C2015/1023, Transcript of Proceedings [2015] FWCTrans 162 (25 March 2015)

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s.365 - Application to deal with contraventions involving dismissal

Mr Stephen Wintle
and
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(C2015/1023)

PN1

THE COMMISSIONER: Good morning. Can I have the appearances in this matter. Mr Wintle, it's your application and you're appearing. Is that correct?

PN2

MR S WINTLE: That's correct, Commissioner.

PN3

THE COMMISSIONER: For Metro?

PN4

MS M HOGAN: Melissa Hogan, industrial relations manager.

PN5

THE COMMISSIONER: Thanks, Ms Hogan. The purpose of today's hearing is to deal with the issue of extension of time. The parties have provided material which I'll rely on. Just for the purposes of identification, there are three primary documents. On 17 February at 4.11 pm, Mr Wintle has provided a submission in respect of the extension of time issue and I'll mark that W1.

EXHIBIT #W1 SUBMISSION OF APPLICANT SUPPLIED 17/02/2015

PN6

THE COMMISSIONER: On 26 February - that's last night - Mr Wintle provided some further information which I'll mark as W2.

EXHIBIT #W2 FURTHER DOCUMENTATION SUPPLIED BY APPLICANT ON 26/02/2015

PN7

THE COMMISSIONER: The employer, Metro, through Mr Shaw, has provided a submission on 20 February. I'll mark that M1.

EXHIBIT #M1 SUBMISSION OF RESPONDENT SUPPLIED 20/02/2015

PN8

THE COMMISSIONER: Mr Wintle did provide earlier versions of W1, on 13 February and earlier on 17 February, but I think all the relevant information is contained in W1. That's the information I've received, which I'll utilise. What I'm going to do is I'm just going to deal first with what I perceive to be the uncontested basic facts and check whether the parties accept that.

PN9

Then we'll ask Mr Wintle to give evidence essentially affirming the accuracy of the material that he has submitted and then answering relevant questions about that. Then, following that, we'll hear any final submission or argument that the parties wish to raise. Is that an acceptable way of proceeding as far as you're concerned, Mr Wintle?

PN10

MR WINTLE: Yes, Commissioner. I'd just like to ask - or raise a point.

PN11

THE COMMISSIONER: Yes.

PN12

MR WINTLE: I believe the representative for Metro is Colin Shaw. I wasn't informed of any change, but there seems to be a change this morning. Perhaps that's maybe because Mr Shaw is running late or forgot his appointment.

PN13

THE COMMISSIONER: No, I understand Mr Shaw is not available today and Ms Hogan is representing Metro.

PN14

MR WINTLE: Okay. One more point I'd like to raise is that the support persons that are here today, I guess supporting Melissa Hogan - is there a specific number of support persons allowed, because I feel pretty intimidated with these two people sitting behind me. It's making me pretty nervous and it will probably affect my submissions today.

PN15

THE COMMISSIONER: I see. It is a public hearing and there is no limit on the number of people who can participate, but if you're concerned that the people supporting Ms Hogan make you feel nervous, perhaps we could clarify - I don't think the two people at the back of the room are actually going to participate at all. Is that correct?

PN16

MS HOGAN: That's correct, Commissioner. They're here as a development opportunity for them. They're members of our HR team.

PN17

THE COMMISSIONER: Okay.

PN18

MR WINTLE: Perhaps, Commissioner, while they might not actively contribute within the courtroom as such, but they do form a part of the HR team. It's pretty much at liberty, if there's an adjournment or an interruption, that they could raise points of issue with Melissa Hogan and support her in that way, and it would be pretty unfair.

PN19

THE COMMISSIONER: Can we agree on this: the two observers, they're here as part of development for them. If they agree that they won't participate at all and they won't discuss the issue with Ms Hogan during the proceedings, does that make you feel more relaxed?

PN20

MR WINTLE: Not really, but I'll abide by whatever the commission decides.

PN21

THE COMMISSIONER: I think that will perhaps assure you that you're not being disadvantaged, if they don't participate in any way and they don't intervene at all with Ms Hogan, so it's just you and Ms Hogan that are dealing with this matter. Is that okay? All right. Let's then just deal with the first matter, which is just what I understand to be the uncontested facts of the matter, before we get some evidence from you, Mr Wintle.

PN22

My understanding is this - and I'll just go through this and if there's any point that you think is inaccurate, Mr Wintle, just make a note of it and raise it when I've finished. It won't take me terribly long. My understanding is this: Mr Wintle resigned his employment by email on Friday, 12 December 2014. The resignation was accepted by Metro and Mr Wintle did not seek to withdraw the resignation over the next few days.

PN23

Prior to the resignation on 12 December 2014 - that is, on the same day - Mr Wintle attended a disciplinary meeting with Metro at which he was issued with a first and final warning, and was relocated from the southern group to work from the East Malvern depot. Mr Wintle says that his resignation was a constructive dismissal.

PN24

Mr Wintle argues that the first and final warning was not justifying and that the relocation meant he would be unable to use public transport to travel to work on the occasions when his roster required an early morning start. Mr Wintle argues that he had no choice but to resign because he did not have available private transport.

PN25

Mr Wintle lodged a bullying complaint with the Fair Work Commission, AB2014/191, on 20 November 2014. A conference was held at the Fair Work Commission on 16 December 2014 and Mr Wintle discontinued the matter on 17 December 2014. One of the reasons for the discontinuance was because the other parties to the complaint and the Fair Work Commission pointed to the difficulty of pursuing the application, given that the employment relationship had at that stage ended.

