C2015/1941, Transcript of Proceedings [2015] FWCTrans 168 (25 March 2015)

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PN1

THE VICE PRESIDENT: Thank you. This is an application for a stay. I'm just checking who’s on the phone. Mr King, are you there?

PN2

MR KING: Yes, I am.

PN3

THE VICE PRESIDENT: And who is there for the respondent?

PN4

MR FLETCHER: Mr Fletcher and Mr (inaudible).

PN5

THE VICE PRESIDENT: Sorry, we seem to have some audio feedback here, but I'll just go through that again. Mr Fletcher, who’s with you?

PN6

MR FLETCHER: Mr Stutley from my office. Thank you – our office.

PN7

THE VICE PRESIDENT: Thank you. I don't know why we’re getting this ringing in the background.

PN8

MR FLETCHER: I don't think we have Mr Burton.

PN9

THE ASSOCIATE: Yes, that must be why.

PN10

THE COURT OFFICER: It appears that Mr Burton has dropped off. Do you want me ‑ ‑ ‑

PN11

MR BURTON: No, I'm here. I’ve got you.

PN12

THE VICE PRESIDENT: All right. We have everybody present then. This is an application for a stay in relation to whether or not there should be legal representation in relation to a hearing which will occur next week. So the parties are clear, whatever I decide today, the matter will be proceeding on 10 and 11 March 2015. Do you understand that, Mr King?

PN13

MR KING: Yes, I do.

PN14

THE VICE PRESIDENT: And from the respondents’ perspective, do you understand that is what is going to happen today?

PN15

MR FLETCHER: That's my understanding, yes.

PN16

THE VICE PRESIDENT: So, regardless of my decision, and I will make a decision at the end of this one way or the other, I'll publish my reasons subsequently.

PN17

Mr King, I’ve had the opportunity to read the material that has been filed. In addition to that, Mr King, I’ve also had the opportunity to read the unfair dismissal application itself which is before the Commission.

PN18

MR KING: Yes.

PN19

THE VICE PRESIDENT: So, Mr King, are there matters beyond what I’ve got that you would like to verbally address to enable me to consider this matter?

PN20

MR KING: Well, I actually object to the K & L Gates paid lawyers being present today.

PN21

THE VICE PRESIDENT: Yes, I understand that, Mr King, but for ‑ ‑ ‑

PN22

MR KING: I think that’s unfair and ‑ ‑ ‑

PN23

THE VICE PRESIDENT: ‑ ‑ ‑ the purposes of today on this hearing I am going to allow them to make submissions. It’s only for the purposes of today, I should say, and then I'll decide the matter of the hearing itself.

PN24

MR KING: Right.

PN25

THE VICE PRESIDENT: But in relation to your application, which is an appeal against a decision of Commissioner Williams, you’ve put on comprehensive material before him and I’ve read that material and I’ve also read, as I say, your unfair dismissal and application. So it is clear to me there’s enough material on there, but the purposes of today is an opportunity to add anything verbally you want to add.

PN26

MR KING: Well, I think it’s covered it quite comprehensively, as you've said. I maintain – I mean, obviously I’ve put the appeal in. I don't know where that’s going, but it’s been submitted. Yes, I'm just, you know - pretty much the application states about it being grossly unfair. I think it’s lopsided as far as the balance there and the public interest and the fact that I believe that Mr Burton, being a hands-on manager, adduced most of the documents that are in evidence.

PN27

He was the hands on day‑to‑day running of it and he’s far better educated than me and more highly conditioned in the food chain and the employment and is more than capable of, you know, stating his case. It would be far more efficient, as I was there, to tell my story and Mr Burton to answer it rather than the third party that wasn't there that will have to stop and ask, “Well, you know what happened to the thing?” Mr Burton is more than capable and qualified for answering any queries that come up after the telling of my story.

PN28

THE VICE PRESIDENT: Thank you, Mr King. So that you're clear, Mr King, if I were to find in your favour, and I'll hear what the respondents say in a moment, it does not follow that Mr Burton will necessarily be the person who will be running the case for the respondent. It can be anybody from the respondent who’s employed by the respondent.

PN29

MR KING: Okay.

PN30

THE VICE PRESIDENT: So you understand that?

