, we've been very clear in our witness statements, we've been very clear in our evidence that there was no belief that he was giving up his continuing employment status. Now, if perhaps I can go to the award at this point, because I think it's very interesting, if we look at clause 8 of the higher education general staff award, and in particular obviously 8.2, this issue about employers to discuss change.

PN741

I suppose it's typical in most sectors, and in this respect UniLife is no different, although I might point out I think the universities are a little different, but we go to the normal employment situation. When someone is told that they are about to become redundant, unless there are immediate measures to revert that redundancy, then typically that person will leave within a very short time of the notification of redundancy. That is typical. So, this whole - I think this whole clause is structured around that, if you like, normal practice. It's very interesting. When you go to 8.2(b), it talks about "when the discussions" - and we're talking about the discussions in (a) above, which are the discussions which are about measures to revert or mitigate the adverse effects of changes on employees, when they must commence.

PN742

But the award itself doesn't say when they must cease, and I think that's a very important point because the position that has been put to you today is once we had a conversation, leaving aside the merits of that conversation - I'll get back to that in a minute - once we had that consultation, I should say, we had discharged our responsibilities under clause 8.2. Well, I say that is not the situation at all. I say the intent of clause 8.2, when read in its entirety is that where a person has been effectively designated for redundancy, if we could use that, while they remain in the employ of the employer there is still an opportunity which can be taken up to try and have measures to avert or mitigate the adverse effects.

PN743

I cannot read into 8.2 any obligation that finishes once, for instance, you've said, "Okay. Here's the end of our final proposal." If you do accept that latter position, we would say however that in restructuring 2, which is the July restructuring - and we've referred specifically to the final document - it was clearly stating that, look, it's going to take a while to implement this. It's August now but we're not going to finalise that implementation until February 2014. Clearly again that provided an opportunity for further measures to avert or mitigate the adverse effects of redundancy. So, it is an unusual situation we're talking about, but we say that clause 8.2 takes account of that.

PN744

Getting to the nature of that consultation, we're not in dispute that meetings occurred - that discussions occurred. But when of those parties to that conversation keeps saying, "We don't have to do anything because that member is fixed-term. We've discharged our obligations," that is not genuine consultation really as provided by the award. So, it is not sufficient to sit in a room - I think the case law that we have provided says very much it has to be genuine consultation. Now, we come to you today because unfortunately we haven't been able to resolve it amongst ourselves, but we say that obviously UniLife was mistaken in its position that Mr Joshi had become fixed term and therefore it really hasn't engaged with us about measures to avert or mitigate the adverse effects of redundancy.

PN745

We also say there has been no particular evidence has been brought today that Mr Joshi could not perform those duties of the position that we say he can be redeployed into, and I agree with the definition my friend has of redeployment and we say this is actually the ideal opportunity for redeployment to occur, because the person has lost his position. Whether that occurred, we say, in January - which we believe happened then - or July, the position is gone. So clearly this provides for a redeployment opportunity - we accept our friend's submission on that - and we say, "This is the ideal opportunity", but we haven't had those consultations, we haven't had those discussions.

PN746

Because we've had the full stop coming from UniLife. We don't have to do anything. Mr Joshi is fixed term, end of story. That's in. In that respect, we say that hasn't occurred. I think the reason we didn't, if you like, contest in evidence the issue about the concession - and we do appreciate it was a concession by UniLife to actually pay the NES redundancy provisions was because we think the correspondence speaks very clearly on this matter. I'll just get that for you. It's in relation to - it's very clear. The concession, if you like, the grace and favour by UniLife was in relation to agreeing that they would act as if their employer of 15 or more, and we do appreciate that concession that was made by UniLife.

PN747

When we come to the actual undertaking that was made by UniLife - sorry. I'm not able to find it at the moment - they're very clear when they say, "We will apply the NES provisions." Our understanding of that undertaking was that, yes, we'll agree as if we're 15 or more. It is JC 15. I will just read you - and it was from the interim general manager Jen Caulls, dated 18 July - "I wish to confirm that UniLife will honour the commitment to payment of redundancies as per the award for large employer. That is the redundancy payment provisions as set out in the NES." The NES of course does not provide for redundancy payment for fixed-term staff.

PN748

I think that's a matter we both agree. Redundancy payments are only available under the NES to continuing staff, so naturally enough when we receive this guarantee - and we read a letter where we say, "If you accept option 1, you will in fact be provided with a redundancy payment if we can't find any ongoing employment for you," then naturally enough we see that as confirming the belief that option 1 is an ongoing employment situation with an end date which is - unfortunately there is no work beyond you. We've managed to continue the existing situation that that will end at that time, and therefore at that point your continuing employment will cease and we will pay you a redundancy.

PN749

That is actually the basis. I think there has been a confusion. The grace and favour was the concession to act as - or agree to be bound by the NES, but once they agreed to be bound they would apply the NES and not go above the NES. We were clear in what was being proposed by UniLife at that time. On the qusetion of the power of the Commission, we go to clause 9.4 of the award which says:

PN750

Where the matter in dispute remain unresolved, Fair Work Australia may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.