PN26

Mr Wintle lodged his unfair dismissal application by email on Monday, 5 January 2015. The 21st day after 12 December 2014 - that is not counting 12 December 2014 - is Friday, 2 January 2015. They are the basic facts as I understand it in this matter. Mr Wintle, do you have any issue about those facts?

PN27

MR WINTLE: Yes. The actual application was lodged in person, Commissioner, both to the Fair Work Commission and to Metro Trains at their office in Spring Street. I had attempted to lodge it by electronic means on the morning of 5 January, but the system was recognising my F8 application as an F2. To cease any ambiguity in my application as regards the correct method, I decided to lodge it in person, so I travelled to the city and lodged it in person, but the dates are the same.

PN28

THE COMMISSIONER: I see. Just one second about that. Yes, you're correct, Mr Wintle. Our records do show that the application was lodged in person on 5 January. I apologise for getting that incorrect. Apart from that issue, do you have any issue with the summary?

PN29

MR WINTLE: No.

PN30

THE COMMISSIONER: Thank you. Do you have any issue with the summary, Ms Hogan?

PN31

MS HOGAN: No, Commissioner.

PN32

THE COMMISSIONER: In the material that you provided, Mr Wintle, I think you quite helpfully have addressed each of the considerations in section 366 of the Act, which sets out the criteria that I have to have regard to for an extension of time and you've attempted, I think pretty well, to explain your views about each of those matters.

PN33

What I think you should do is give some evidence now. I'm going to ask my associate to get you to take an affirmation or an oath that what you say will be the truth. If you're more comfortable, I'm happy for you to give evidence where you are rather than come in the witness box, but if you prefer to go in the witness box, that's okay with me.

PN34

MR WINTLE: Whichever the Commissioner deems fit.

PN35

THE COMMISSIONER: I'd like to make you feel as comfortable as possible, so I'm happy for you to stay there.

PN36

MR WINTLE: Thank you.

PN37

THE ASSOCIATE: Can you please state your full name and address.

PN38

MR WINTLE: My name is Stephen Carl Wintle of (address supplied).

<STEPHEN CARL WINTLE, AFFIRMED [9.14 AM]

*** STEPHEN CARL WINTLE XN

EXAMINATION-IN-CHIEF [9.14 AM]

PN39

THE COMMISSIONER: Mr Wintle, the way I'm going to approach this is, first of all, to ask you whether the material in W1, which is the submission you made on 17 February, and the material in W2, which is the material that you provided last night - first of all, have you got copies of those two documents?‑‑‑Unfortunately, I don't, but I'm pretty much willing to give up my copies. I know the contents of the documents, so - - -

PN40

No, sorry. Have you got a copy yourself?‑‑‑Sorry, I've got a personal copy, yes.

PN41

Yes, that's okay?‑‑‑But I don't have any to distribute. I just don't have the resources.

PN42

You don't need to. Ms Hogan has got a copy and I've got a copy, so that's fine. I just wanted to make sure you had one in front of you. That's all?‑‑‑Yes.

PN43

If we just start with the 17 February document, are the matters that you've stated in there true and correct as far as to the best of your knowledge?‑‑‑They are indeed, your Honour.

PN44

In respect of the material you provided last night, which is W2, is the material in there true and correct to the best of your knowledge?‑‑‑It is indeed.

PN45

What I thought I'd do - I just want to ask a few questions about that material and then if there's anything that Ms Hogan also wants to ask after that, that's fine. Then at the end of the questions that we've asked, if there's anything you want to give in evidence in response, that's obviously fine, but you don't need to deal with issues about submission or opinion because that's something that both parties will deal with later. All right?‑‑‑Mm‑hm.

PN46

Can I just start with the issue of the reasons for the delay. You say that you were due to go on two weeks from - which would have started on Saturday, 20 December. Is that correct?‑‑‑Sorry, are we referring to my proposed leave as I was still an employee?

PN47

Yes, correct?‑‑‑Yes, I was due to take two weeks' annual leave approximately a week before the decision of Metro Trains of the 12th. So that's correct, yes, I was due to take leave.

*** STEPHEN CARL WINTLE XN

PN48

I just want to try and get the timing correct here?‑‑‑Yes.

PN49

Before 12 December, you had applied for annual leave. Is that correct?‑‑‑That's correct.

PN50

Your annual leave had been approved?‑‑‑It had been approved verbally with my supervisor.

PN51

So your supervisor had said that would be okay and the annual leave would have started just before Christmas. Is that correct?‑‑‑That's correct.

PN52

Christmas last year, on my memory, was on the Wednesday?‑‑‑It was actually - Christmas Day fell on the Thursday, I believe. No? Was it?

PN53

Yes, maybe. You might be right?‑‑‑It was across the two days.

PN54

Anyway, let's say it was on the Thursday for a moment. When were you going to start annual leave?‑‑‑I'd have technically been on annual leave from the Friday that preceded the Christmas.

PN55

So 20 December?‑‑‑So my last day of work would have probably been 17 or 18 December.

PN56

From the end of your shift on Friday?‑‑‑Yes.

PN57

Was the fact that you were planning to take that annual leave - did that prevent you from making an application prior to that day or after that day?‑‑‑For the purposes of applying for the general protections.

PN58

That's correct. I understand - - -?‑‑‑Yes.

