C2014/6135, Transcript of Proceedings [2015] FWCTrans 18 (21 January 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051249-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SIMPSON

C2014/6135

s.604 - Appeal of decisions

James Jones v Ciuzelis
(C2014/6135)





Brisbane

2.05PM, TUESDAY, 13 JANUARY 2015

Reserved for Decision

PN1

JUSTICE ROSS: Can I take the appearances? I take it you're each representing yourself, is that right?

PN2

MS CIUZELIS: That's right.

PN3

MR JONES: Yes.

PN4

JUSTICE ROSS: Okay. Did each of you receive a copy of a draft background document?

PN5

MR JONES: Yes.

PN6

MS CIUZELIS: Yes, I did.

PN7

JUSTICE ROSS: Okay, and you will notice at the back of it there were some questions asked of each of you. Can I begin by going through those, and then if you have any other comments on the document you can - anything you don't agree with you, you can go to those and then you'll be able to make submissions about whatever else you want to add to the material that you've put in. Any questions before we get going? No? Well, can I go to you then, Mr Jones. You'll see what we have endeavoured to do is to set out at paragraphs 15 to 17 of the document what we understood to be the nature of your complaint, what your appeal was about. Does that accurately summarise what - - -

PN8

MR JONES: Well on that - - -

PN9

JUSTICE ROSS: - - - your appeal is about?

PN10

MR JONES: Concerning that, if I could?

PN11

JUSTICE ROSS: Yes, sure.

PN12

MR JONES: Yes. 15 is 54 to 58, well I've made some notes there about 15.

PN13

JUSTICE ROSS: Sure. These are what are said to be errors of fact.

PN14

MR JONES: I haven't actually recorded many errors of - many of my notes on that. I seem to have started under the words "I feel" so I overlooked 15, but I think I've adequately covered the rest of it in - so I could start at 16.

PN15

JUSTICE ROSS: Yes.

PN16

MR JONES: I saw those questions but my eyes went straight to the word appeal. Well, there's no evidence that I couldn't afford it. Okay, I didn't - there was no discussion about that.

PN17

JUSTICE ROSS: No, for the moment all I'm asking you is whether paragraphs 15 to 17 of this document, is that what you're - - -

PN18

MR JONES: Okay, well I - - -

PN19

JUSTICE ROSS: - - - the nature of your arguments on appeal?

PN20

MR JONES: Yes, well if I can enlarge on a few of those matters. There's no - nothing new about anything.

PN21

JUSTICE ROSS: Sure, yes.

PN22

MR JONES: In relation to that 15, "Greencross and the broker were aware that you would be - Ms Ciuzelis would be dismissed as soon as her compo claim was over with and not before. Greencross made no comment as to why she was not on the transferring list, despite knowing she was on the list of employees in the information memorandum composed many months before".

PN23

JUSTICE ROSS: Well, where is the evidence? You see, we're not dealing with a re-hearing here.

PN24

MR JONES: No.

PN25

JUSTICE ROSS: We're just dealing with what do you say were the errors in the Deputy President's decision.

PN26

MR JONES: Well, the emphasis there is on written documents that you've got.

PN27

JUSTICE ROSS: That's exactly right.

PN28

MR JONES: Yes, but in a sale process as complex as that - - -

PN29

JUSTICE ROSS: No, no, but this isn't - - -

PN30

MR JONES: It's not all written.

PN31

JUSTICE ROSS: Mr Jones, this is an appeal.

PN32

MR JONES: Okay.

PN33

JUSTICE ROSS: Where you're not re-arguing the case.

PN34

MR JONES: Okay.

PN35

JUSTICE ROSS: You have to demonstrate that there is an error in the Deputy President's decision.

PN36

MR JONES: Okay.

PN37

JUSTICE ROSS: And so we're trying to find out - - -

PN38

MR JONES: Yes.

PN39

JUSTICE ROSS: - - - what it is that you say are the errors.

PN40

MR JONES: Okay, well I'll move on then to 16.

PN41

JUSTICE ROSS: Yes.

PN42

MR JONES: Where Ms Ciuzelis was not employed as an office manager. She was not. Now, I did not contest that. Had I had a barrister I might have contested it because she was not - - -

PN43

JUSTICE ROSS: Yes, but how does it make any difference?