PN751

We say, sir, that in this situation you do have the ability to in fact order redeployment because we see this as a genuine redeployment opportunity. We see it as avoiding a possibly unfair termination and we think that it is within the Commission's power to do so. I would take you to our outline of argument and again say that we stand by our submission within there. We have nothing further to add in that situation. Finally, I think I go to the - and I have to do this - I think we have to go to the credibility of the witnesses that have appeared before you today.

PN752

I'd always like to, should I say, accentuate the positive. I think there has been a - clearly from the evidence of our witnesses today, the applicant's witness, clear and consistent evidence which has been consistent with their witness statements. I would ask that in relation to Mr Thomas' evidence that his credibility as a witness be seriously considered in relation to the evidence that he has given today. I also therefore ask that because of that situation and where it has become clear that he has been advising other either interim managers or current managers of UniLife that must be taken into account.

PN753

I think in relation to Ms Coulls' evidence, I would say that there was confusion in terms of some of the points that she made in her witness statement. I think she showed today that there was even further confusion in her mind about some of the critical issues here, so I would ask that the Commission bears that in mind when considering the weight it will give to her evidence. Again, I think in relation to the current general manager clearly he has formed his views from information which he admitted today provided by other - either the student president or the interim manager which, in the circumstances, perhaps was not entirely accurate or consistent.

PN754

We would say the evidence that the NTEU has brought to this brought to this matter should be given significant weight when you are weighing up the practical issues and the legal issues in this case.

PN755

THE COMMISSIONER: Are you finished, Mr Bakewell?

PN756

MR BAKEWELL: Yes. Just one final thing, and I think this might well be worthy of a response, and something that my friend has just said has prompted my thoughts about this. And that is a proposition that I put to the Commission that this notion of a redundancy payment going with the fixed-term contract that ends in February as being an act of generosity. I just want to clarify that I was not referring to the matters as to a level at which that was paid. I'm talking about the offering up of that in the very first instance. The evidence which is not challenged was that that was not put in the original offer as UniLife being generous in its proposal.

PN757

It wasn't actually going to the issue of the level of the payment. It was about the initial offer that a redundancy payment would go with that. What I would note with that, though, is just have a look at this issue of a redundancy and the fact that my friends are saying that it's permanent ongoing employment because it has got a redundancy at the end. Just look at the facts, and the facts are these. That the job that the employee is doing will still be required to be done by someone. When Marika comes back from leave, that job is there, and that's why you have fixed-term contracts.

PN758

That's why you have fixed-term contracts with a start date and an end date, ebcause at the end of it there ought be a redundancy because it is clear that that job will be there. There is no redundancy. So, I'm just emphasising that point because the very definition of a redundancy is that it might be something that the Commission wishes to consider in its deliberation. If the Commission pleases.

PN759

THE COMMISSIONER: Thank you very much for your co-operation. I will get to this as soon as I can. My decision will be reserved.

<ADJOURNED INDEFINITELY [2.57PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PRASHANT JOSHI, AFFIRMED PN19
EXAMINATION-IN-CHIEF BY MS HARRINGTON PN19
EXHIBIT #JOSHI10 EMAIL FROM MR THOMAS TO MR JOSHI DATED 22/02/2013 PN45
EXHIBIT #JOSHI11 THREE DOCUMENTS - VARIOUS CORRESPONDENCE FROM MISS COULLS TO MR JOSHI PN87
CROSS-EXAMINATION BY MR BAKEWELL PN115
RE-EXAMINATION BY MS HARRINGTON PN365
EXHIBIT #A1 COMPRISING JOSHI 10 AND JOSHI 11, PREVIOUSLY MARKED PN389
THE WITNESS WITHDREW PN392
JULIET FULLER, AFFIRMED PN394
EXAMINATION-IN-CHIEF BY MS HARRINGTON PN394
CROSS-EXAMINATION BY MR BAKEWELL PN427
RE-EXAMINATION BY MS HARRINGTON PN493
THE WITNESS WITHDREW PN506
EXHIBIT #A2 WITNESS STATEMENT OF JULIET FULLER WITH AMENDED PARAGRAPH 35 PN507
ARUN THOMAS, SWORN PN524
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN527
EXHIBIT #R1 WITNESS STATEMENT OF ARUN THOMAS PN531
CROSS-EXAMINATION BY MS HARRINGTON PN532
THE WITNESS WITHDREW PN586
EXHIBIT #R1 WITNESS STATEMENT OF ARUN THOMAS WITH ATTACHMENT PN589
JENNIFER COULLS, SWORN PN597
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN600
EXHIBIT #R2 WITNESS STATEMENT OF JENNIFER COULLS WITH ATTACHMENTS PN604
CROSS-EXAMINATION BY MS HARRINGTON PN605
THE WITNESS WITHDREW PN668
DANIEL RANDELL, AFFIRMED PN668
EXAMINATION-IN-CHIEF BY MR BAKEWELL PN671
EXHIBIT #R3 STATEMENT OF DANIELL RANDELL PN676
CROSS-EXAMINATION BY MS HARRINGTON PN678
RE-EXAMINATION BY MR BAKEWELL PN697
THE WITNESS WITHDREW PN705