PN59

- - - the issue you've raised about the fact that you were planning to take annual leave. I'm just trying to understand, did that prevent you from making an application?‑‑‑Maybe I should qualify that comment in my submission.

*** STEPHEN CARL WINTLE XN

PN60

Yes?‑‑‑The reason I included that comment in my submission was the timing of the decision given by Metro on 12 December and the actual up and coming annual leave that I was due to be taking as an employee. It seemed to me that Metro could have delayed their decision for another week, which would actually give another three weeks to come at a reasonable outcome.

PN61

All right?‑‑‑My submission was that they delivered that outcome without due diligence to those dates coming up and forced a situation upon me.

PN62

Thank you. I understand now why - - -?‑‑‑It wasn't anything to do with submission of an application.

PN63

I understand that now. Thank you for that, Mr Wintle. I now just want to turn to the issue of the relationship you had with the lawyers and you've given some detail about that in your submission. You then go on to say that you were unhappy with the conduct of the lawyers inasmuch as -

PN64

the lawyers have failed to understand the main merits of the case and utilise this in the production of the application for general protections. The lawyer appeared to be calling from home by the use of a mobile number and the applicant suspects that the lawyers have become disinterested in the case due in part to the complexity of the material provided.

PN65

On 1 January 2015, the applicant disengaged the lawyers due to the lawyers' poor attendance upon the case, their inability to understand and promote the merits of the case going forward and their failure to act upon the instructions as given by the applicant's email response on 24 December 2014.

PN66

Is that a correct summary of what happened in respect of you ceasing to utilise the lawyers?‑‑‑That's pretty much a good summarisation of what took place.

PN67

Did the lawyers at any time raise with you the issue of the 21‑day time period for the making of an application?‑‑‑No, Commissioner. I did make the lawyers aware by forwarding termination emails and termination letters to the lawyers, and I must admit I indicated my belief on the final day for submission as the 5th. They clearly didn't check it out or look it up or confirm it, because they never addressed that issue in any correspondence that was ever to come back to me.

*** STEPHEN CARL WINTLE XN

PN68

What was the extent of their response? Obviously your evidence is that you provided them with quite a lot of material, but what did they provide you with?‑‑‑They emailed me a letter at approximately 3.30, 4 o'clock on 24 December, outlining their views of the case. I'd already instructed them at the beginning of the week, on the 22nd, that I wished to proceed, but they seemed to chop the whole process up with this - "Give us some evidence. Submit some evidence and we'll move forward from there," but I was substantially engaged with them by payment. For all intents and purposes, I'd engaged them to represent me from start to finish.

PN69

So would it be fair to say that you told them you wanted to proceed and they, in response, asked you for some further evidence?‑‑‑No. After the letter on the 24th that arrived to me via email, I replied - and I have a copy of the email, although I have not officially submitted it as evidence because I didn't really want to upset the commission by filing quantities of material at a late date, so hence only the small amount of material that was filed yesterday.

PN70

Yes?‑‑‑But I have a copy of an email that instructs the lawyers to proceed for me, if the commission would like to view a copy of that.

PN71

I don't think that's in dispute, the fact that you might have asked the lawyers to proceed. I don't think that's in dispute, because it's not really relevant in the end because you didn't proceed with them, so I don't think that's challenged. The issue I was just trying to get clear is you told them you wanted to proceed. What you seemed to say a little earlier was that their response to that was to ask you for some further evidence?‑‑‑No, that's incorrect.

PN72

That's incorrect. So what was the nature of their response?‑‑‑Actually the lawyers - my last conversation with the lawyers on 1 January, which is indicated in my evidence, was a call that - they called me. It was initiated by me leaving a telephone message at their head office on the 31st. They actually refused any further evidence. Clearly the guy wasn't in the workplace.

PN73

Sorry, they "refute" or - - -?‑‑‑Yes, they refused. I said, "Look, you haven't" - the conversation went as, "Where is my application? You know, the date is looming." They hadn't processed an application or constructed any documentation whatsoever. I said, "Look, you don't seem to have got the juxed(sic) of the case and, you know, applied it in the letter that you sent me on the 24th. I'll send you some more material." They said, "Look, don't send us any more material."

PN74

Yes?‑‑‑The process of that conversation and what they were saying to me, the fact that they hadn't processed or even made a start on my application, it was clear that they had applied themselves pretty poorly to my case.

*** STEPHEN CARL WINTLE XN

PN75

You've also provided some evidence last night that there was a power outage at your house from approximately 5.30 pm on 1 January until approximately 1 pm on 2 January. That's correct, isn't it?‑‑‑That's sort of correct. Although power was restored to overhead supplies in the street at approximately 1 o'clock on the afternoon of the 2nd, it took some considerable time before individual crews attended my premises and reinstated the power to each premises in turn. It wasn't that power was restored to all premises en masse, because service fuses had been removed by the power companies for the protection of themselves and of course us as consumers. It actually took another two to three hours for them to actually attend (street supplied) and restore power, although United Energy were not able to document that as individual timings weren't particularly documented.

PN76

You're saying that it probably wasn't until about 3.30 pm on the 2nd that the power was actually restored to your house. Is that - - -?‑‑‑I'd say at 3.30, 4 o'clock.

PN77

Were you trying to lodge an application to the Fair Work Commission during the period from the evening of 1 January until 3.30 or 4 o'clock on 2 January?‑‑‑No, your Honour. The relationship with the lawyers had ceased around midday or just after midday on the 1st, which launched me into creating my own application which I worked on up until dinnertime that evening and then the power went out, and that was the end of any work upon the documentation, because it was all contained on my PC in my study. I was unable to revisit that document until later on in the afternoon of the 2nd.