PN31

MR KING: Okay. Well, they’ll obviously need somebody who knows the way ‑ ‑ ‑

PN32

THE VICE PRESIDENT: Yes, I understand that. But what I'm saying to you, it doesn't mean of necessity that it is the people involved in the termination that becomes the person who’s the advocate for the employer.

PN33

MR KING: Yes. I mean, as far as balance and fairness goes and the public interest, I just see as long as it’s a layman like myself, it’s not someone who has a legal degree that is being - you know, to bamboozle with – and not know what’s happening in the proceedings, you know, because I'm not legally trained. I have no idea. I just know the events that happened to me leading up to my dismissal and my total employment experience that I had. I just wish to tell my story. That's all I'm going to do; see what happens. They can respond and then the Commission make a decision on that. All I'm asking ‑ ‑ ‑

PN34

THE VICE PRESIDENT: Yes, I understand your position, Mr King. You're simply putting it. The way you see it it’s a factual investigation one way or the other.

PN35

MR KING: Yes.

PN36

THE VICE PRESIDENT: Yes, I understand that.

PN37

Mr Fletcher, are you proposing to speak on behalf of the respondent or is somebody else going to speak on behalf of the respondent?

PN38

MR FLETCHER: With leave, yes, I will.

PN39

THE VICE PRESIDENT: Yes. Tell me why you say that this appeal should not be granted on this occasion.

PN40

MR FLETCHER: The appeal or the stay?

PN41

THE VICE PRESIDENT: The stay, which effectively removes the appeal. Because as soon as I form a view one way or the other, that’s the end of this matter.

PN42

MR FLETCHER: I understand. And that’s the exact reason why we say you shouldn't order the stay because if you order the stay, you'll be granting the applicant the relief that he’s looking for, in other words proceedings. So you've indicated to us that a hearing will proceed next week. That's your understanding of where things sit and you've also made it clear that if you order the stay, the effect of the stay will be that our client will not be represented next week and our submission is that that prematurely gives the applicant the relief that he’s looking for before the applicant has been made to go through the necessary process to have the appeal heard and determined.

PN43

The appeal has to be heard by a Full Bench and it has to be heard by a Full Bench upon the granting of leave. The test for you in deciding whether to grant the stay is that there must be an arguable case for the granting of permission to appeal and we would say that there’s a question mark about whether there’s an arguable case in relation to the granting of permission to appeal.

PN44

You also need to be satisfied that there’s an arguable case to support the appeal itself and we would say on the merits and the exercise of the discretion by Commissioner Williams was perfectly reasonable and that he hasn't strayed so far from his discretion that the Full Bench ought to intervene.

PN45

The final point, and this is the most important point, that the balance of convenience is clearly swayed in favour of the applicant because if the stay is ordered, Mr King will be able to proceed next week. The respondent will not be represented and there’s no way the respondent can undo that and the respondent won’t have an opportunity to be properly heard in a properly constituted appeal where the question of leave is considered and then the merits are considered.

PN46

For that to be determined on the basis of a five-minute telephone hearing with no appeal book filed and no other proper ventilation of the issues, we say it manifests as an absolute unfairness to the respondent.

PN47

THE VICE PRESIDENT: Mr Fletcher, I don't agree with you, surprisingly. Mr Fletcher, this is a matter only limited to one question and that is the issue of legal representation and whether in the exercise of discretion that was properly exercised by the member at first instance and I’ve read the judgment of the member at first instance and the narrow point appears to be the issue of whether the matter is complex and otherwise the issues of fairness.

PN48

If I form the view that the matter is not otherwise complex, then clearly the respondent is not prejudiced. What do you say about the complexity of the matter?

PN49

MR FLETCHER: Your Honour, you've seen the volumes and volumes and volumes of material that have been put on by the applicant. It’s our submission that through his own actions, the applicant has made this a complex matter by bringing in matters that really don’t go at all to the question that needs to be determined in an unfair dismissal hearing.

PN50

It’s my submission that that complexity has been created through the applicant’s own actions and needs to be resolved or requires the respondent – requires the assistance of representation in order to assist it to have the hearing properly managed and properly determined. I should also point out, your Honour.