PN44

MR JONES: Well, she was regarded as a senior person.

PN45

JUSTICE ROSS: Yes, but you didn't contest it.

PN46

MR JONES: Well I didn't. I didn't.

PN47

JUSTICE ROSS: Well I mean you run your case at first instance. This isn't - in the same way as it's not for Ms Ciuzelis either. If she doesn't agree with a finding made against her and she didn't argue the point below, you can't come along here and re-argue your case. It's not an endless series of two bites at the cherry for either party. But you didn't contest it below. It was clearly put in the witness statement by the applicant below that she described herself as an office manager. You cross-examined her but you didn't make any comment about that point.

PN48

MR JONES: Yes, well - - -

PN49

JUSTICE ROSS: So it's difficult to see - - -

PN50

MR JONES: - - - had I spent 50,000 on a barrister I might have.

PN51

JUSTICE ROSS: Well - - -

PN52

MR JONES: Well I would have. Yes, okay. Well that is an error - - -

PN53

JUSTICE ROSS: But any sort of - - -

PN54

MR JONES: - - - that she based - - -

PN55

JUSTICE ROSS: Any - - -

PN56

MR JONES: - - - her argument on.

PN57

JUSTICE ROSS: No, no, any self-represented party can make exactly the same submission - - -

PN58

MR JONES: Yes.

PN59

JUSTICE ROSS: - - - that you've just made and that - - -

PN60

MR JONES: Well I - - -

PN61

JUSTICE ROSS: - - - doesn't give them a licence to come along on appeal - - -

PN62

MR JONES: Okay.

PN63

JUSTICE ROSS: - - - and to re-run their case.

PN64

MR JONES: Well ask - - -

PN65

JUSTICE ROSS: Most people are self-represented in these matters.

PN66

MR JONES: Asked - yes, yes. Asked if there were any errors there is one. Ms Ciuzelis' claim for compensation was made about two weeks after her absence from work and that was - in my opinion that was - and of the staff, that was another step in her aggressive campaign of non-cooperation. I and other staff needed to do much of her work due to her refusal to perform duties. She declared that she would only do what she was going to do on day 1 when she started employment there.

PN67

Following months of aggression and my busy workload and the prospect of sale within this period, I suffered two mini strokes and spent a day in Mater Hospital. I was not capable of confronting Ms Ciuzelis' aggression at any - at great loss to myself. When I was about to confront her with this campaign of non-cooperation she disappeared, claiming to be sick, and although no details were offered until after two weeks about her illness. She was expecting to be sacked. Most would have expected to be sacked a long time before that. Now I've got a statement of Nola Murphy's which in - stated here is to be submitted.

PN68

JUSTICE ROSS: You can only submit it - - -

PN69

MR JONES: Well, it's stated as a part of it but it's - I've got it as a sworn statement now if you're interested in that.

PN70

JUSTICE ROSS: You can only admit further material if you get permission to appeal and you're able to demonstrate that the matter should go into a re-hearing. If we get to that point then - - -

PN71

MR JONES: Well it was - - -

PN72

JUSTICE ROSS: - - - we'll - - -

PN73

MR JONES: - - - submitted but not as a statement, a sworn statement.

PN74

JUSTICE ROSS: No, it wasn't. It wasn't put in the proceedings at first instance so it's fresh evidence.

PN75

MR JONES: Okay.

PN76

JUSTICE ROSS: I mean, in the case below - - -

PN77

MR JONES: But the - - -

PN78

JUSTICE ROSS: - - - you didn't argue any of this. Your argument - and we've read the transcript. Your argument was that it was a case of redundancy. You didn't put any material about Ms Ciuzelis' poor work performance or the matters you're now referring to, did you?

PN79

MR JONES: In the first instance, no.

PN80

JUSTICE ROSS: No.

PN81

MR JONES: But I did submit that statement of Nola Murphy's which
outlines - - -

PN82

JUSTICE ROSS: What, you put that at first instance?

PN83

MR JONES: No, not in the first instance.

PN84

JUSTICE ROSS: No, well that's really - - -

PN85

MR JONES: But both parties are aware of it.