PN78

You're saying you were working on the application on the afternoon of 1 January?‑‑‑Yes, that's correct.

PN79

Then you worked further on it on the afternoon of 2 January. Is that what you're saying?‑‑‑Yes, that's correct.

PN80

Can you explain the period you were working on the application on 2 January?‑‑‑Pretty much as soon as power was restored, Commissioner. I worked very late that afternoon to get it completed.

PN81

So you completed the application on 2 January?‑‑‑Not really. It was probably 70 or 80 per cent complete. I think you'll probably find that the document was a very well‑structured document and it had taken some considerable time to reference the Acts and give thorough detail of my complaint, and it did take some considerable time to create that document.

PN82

What was your understanding about the question of the time period for lodging the application?‑‑‑Okay. Well, the time period indicates 21 days. There was nothing in any of the Acts or the documentation that I referenced in attaining the 21‑day period that indicated calendar days or otherwise.

*** STEPHEN CARL WINTLE XN

PN83

No, I'm asking you - so perhaps let's take it back. When did you first consider making a general protections application? When did that first arise for you?‑‑‑Pretty much on the first day of the following week. I knew I wasn't going to accept the decision of Metro.

PN84

So the Metro decision, which was the warning decision which was the 12th - so the warning on the 12th?‑‑‑That's correct.

PN85

You said you weren't going to accept that decision?‑‑‑No.

PN86

So you decided that, okay. So then when did you first start thinking about a general protections application?‑‑‑Well, I first visited it on Monday, the 15th. I intended to research it and things like that, but I was immediately bombarded by a defamation claim from the ETU, which is regarding the union convenor that was involved in the case from August. Metro had leaked a document to the union convenor in which they sought to file a notice of concerns against me on the 15th, so I was pretty much tied up that day dealing with this defamation claim made against me.

PN87

So you first considered the issue of general protections on Monday, 15 December?‑‑‑That's correct.

PN88

When did you first consider the issue of the time period for making the application?‑‑‑I think that probably occurred maybe around the 17th, because, the 16th, I was tied up with a conference involving my "stop bullying" application and I still had to make a response for the defamation claims filed against me by the ETU. So Monday, the 15th, and Tuesday, the 16th, were pretty much tied up with dealing with those issues that had been forced upon me by the company and by the ETU, so I first addressed the general protections or the unfair dismissal on the 17th. I think I remember calling somebody like Job Watch, which is a free organisation that gives you advice by telephone. They instructed me to check out some documentation they had got and so I did that.

PN89

When you say you spoke to Job Watch and you checked out some documents on the 17th - - -?‑‑‑That's correct.

PN90

So that made you think that you might be able to lodge a general protections claim. Is that what - - -?‑‑‑Yes, that's correct.

PN91

Were you aware at that time of the time constraints?‑‑‑Only when I'd visited the documentation that Job Watch had suggested.

*** STEPHEN CARL WINTLE XN

PN92

So it would be fair to say, would it, that on 17 December you checked out the documentation and part of that documentation told you about the 21‑day time limit?‑‑‑It stated 21 days. It didn't reference calendar days or any other calculation method, but the 21 days was indicated that day, yes.

PN93

You're saying you were aware from 17 December of the 21‑day limit, but you weren't clear on exactly how to calculate that?‑‑‑That's correct.

PN94

Did you do some sort of calculation?‑‑‑It was very early, Commissioner. On that day I'd used the LOV online referral service - the Law Institute of Victoria referral service - to point me to a lawyer that dealt with employment law and I printed off a voucher that would give me an interview with a local firm, which happened to be Goodman's, which were the people that I was to engage.

PN95

Yes?‑‑‑I called them on the 17th. I spoke to a paralegal, which was a pretty lengthy call - some 30 or 40 minutes - and instructed them on the merits of my case. She took notes. She informed me that she was going to pass it by the lawyers and they would call me back, and we would proceed from there. So I've actively engaged with the lawyer as of the 17th, although no legal information or any instructions were passed at that point.

PN96

That's all I wanted to ask you about the issue of the reasons for the delay. I don't want to ask you anything about action taken to dispute the dismissal - or the alleged dismissal - apart from wanting to ask you about this: that is, you've given quite a bit of evidence about what you did to dispute - if I go to your form W1, you list on point 17 of your material five matters that you did to - under the heading of 3662(b), which is action taken to dispute the dismissal, right, so you've got five matters there. Are they the five ways in which you say you took action to dispute the alleged dismissal?‑‑‑That's probably not the whole - it's probably what I could think of at the time. I'm sure I proclaimed my innocence from day one, Commissioner, but that is what I wrote, yes.

PN97

I just want to try and sort of distinguish some of those matters, right? I think it's fairly obvious that you disputed the investigation or you were unhappy with the investigation process conducted by Metro and the outcome of the investigation process. I understand that, but the warning letter, right - so the final warning letter - was not a dismissal letter, was it?‑‑‑I'm not going to agree with you there, your Honour. I think it contained stipulations and measures that would see me ultimately be dismissed for failure to attain those stipulation clauses that they'd placed within that letter.

PN98

But, on its face, the letter simply says - - -?‑‑‑Final written warning.

*** STEPHEN CARL WINTLE XN

PN99

- - - it's a final written warning?‑‑‑Yes.