PN51

THE VICE PRESIDENT: Why can’t a Commission member deal with that, Mr Fletcher, given that the relevant letter of termination is dated 30 April 2014, which is very narrow on its compass? I mean, complexity as currently defined, doesn't mean simply a case has got lots of issues.

PN52

MR FLETCHER: I think, with respect, your Honour, one of the issues – that is the issue. The case that’s being put by the applicant in the materials as filed and you've said that you've seen those materials – the position that’s put by the applicant is that there’s an element of bullying, there’s an element of a withdrawn adverse action application and all of those matters are being pressed.

PN53

In addition to that, the applicant - I'm not sure if you have the benefit of the entire unfair dismissal file, but the applicant has issued numerous requests for orders. He’s issued a request for an order for parties to attend, which has had to be responded to. He’s issued a notice to produce, which has had to be responded to. My submission is that this is an unusual case and it’s very rare for the Commission to order final relief through a stay process without a proper appeal being determined. In addition to that, we point out ‑ ‑ ‑

PN54

THE VICE PRESIDENT: So what do you want, Mr Fletcher? Do you want the hearing vacated?

PN55

MR FLETCHER: That would be a suitable outcome, yes. That would solve everyone’s problems because then it can be properly ventilated in appeal. There’s no prejudice to the other parties and the hearing can be heard and determined after the appeal has been heard. I think that’s a very sensible solution, but I don't think you have the power to do that in your current role.

PN56

THE VICE PRESIDENT: No. I can only grant a stay.

PN57

MR FLETCHER: That's correct.

PN58

THE VICE PRESIDENT: And then you can put in an application to vacate prior to the hearing.

PN59

MR FLETCHER: But were the applicant to consent to the adjournment of next week’s hearing, we would have no objection to the matter being heard and determined by a Full Bench first and then having a hearing after that. I see very little prejudice to the applicant in those circumstances where, as you point out, the termination occurred over a year ago.

PN60

The applicant was represented in these proceedings until three weeks before the hearing and then suddenly decided to get rid of his representative and he’s now changing the course of the action completely. I was sort of diverted from the submission that I was making before, but in terms of complexity, the respondent is put in a difficult position because a case was put, materials were filed and although the direction was for filing in November last year, the last materials were filed prior to the applicant getting rid of his representative in December.

PN61

Three weeks before the hearing, the two lever arch volumes of material that you've seen has been filed and the applicant says that he wants to be represented. So I think in the circumstances, yes, the fairest solution for everyone is that the parties consent to an adjournment of next week’s hearing and if the applicant is not prepared to consent to that adjournment then another course of action for your Honour is to not grant the stay, but we would be prepared in that circumstance to give an undertaking that we would apply to have next week adjourned and then it’s in the hands of the applicant whether or not he proceeds.

PN62

THE VICE PRESIDENT: Mr King, you've heard what’s just been put.

PN63

MR KING: Yes. I’ve got to say I got bits and pieces of it. I don't understand the ‑ ‑ ‑

PN64

THE VICE PRESIDENT: Let me break it down in a more simple way. There is some attraction, I must say, to having the hearing date vacated, which gives you, in effect, then the proper Full Bench can actually then deal with the point to finality as distinct from me giving a stay, which may lead to something else which may follow.

PN65

MR KING: Yes, okay. Look, just quickly a couple of points. I mean, as far as the complexity of it, my view is it’s simple. It’s just a chronological order. This happened on this day. This happened on that day. Mr Burton was present and aware of all the events. He took part in all of it, so it’s not complex. It’s simple. It’s just, you know, day 1, day 2, day 3, these things occurred. It’s not complex. In fact, it may be embarrassing.

PN66

Lawyers being there using, what I claim to be, legal trickery to try and remove my evidence to lessen the embarrassment, so that my evidence can’t be heard, my story can’t be heard. That's the position I have. That's the fear I have with there being legal representation.

PN67

They're saying he had the extra information when I gave evidence. He had three weeks. Well, I got their evidence and I’ve had less than a week, six days. They had an extension, a two-week extension, to prepare that. They were supposed to submit that by 4 o'clock. They didn't do it on that time.

PN68

They're claiming they're going through the Commission. I mean, how can – that’s biased, you know, be in there to assist the Commission. So they’ll assist the Commission in favour of their client. They won’t be assisting the Commissioner in my favour. So that’s bias and unfair.