PN86

JUSTICE ROSS: No, well that doesn't matter; it's what was the Commission member aware of. It's an appeal from that decision. I mean, I get back to the earlier point. An appeal is not a free go for both sides to put arguments and re-run the case that they put below. The statement you're now seeking to rely on, that's the one that is in your - in the submissions. That wasn't put in the proceedings before the Deputy President, was it?

PN87

MR JONES: No.

PN88

JUSTICE ROSS: Okay.

PN89

MR JONES: Well, that's 15. 16. There's a lot of emphasis been put on things that are just most unfair in representing the total situation. That's the last page.

PN90

JUSTICE ROSS: Do you mean in the decision, or?

PN91

MR JONES: Yes.

PN92

JUSTICE ROSS: Yes.

PN93

MR JONES: There's constant reference to the claim of injury. Despite exhaustive examination by WorkCover and the WorkCover appeals section, it could not - the WorkCover claim could not be sustained. I draw your attention to page 59 of the appeals book and the opinion of Dr - the specialist, Dr Gimpel, having done a CT scan. He concluded no fracture or defect is demonstrated. This oversight by me in challenging that, well it wasn't challenged and the - Commissioner Asbury, that was one major fault in handling the case, and had it been represented by a barrister that would have been certainly brought up. The workers compensation claim she claims is irrelevant but it's not.

PN94

It's a part of the whole total situation. She constantly refers to the accident or injury as if it was genuine, and there's no evidence of injury or accident and there never was, otherwise workers compensation and the appeals would have found that. They found that there was none. The workers compensation claim which left much credibility to Ms Ciuzelis' case should in all fairness count heavily against her. After 12 months of exhaustive examination on her behalf the WorkCover case - claim was twice rejected. The simple words is one for rejection don't tell the whole story perpetrated in her prosecution of that claim[sic].

PN95

I see again a document that was brought to that hearing on page 56, the statement of proof. Well, that document by the evidence of the appeals team was the reason for the first rejected - that's the appeal of the workers compensation claim - was the reason for the first rejection of the first - well, overturning the first rejection by WorkCover. And that statement of truth was challenged and found to be incredible and was so dismissed by the WorkCover review team and the claim was rejected a second time. Ms Ciuzelis claimed that there had been people sacked for inquiring about award conditions. That is a lie. There's never been anyone sacked for inquiring about award conditions.

PN96

JUSTICE ROSS: Well, again the issue is that was Ms Ciuzelis' evidence before the Deputy President and you didn't challenge it, and now you say, "Well, that was an error".

PN97

MR JONES: Well, it was used to form this judgment.

PN98

JUSTICE ROSS: That's right, but you should have challenged it. The member can only rely on the evidence and the case that's put to them in making their decision. Here, that was in Ms Ciuzelis' statement. She wasn't challenged about it and in those circumstances the member was entitled to make the finding. In the same way as in relation to your evidence if it wasn't challenged by Ms Ciuzelis and the Deputy President accepted part of that evidence, then on appeal Ms Ciuzelis can't challenge that finding either, because she failed to challenge it at first instance.

PN99

MR JONES: Is there nowhere in the Act that anything that was said in the very first instance could be challenged?

PN100

JUSTICE ROSS: No - - -

PN101

MR JONES: On appeal.

PN102

JUSTICE ROSS: - - - it can be challenged - findings of fact can be challenged but you've got to have some basis and there's a higher threshold for appeal in relation to unfair dismissal matters. You have to show that it's in the public interest and any errors of fact that you wish to rely on have to be significant errors of fact - - -

PN103

MR JONES: They have to be - - -

PN104

JUSTICE ROSS: So you're trying to re-run - - -

PN105

MR JONES: So they - - -

PN106

JUSTICE ROSS: - - - your case Mr - - -

PN107

MR JONES: - - - (indistinct) hearing - - -

PN108

JUSTICE ROSS: But you're trying to re-run your case, Mr Jones. What you're trying to do in your appeal is to mount an argument that you didn't run before. You're mounting an argument that Ms Ciuzelis was an unsatisfactory employee that was on the brink of termination but that step wasn't taken. Well, all of that - I don't doubt that you believe all of that but this is an appeal. It's not a re-hearing unless you get over the threshold and show error. It's not a free run for you to run your case again or for the - - -

PN109

MR JONES: The applicant.