PN100

It says you're expected in the future to abide by Metro policies and procedures, and that you're relocated. That's essentially what it does, doesn't it?‑‑‑It gives other stipulations. They called me dishonest. They told me I've got to improve my performance, where I've never had a performance‑related issue with the company.

PN101

I'm sorry, but if you look at that document by itself, it's a warning letter and requires, in terms of the future, two things. One is relocation and the other is compliance with certain policies and procedures?‑‑‑And performance improvement.

PN102

Isn't that compliance with - - -?‑‑‑That's three.

PN103

Well, all right - and improvement in performance. That's essentially what it says, isn't it?‑‑‑It says a lot of things in there. It accuses me of being dishonest, of being aggressive, of threatening people, but that's - - -

PN104

In terms of - - -?‑‑‑If you want to sum it up in a nutshell, yes, but it does include - it's two pages long.

PN105

Yes, I understand that, but in terms of its action, right, what does that letter actually do? It provides you with a warning and says you'll be relocated, doesn't it?‑‑‑It does, yes.

PN106

So contesting what is said in that letter is not contesting your dismissal, is it?‑‑‑Contesting what is in the letter? Well, of course it is, because the relocation would have had a dismissal effect, Commissioner. I explained this at the time with the HR representative behind me who delivered that letter and they said, "It's not up for discussion. This is what's going to happen and you have to accept it." This was after they'd conducted an investigation where my evidence submitted had been tossed to one side and said, "We're going to address that later."

PN107

But your rosters didn't require you to start before the first train every morning, did they?‑‑‑No, just once - every three weeks. It was a cyclical - - -

PN108

So you'd have an early morning start on your roster every three weeks. Is that correct?‑‑‑Yes, that's correct.

*** STEPHEN CARL WINTLE XN

PN109

Conceivably you could have taken a taxi to start work for the first week that you were on early starts and while you were engaged in some process to challenge the decision of Metro?‑‑‑Metro had said to me on the day of the 12th that, "We're not going to address it. The decision is made. You will be at East Malvern on Monday."

PN110

Yes, I understand that?‑‑‑They gave me no rights of challenge, Commissioner.

PN111

I'm not suggesting they left you with any rights of challenge, Mr Wintle, but you've challenged in the past the actions of your employer. I'm not critical of you doing so?‑‑‑Sorry, can you - - -

PN112

You're a person who has challenged the employer's decisions previously, aren't you, so - - -?‑‑‑Could you qualify that, Commissioner, please?

PN113

Yes?‑‑‑I don't understand what you mean by that.

PN114

I mean you've had disputes with the employer previously about their actions. Don't get me wrong, it's totally your right to do so and totally appropriate?‑‑‑So it shouldn't be raised within the court today, with respect to the Commissioner, because I think you might be precluding to the fact that Metro Trains were taking one and a half per cent from my wages when they were clearly not allowed to do that, and the Commissioner in the Fair Work Commission agreed with that. If that's what you're intimating - - -

PN115

I'm not referring to anything in particular. I'm just saying I'm aware that you lodged a bullying complaint and also that you lodged, earlier last year, a section 739 dispute. You're perfectly entitled to do so and I'm not in any way raising any criticisms, but I'm just saying that clearly shows you were capable and you had previously challenged the decisions of your employer. Isn't that correct?‑‑‑I think that when the decisions are wrong, I think that's my right.

PN116

I agree entirely?‑‑‑So, yes, you're right, I challenged the decisions because they were unsanctioned by the Fair Work offices.

*** STEPHEN CARL WINTLE XN

PN117

But the point I'm making, Mr Wintle, is there had been previous occasions when the employer had said, "This is our decision," and you had - and again I want to emphasise without any criticism or judgment here - challenged those decisions. That had happened before, hadn't it?‑‑‑You say decisions. I mean, we've just spoken about the fact that the company were taking one and a half per cent from my wages when they're only entitled to take 1 per cent, but I don't - what is the other decision that you refer to, Commissioner? I don't understand.

PN118

For example, you challenged what you alleged was bullying behaviour?‑‑‑Well, that's my right and it doesn't - shouldn't - - -

PN119

I didn't say it wasn't your right. In fact I'm saying it is your right?‑‑‑Sorry, Commissioner, if I've sounded argumentative, but I just don't see what the relevance to the case today is.

PN120

The relevance to the case today is simply this - and that's why I'm putting it to you, to give you the opportunity to respond, right? You received a warning letter and a relocation. What I'm putting to you is that it was possible - I'm not saying you necessarily should have done this. I'm just saying it was possible - that in the face of that decision by Metro, you could have continued to work. You could have made some adjustments for a period of time, which might have been inconvenient to you - for example, using a taxi - whilst you proceeded to take what action you thought was appropriate to challenge decisions of Metro?‑‑‑Well, any other challenge that has occurred within Metro has been hushed up by the HR department or shut down or closed down immediately. It's only when I've taken this into the open forum or the more external investigative form of the Fair Work Commission, that anything has ever been achieved. I've complained about bullying on a previous occasion. Metro did nothing. They ignored it totally.