PN69

Look, the appeal, well, I don't know if that’s then going ahead. I mean, it has to be granted, it’s not a guaranteed thing. Representation is a privilege, a gift, to be the norm is to be unrepresented. It’s a layman’s court. So, look, I put the stay in. I'm waiting on whether the appeal goes ahead. If the appeal goes ahead, that’s fantastic. I'm happy with that. So I still want the day, but that’s up to you to decide on the facts and then apply for it to be ‑ ‑ ‑

PN70

THE VICE PRESIDENT: Mr King, what they're actually putting is ‑ ‑ ‑

PN71

MR KING: Sorry?

PN72

THE VICE PRESIDENT: What they're really putting in is - saying to accommodate both parties’ interests, they're saying, “Let’s vacate next week and then we can have an appeal on the actual merits fully determined.”

PN73

MR KING: Okay. So vacate means that the hearing won’t go ahead. Is that right?

PN74

THE VICE PRESIDENT: That is what they're putting.

PN75

MR KING: Okay.

PN76

THE VICE PRESIDENT: Then if you agree with that, then I will go down that path.

PN77

MR KING: Okay. So if I sort of don’t agree to that and I say – because I mean there has been - you know, it’s going on a year now and I’ve been in limbo, still having medical treatment and quite distressed and ill, mentally ill, from all this.

PN78

THE VICE PRESIDENT: Yes. But if we agree that path, I will then make arrangements to order an expedited appeal.

PN79

MR KING: And that is, what, to – sorry, could you please dumb it down for me?

PN80

THE VICE PRESIDENT: That is to have the full appeal on your application, right, to be dealt with in the next few weeks. So it won’t be months. Right?

PN81

MR KING: Okay. That's fantastic. If that’s the case, I am more than happy and, yes, I will - you know, to be accommodating, yes. Yes, because all I want is just to be given a fair go. That's all. It’s just ‑ ‑ ‑

PN82

THE VICE PRESIDENT: All right. Mr Fletcher, you've heard that. So that’s what we will do, Mr Fletcher.

PN83

MR FLETCHER: Thank you, Vice President. That's a very sensible solution.

PN84

THE VICE PRESIDENT: So what I will do, Mr King ‑ ‑ ‑

PN85

MR KING: Your Honour ‑ ‑ ‑

PN86

THE VICE PRESIDENT: ‑ ‑ ‑ is I will make the appropriate orders, right, in effect that the hearing date will be vacated for next week and I will then make some directions as to what material. You may not want to put on any material, but I'll give you some limited time to put further material on and allow the same for the respondent and then we'll organise an expedited hearing in relation to this appeal.

PN87

MR KING: Okay. This will all be in writing ‑ ‑ ‑

PN88

THE VICE PRESIDENT: Yes, it will be in writing. Yes, not verbal.

PN89

MR KING: Is there transcript for ‑ ‑ ‑

PN90

THE VICE PRESIDENT: I mean, we'll put this in writing to you, I should say.

PN91

MR KING: Okay. And is there a transcript of this conference or ‑ ‑ ‑

PN92

THE VICE PRESIDENT: This conference has been recorded. Right? I'm not sure whether our technology - I know we’re about to do it – gives you the telephone recording. If not, we can organise a transcript, but I think we can give you a recording of this conversation of this hearing.

PN93

MR KING: Okay. Thank you. Thank you very much for that, Commissioner.

PN94

THE VICE PRESIDENT: All right, thank you everybody. The Commission is now adjourned.

PN95

MR BURTON: Excuse me, your Honour?

PN96

THE VICE PRESIDENT: Yes.

PN97

MR BURTON: It’s Damian Burton here. Just before you press send on that, could I actually just seek some counsel from my representation privately offline before – I need to be sure that I actually understand what’s just occurred? I know Mr Fletcher is acting on our behalf, but I am not entirely confident that I’ve understood what’s occurred, but if I could have a private conversation ‑ ‑ ‑

PN98

THE VICE PRESIDENT: I can, but what has actually happened is that we’re going to have an expedited appeal.

PN99

MR BURTON: I understand that. I'm not sure that that’s actually in my best interests. I heard your discussion around complexity and I’d like to just contemplate that for a moment. Is it appropriate for me to speak to my counsel?