PN110

JUSTICE ROSS: - - - the applicant in the case below to run their case again, otherwise there would be no end to it. Let's assume that you persuaded us and you won it, well then does the applicant just keep going and appeal to the Full Federal Court and it just keeps going endlessly and you come up with different arguments each time? That's not how the appeals system operates.

PN111

MR JONES: Well, okay. Well, I'll skip those next - the next one because there's an error of a date that somebody was hired as well.

PN112

JUSTICE ROSS: That's your argument. I've set those alleged errors out at paragraph 15. You'll see that that's run before.

PN113

MR JONES: Well, there's an assertion that a casual was hired on the 7th of June. Actually she was hired on the 24th of May but that's beside the point now. "The appellant seeks to adduce fresh evidence, namely the unsworn statement of the" - "of Nola Murphy's". That's now a sworn statement, but it's not going to make any difference at all any way, is it? I've got them here as a sworn statement.

PN114

JUSTICE ROSS: Well, you're seeking to tender it?

PN115

MR JONES: Mm'hm?

PN116

JUSTICE ROSS: You're seeking to tender it, is that right?

PN117

MR JONES: Yes.

PN118

JUSTICE ROSS: Well, bring it - can you get it?

PN119

(Discussion re documents)

PN120

JUSTICE ROSS: Okay, so it's in the same form as the unsworn statement?

PN121

MR JONES: It is the exact same statement.

PN122

JUSTICE ROSS: Okay, and this material wasn't put before the Deputy President?

PN123

MR JONES: No, it was filed as a part of the appeal.

PN124

JUSTICE ROSS: Yes. Was there any reason why it couldn't have been put before the Deputy President?

PN125

MR JONES: I didn't know how those things worked, how these things worked. I'm not a barrister. I'm not experienced in this field of endeavour at all. No, I'd sold the business and those people who didn't get a job were gone. As far as I was concerned that was it. But a close examination of dates and documents and only written documents, and emphasis on exactly that, just what they could find in writing like dates of contracts and - which were wrong completely. Emphasis on looking at this and reconstructing the timeline and putting it together from written documents is absolutely a miscarriage as far as I can see. But if - - -

PN126

VICE PRESIDENT HATCHER: But you would have received a direction from the Commission prior to the hearing, asking you to put on all the evidence upon which you wished to rely.

PN127

MR JONES: Yes. Yes.

PN128

VICE PRESIDENT HATCHER: You agree - you accept you received that direction?

PN129

MR JONES: Yes, I know. You can hit me over the head with that but had I been a barrister specialising in industrial matters I probably would've known to do it. I probably would've known that. I'm not. It's as simple as that.

PN130

VICE PRESIDENT HATCHER: Well, it didn't require a law degree to understand that direction, did it?

PN131

MR JONES: It does require a fair level of experience. Why would some people use a barrister in these cases? Why would a barrister get a job? Why wouldn't just any man on the street - he can read? But anyway I'm a - when it comes to that, in the Australian Parliament the Fair Work Act was - in defence of the changes to the Fair Work Act on the 25th of November 2008 the Honourable Julia Gillard, she made a speech to Parliament and said:

PN132

The Bill recognises that small business do not have the human resources support that larger businesses enjoy.

PN133

And the end of the speech goes on to say:

PN134

The Code makes it clear the employer has the right to dismiss without notice an employee for serious misconduct.

PN135

It doesn't count though if you don't notice it in the very first instance, but anyway.

PN136

JUSTICE ROSS: Well, we're not inclined to accept the evidence that could have been put in the proceedings below.

PN137

MR JONES: Yes.

PN138

JUSTICE ROSS: And for that reason we're rejecting - - -

PN139

MR JONES: Well, there were such an emphasis on exact dates in the judgment and dates of occurrences and dates of documents and dates who said what, and the date of the contract is noted by the President - Deputy President as the 7th of June 2013. I received the heads of agreement on the 1st of May 2013 following an inspection a few days prior and the correspondence backwards and forwards with my broker. The 1st of May was the offer, which was immediately accepted and was the only document that affected my life for that period of due diligence from that day. That is the only date that matters. Many documents were signed by me in the due diligence period prior to settlement. Settlement was expected to be at the end of May. At no time in that period did a contract become unconditional. The Deputy President did state that "the sale of business went unconditional". That was her quote.