PN121

Let's use that example and I won't press this further, but you had a bullying complaint that you had made. If you had still been in employment, that bullying complaint would have been able to proceed to have been dealt with in the Fair Work Commission, wouldn't it?‑‑‑The bullying was - on a previous occasion, I complained about bullying to Metro. I complained to Richard Craze at the HR department. He shut it down completely. He did nothing. I complained about being exposed to asbestos. That was shut down. Nothing occurred. The findings of that was the next day the person that exposed me to asbestos was on an asbestos awareness course. The Metro's HR were acting in an unfair manner pretty much all the time. I've had a visitation from a senior supervisor, elicited by Melissa Hogan here, to come and word me up, for want of a better phrase, Commissioner, to shut me down. If they've got a legitimate complaint, why didn't they call me in front of HR and speak to me about it?

PN122

All right. That's not what we're dealing with today, but I understand your answer. Can we just go back to paragraph 17 then?‑‑‑Yes.

PN123

So (a) is:

*** STEPHEN CARL WINTLE XN

PN124

Issued the originator of the final written warning with a notice of concerns letter as per the Defamation Act.

PN125

When did you do that?‑‑‑I issued that notice of concerns a fortnight last Friday, so let's try and calculate the days. Last Friday was - what were we, 18, 19, 20, so I probably issued that on - - -

PN126

After you made this application?‑‑‑Yes.

PN127

Then it's not relevant to that, is it? So (b):

PN128

Refuted the findings of Metro's in-house investigation.

PN129

When did you refute the findings? Obviously you've given evidence that you did refute those finding at the meeting when you were given the warning letter. I understand that. Subsequent to that, so subsequent to the warning letter, when did you refute the findings?‑‑‑I refuted it at the meeting of the 21st of - where are we - 21 November, which was a period where I was - - -

PN130

No, my question was - - -?‑‑‑Yes, I'm telling you - - -

PN131

- - - after 12 December?‑‑‑Sorry.

PN132

So between 12 December and 5 January, did you refute the findings? Did you raise that issue with Metro?‑‑‑I was no longer an employee. They had accepted my resignation email. I was no longer an email.

PN133

No. Don't get me wrong, these questions are not questioning or being critical of your behaviour, Mr Wintle. I'm dealing with the heading in the legislation which says, "The action taken to dispute the dismissal"?‑‑‑Yes.

PN134

You allege it was a dismissal, so the action has to be action - - -?‑‑‑Well, this application in itself is an action.

*** STEPHEN CARL WINTLE XN

PN135

I understand that, that this application is an action. I understand that. I understand the issues about you contacting the lawyers and all that, and I'm going to take all that into account. I'm just trying to deal with the matters that you've raised in this paragraph to see whether they do in fact fall under that heading, right?‑‑‑Okay.

PN136

I'm not being critical. I understand, in respect of (b), that action occurred on 12 December and prior to that. In (c), the offer to remain on unpaid leave, that was an offer that you made at the meeting of 12 December or before?‑‑‑That's correct.

PN137

And (d), the reports to the independent regulatory body, was that about the warning letter or was that about things that might have led to that? I'm not quite sure. In any case, when was that report?‑‑‑That was probably after the 12th. It would have been after the 12th.

PN138

Was that report about your alleged dismissal?‑‑‑It was a report that I filed - and I can't really speak about it because it's still privy to an investigation, but it was a report filed that showed that the HR department within Metro didn't always act in good faith.

PN139

I don't think that (e) is really relevant to this matter, is it?‑‑‑Well, it's in the context of bullying and bullying takes place in different ways. When you're bullying has a safety implication, then I think it was the divine right of the O and RSO, whatever that organisation is called, to be privy to that information.

PN140

So when did you make that report?‑‑‑That was after the 12th.

PN141

I don't want to ask anything about prejudice to Metro. I don't want to ask anything further about the merits of the case. I think I've already asked the question I need to about that. I don't want to ask any question about fairness between yourself and other like persons. That's all the questions that I've got. I just want to emphasise that, you know, in making your evidence, you've made a number of statements that relate to the things that led to the warning on the 12th and the investigation. Prior to that, I'm not going to make any judgment about those matters, so I don't think it's necessary, Ms Hogan, to question about the details of those matters because I don't think they're particularly directly relevant to that. I'm not going to accept one way or another that evidence, because I think otherwise we'd be here all day, because I understand Metro obviously doesn't accept in any way the truth of those matters. It's totally a matter for you, Ms Hogan, if you want to ask any questions, but I just wanted to assure you that you shouldn't feel that it's necessary to delve into the detail of the allegations and the investigation. Are there any issues that you want to raise at this point?

*** STEPHEN CARL WINTLE XN

PN142

MS HOGAN: I have no questions for Mr Wintle, if that's what you're asking, Commissioner.

PN143

THE COMMISSIONER: Yes.

PN144

MS HOGAN: No, thank you.

PN145

THE COMMISSIONER: All right. Mr Wintle, is there anything that, I suppose, you wanted to say in evidence that I didn't give you the opportunity to do?‑‑‑To be perfectly honest, Commissioner, I think we didn't speak about the 21‑day period and the method of calculation.

PN146

Yes, but that's not a matter of evidence. That's submission. It's a matter of fact. The 21‑day issue is a matter of fact and I understand we can have a submission about how the calculation should be done, et cetera, but that's not evidence. That's submission and I'll give you the opportunity to do that. We will deal with that matter, but I'm just saying it's not an evidentiary matter. Do you understand the difference?‑‑‑Yes, I understand.

PN147

Is there anything else in evidence that you wanted to raise?‑‑‑Only the documentation I've relied on. No, I don't think so.

PN148

All right. Thank you, Mr Wintle, for your evidence.