PN100

THE VICE PRESIDENT: Well, the alternative is, just so you're clear, I determine this matter and if I grant a stay, that means the matter will proceed next week – if I were to grant a stay and you will have to represent yourself.

PN101

MR BURTON: Yes. No, I indicate - I think I understood that part, your Honour. But could I just be sure that I understand the implications of that and what other options may or may not be to our business before you agree to that?

PN102

MR FLETCHER: Your Honour, what I'll do is if Mr Burton has given us an office number for where he is at the moment, if I could just request your indulgence for a few minutes to have a quick call offline in another room and if we could ‑ ‑ ‑

PN103

THE VICE PRESIDENT: So you want us to leave this line open?

PN104

MR FLETCHER: I think that would be beneficial, if that’s okay with you, your Honour.

PN105

THE VICE PRESIDENT: Yes. Mr King, don’t go at this point.

PN106

MR KING: No, I won’t.

PN107

MR FLETCHER: Thanks. We'll be back.

PN108

THE VICE PRESIDENT: Thanks. Mr King, I won’t say anything further at this point because there’s nobody else present.

PN109

MR KING: No.

PN110

THE VICE PRESIDENT: So you just stay there till we’re back on.

PN111

MR KING: Yes, thank you very much.

OFF THE RECORD [2.21 PM]

ON THE RECORD [2.23 PM]

PN112

THE VICE PRESIDENT: Yes, Mr Fletcher? Mr King, are you still there?

PN113

MR KING: Yes, I am.

PN114

MR BURTON: Yes, Damian Burton still here.

PN115

THE VICE PRESIDENT: Thank you.

PN116

MR FLETCHER: We've had a discussion, Vice President, and I’ve explained to Mr Burton what’s been proposed and how that proposal would transpire and one question that I just wanted to ask is the normal course of an appeal is for an appeal book to be filed, but from what you were saying to Mr King before, it sounded like you'll make orders or directions about what type of material ought be filed. I just wanted to be clear that we will be given an opportunity to file our own material in ‑ ‑ ‑

PN117

THE VICE PRESIDENT: Absolutely, Mr Fletcher.

PN118

MR FLETCHER: Thank you.

PN119

THE VICE PRESIDENT: So we’re back to where we were?

PN120

MR FLETCHER: Yes, we are.

PN121

THE VICE PRESIDENT: All right.

PN122

MR KING: For the appeal, doesn't it sort of defeat the purpose if I'm arguing about legal representation and the argument is presented by lawyers? I mean, shouldn't it be ‑ ‑ ‑

PN123

THE VICE PRESIDENT: Yes. Mr King, it’s about legal representation for your unfair dismissal on the merits, which is a different point.

PN124

MR KING: Okay, right.

PN125

THE VICE PRESIDENT: It’s a narrow ‑ ‑ ‑

PN126

MR KING: Well, they're capable of representing themselves.

PN127

THE VICE PRESIDENT: Yes, that's right. Let’s just move this matter forward. It won’t be a very long appeal.

PN128

MR KING: Thank you.

PN129

THE VICE PRESIDENT: It’s not going to go – not that I can pre-judge the length of appeals, but it’s not going to go very long and I'm trying to make it as simple as possible for both parties so the matter gets done in a fairly fast fashion.

PN130

So by agreement the hearing date next week has been vacated. I will notify Commissioner Williams about that and then we'll send you some directions about putting material you may want to put on and you've already put some material on. You may not want to put any additional material on and I'll make similar directions for the respondent.

PN131

MR KING: Thank you.

PN132

THE VICE PRESIDENT: And then we'll organise an expedited hearing date.

PN133

MR KING: Thank you very much.

PN134

THE VICE PRESIDENT: Okay? Anything else, Mr Fletcher?

PN135

MR FLETCHER: No, thank you.

PN136

THE VICE PRESIDENT: All right. The Commission is now adjourned. Thank you everyone.

PN137

MR FLETCHER: Thank you.

ADJOURNED INDEFINITELY [2.26 PM]

Fair Work Commission Transcripts

C2015/1941, Transcript of Proceedings [2015] FWCTrans 168 (25 March 2015)