<THE WITNESS WITHDREW [10.00 AM]

PN149

THE COMMISSIONER: Now we're just going to turn to the issue of submission. We don't need to repeat the material that the parties have put in writing. Obviously I've had regard to and I've read everything that you've said, Mr Wintle. I've obviously read what Metro have had to say, as well. I don't think there's any issue - as I explained earlier - about the fact that the 21st day after 12 December, not counting 12 December, is Friday, 2 January.

PN150

Mr Wintle has submitted that he should be able to lodge the application the day after - the 21st day after, which Mr Wintle is quite correct. If that were the case, then it would be the 5th, because the weekend days wouldn't count in that circumstance, but Mr Wintle is just not correct about that. The legislative position, I think, is quite clear that the application had to be made at some stage on Friday, 2 January.

PN151

It could have been made at any stage during Friday, 2 January, that's true. It could have been made by email at midnight or one minute to midnight on that day, but it had to be made on 2 January.

PN152

MR WINTLE: Can I interject, Commissioner?

PN153

THE COMMISSIONER: Yes.

PN154

MR WINTLE: You speak of, like, a 21‑day period. You're saying I could have submitted earlier, but I couldn't submit on the first day of the calculation period and I couldn't submit on the second day of the calculation period because it falls on a Saturday and Sunday.

PN155

THE COMMISSIONER: That's irrelevant.

PN156

MR WINTLE: It might be irrelevant, but the way that it's calculated is ambiguous. It's not clear. It's not referenced in any document that's available to me. The 21 days - to complete a full cycle of 21 days - I guess we're all using a clock and for 21 days to be completed on a clock, the clock would have to tick into the Saturday. Because the day of the start of the calculation is the Saturday, the clock has to indicate a time period within Saturday, even if it's one second within Saturday. It's a complete 21 full cycle, 21 full days. It has to click again back into the Saturday.

PN157

THE COMMISSIONER: Mr Wintle, I have considered your submissions about it and it's absolutely crystal clear in all the decisions of the Fair Work Commission about this matter that the 21st day is Friday, 2 January. I just don't think there's any argument about that. I've considered your submissions and there's really no point in pursing that matter further.

PN158

The issue is the application was late. It wasn't very late. It was only a very short period of time late, but it was late and so I need, therefore, to look at whether there are exceptional circumstances justifying an extension of time. You've put forward a number of arguments about why you believe there are exceptional circumstances, so that's the approach I'm going to take to this matter.

PN159

Having made that point clear and having indicated that I have read carefully all the submissions that you've made, and heard what you've said today, are there any other points of submission that you want me to consider?

PN160

MR WINTLE: Well, only going back to the calendar days and I think the Commissioner has spoken that you don't want to address it.

PN161

THE COMMISSIONER: It's not that I don't want to address it. It's just that it has been determined. You may have a view about it, but it has been determined. You can't find any decision of the Fair Work Commission, I don't believe, that says we should do anything other than calculate it in the manner in which I have described.

PN162

MR WINTLE: I think calendar days forms an unfair term inasmuch as it's not transparent. It's not readily indicated with any of the Acts. To rely on a thing that's not transparent and clear to everybody is unfair, but - - -

PN163

THE COMMISSIONER: It's the law, so there's no point in you making a further submission about it. It's the law. It's the way that it operates. You might not like it, but that's the way it is. As I said, I was giving you an opportunity to raise anything else that you wanted to raise that you hadn't raised in your written submission or any other point that you want to raise after having given your evidence, but I don't want to hear further about the issue of how I calculate the 21 days.

PN164

MR WINTLE: Sorry, are you waiting for a response?

PN165

THE COMMISSIONER: Yes.

PN166

MR WINTLE: No, I've nothing further to say, Commissioner.

PN167

THE COMMISSIONER: Okay. Thank you, Mr Wintle. Ms Hogan?

PN168

MS HOGAN: Yes. Thank you, Commissioner. Metro's case is set out in our outline of submissions and I won't go into that. I might address just a couple of points in relation to the additional evidence that was submitted by Mr Wintle yesterday, the first being that in accordance with the orders issued by the commission, Mr Wintle was required to submit an outline of his submissions and evidence by 17 February and obviously hasn't met that requirement.

PN169

That aside, just in relation to the letter that Mr Wintle attaches from United Energy, in the absence of explanation, I assume it is supporting evidence to say why he was unable to make an application by Friday, 2 January. We say if that was his intent, there was still an opportunity to potentially lodge an application following the restoration of that power.

PN170

We ask if it was his intention to lodge on that day and due to the power outage he was going to be unable to do so, what steps did he take to notify the commission that his application may have been late? However, apart from that, it seems to be inconsistent if you take that view with his own evidence that he intended to lodge the application on Monday, the 5th, so I don't really think that it's relevant in terms of the matter that we're dealing with today.

PN171

Just a comment I think in relation to the case reference made by Mr Wintle - I think it was <i>Clark v Ringwood Hospital</i> (1997). I didn't actually receive this material until about 7.30 last night, so I haven't had an opportunity to review that and in lieu of any explanation provided by Mr Wintle as to why it may be relevant, I can't make any comments on that.

PN172

THE COMMISSIONER: Yes. Mr Wintle - sorry, Ms Hogan, I'll just interrupt you there for a moment to give Mr Wintle an opportunity there. Mr Wintle, what does this case, Clark v Ringwood Hospital, say?

PN173

MR WINTLE: Okay. There's just a few passages in the documentation from that case that I just wanted to address.

PN174

THE COMMISSIONER: It's 1997, so it's obviously under earlier legislation, but it's about extension of time? Is that correct?

PN175

MR WINTLE: If I can find it, it's just regarding the reasonable steps taken by an applicant in submitting an application and other areas of representative error that contributed to a late application. There's just a few passages - - -

PN176

THE COMMISSIONER: Why don't you take us to what you want to about this.

PN177

MR WINTLE: I don't know if you've got a copy of it. On page 5 - - -

PN178

THE COMMISSIONER: No, we haven't got copies of it.

PN179

MR WINTLE: I referenced it in the submission last night, but I didn't have the time or the resources to get copies.

PN180

THE COMMISSIONER: That's fine. If you want to tell us what it is in this decision that - - -

PN181

MR WINTLE: Yes. I'd like to point out a couple of lines within that decision. It says in the case:

PN182

The effect of the representative error is an important consideration in deciding whether or not to exercise discretion.

PN183

It goes on to say that:

PN184

Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an applicant for relief - for an application to be lodged.

PN185

THE COMMISSIONER: I agree with that. That's not controversial. Where was the representative error in this case?

PN186

MR WINTLE: The error was in their inaction to act upon an instruction on 24 December, where I clearly state I wish to proceed - - -

PN187

THE COMMISSIONER: Hang on. Sorry. You see, when they talk about representative error, if, for example, you've hired a lawyer and the lawyer says to you, "You've got 21 working days in which to lodge the application," well, that would be a clear representative error that has got some relevance to an extension of time matter. What you're saying in this case is the lawyers didn't - you wanted them to lodge the application and prepare the application, and they were tardy in doing so, right? That's what you're saying happened in this case. How is that an error that affects your lodgement of the application on time?

PN188

MR WINTLE: I clearly lost a week to eight days with the lawyers dilly-dallying around doing nothing, which contributed to the telephone calls of 1 January. They haven't started or proceeded to prepare a lodgement for me.

PN189

THE COMMISSIONER: You see, you thought you had until 5 January, didn't you? That's your submission. You thought that you had until 5 January to lodge your application.

PN190

MR WINTLE: That's exactly right, just as the lawyer in the Paglia v Chevron case - - -

PN191

THE COMMISSIONER: Yes, but that's the lawyer. That's the representative. You thought that you had until 5 January, didn't you?

PN192

MR WINTLE: Since I've become my own representative, the representative error and the exercise of discretion in representative error should be passed on to the person that's making representation. It was a cumulative effect of the inaction of my lawyers, which I've lodged a case with the Legal Services Commissioner because of their poor attendance on the case.

PN193

THE COMMISSIONER: All right. Thank you. That's the paragraph from Clark v Ringwood that you wanted us to be aware of?

PN194

MR WINTLE: I just wanted to maybe visit another sentence.

PN195

THE COMMISSIONER: Yes.

PN196

MR WINTLE: Where it says:

PN197

The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. It would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his or her representative and took no steps to inquire as to the status of his or her claim -

PN198

which is clearly not what happened with me. I attempted to contact the lawyers on the 31st. I did engage the lawyers on the 1st and, because of their inaction, I took action to put things right.

PN199

THE COMMISSIONER: Thank you. Ms Hogan, anything further?

PN200

MS HOGAN: No, Commissioner. I think we rely on our outline of submissions in this matter.

PN201

THE COMMISSIONER: Mr Wintle, is there anything further you want to raise?

PN202

MR WINTLE: Maybe with reference to the document from United Energy. As rightly said, my perception of time was that the 5th was the last day for submitting that because of the weekend, because I believe that we'd stepped into the weekend on the calculation of 21 days. I did wish to include that, but I've got no documentary evidence.

PN203

I tried to contact the commission on the 24th to clarify the last moment in which I could submit, but there was no reply from the commission and the people attending the telephone lines refused to give me an indication of what would be a final hour or when I could last supply some information, because I was taking legal advice that evening.

PN204

THE COMMISSIONER: This is about you lodging the letter from the Energy Commission yesterday rather than earlier. Is that the point you're raising?

PN205

MR WINTLE: That's exactly right, Commissioner. I didn't have that letter at the time and although that - - -

PN206

THE COMMISSIONER: I hear what Ms Hogan says about the fact that that was late, but I've already decided to admit that evidence, so I'm prepared to accept that evidence.

PN207

MR WINTLE: Thank you, Commissioner.

PN208

THE COMMISSIONER: Despite the fact that it was late. That's not going to adversely affect your case. Anything else?

PN209

MR WINTLE: No, Commissioner

PN210

THE COMMISSIONER: I'm going to consider the matters that have been raised and I'll publish a decision in respect of this matter shortly. We'll adjourn at this point.

ADJOURNED INDEFINITELY [10.16 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 SUBMISSION OF APPLICANT SUPPLIED 17/02/2015......... PN5

EXHIBIT #W2 FURTHER DOCUMENTATION SUPPLIED BY APPLICANT ON 26/02/2015 PN6

EXHIBIT #M1 SUBMISSION OF RESPONDENT SUPPLIED 20/02/2015..... PN7

STEPHEN CARL WINTLE, AFFIRMED.......................................................... PN38

EXAMINATION-IN-CHIEF................................................................................. PN38

THE WITNESS WITHDREW............................................................................ PN148

Fair Work Commission Transcripts

C2015/1023, Transcript of Proceedings [2015] FWCTrans 162 (25 March 2015)