PN140

JUSTICE ROSS: But wasn't your evidence that it went unconditional on 7 June?

PN141

MR JONES: From the transcript, PN236.

PN142

JUSTICE ROSS: Yes?

PN143

MR JONES:

PN144

I was informed by my broker in the beginning that these contracts do not become unconditional like a house sale, like a contract for a house sale. My responsibilities in the very short due diligence period were extensive and exhausting. Greencross requested several extensions necessitated by their complex company structure surrounding acquisitions of real estate, which they weren't accustomed to. They normally bought a business without the real estate. The due diligence date listed in the schedule 1 as the 14th of June -

PN145

And it was the 1st of May. That's when that work started:

PN146

- it was a date inserted on a document -

PN147

I don't know which document, by who:

PN148

- but it finally resulted in settlement and following the splitting of the contract to property and business and the several extensions I granted, due diligence started 1st of May, the business sale was then promptly settled on the 20th of June. The property contract was settled a few months later therefore the assertions emanating from that reliance on dates and documents is without foundation and is false.

PN149

Ms Ciuzelis' detailed account of the contract is refuted completely - of her time off was completely refuted. There is a statement on the file, which I have another copy of here, of Courtney Place which outlines very accurately the events following the first day off, I think 10th of May, and it's very accurately done but if I didn't put it in the first instance, I didn't challenge it then. Again there's another falsehood that has led to this judgment. The Deputy President erroneously dismissed the - my evidence. However the legal fees - Ms Ciuzelis lied to the testimony however legal fees never being involved, weighed up, she didn't pursue that. She was asked about the compensation claim. I didn't know that that was going to come into this hearing either. That's in the transcript at PN101:

PN150

So did you receive workers compensation payment?

PN151

The answer by Ms Ciuzelis:

PN152

No, I didn't.

PN153

Now Deputy President Asbury finally dragged the truth out of her and - that she had received payment yet it's - still she's given credibility to this absence for work despite the lies. The Deputy President's whole approach to me was that anything I said was - I think she used the word capricious in one of the statements.

PN154

VICE PRESIDENT HATCHER: So where is that?

PN155

MR JONES: I didn't note that. That was a late - but I haven't got the word capricious numbered, I'm sorry.

PN156

JUSTICE ROSS: Is that from the decision or somewhere else?

PN157

MR JONES: It's in - no, it's in the decision.

PN158

JUSTICE ROSS: Yes.

PN159

MR JONES: It is. I had said in one of the hearings not part of the judgment, I said in one of the hearings that I got a phone call in the end from Jason Dacy of Greencross who said, "All the boxes are ticked and the money has been paid into your bank account and you will see it there tomorrow". The President Asbury prefers to believe that that didn't happen like that and she records that Redchip Lawyers were paid the settlement moneys and that there was an email advice from them to me. It didn't happen like that. Actually Rod Lawler of Redchip Lawyers was rather put out by the method of settlement and he was very - he was not expecting that settlement. But nonetheless she didn't believe me.

PN160

Normally settlements you go along and attend and you swap moneys and documents. It didn't happen like that. I got a phone call to say all boxes were ticked, "The money's in your account". She didn't believe that. It's an offensive statement in the appeal. I think it's paragraph 41 of the judgment where "Mr Jones was the" - and I quote, "Where Mr Jones was the architect of the situation that Ms Ciuzelis was in." The situation that she was in was completely of her own making. Completely. The narrow focus on written documents does not convey an accurate representation of the facts in this matter.

PN161

It's not easy to reconstruct exact dates and times from memory and a plethora of sources and witnesses, and Ms Ciuzelis and I both made mistakes with dates in earlier documents. In the course of my day, which was mostly spent in the car, I took many phone calls from the broker who would tell me of an email that needed to be attended to. Most of them were urgent, and the discussion would have to - would have been had about the content of that email. Although there was no written documents it was clear in my recollection from the conversation of my broker that a list of people performing duties was required to be sent.

PN162

Greencross and the broker were well aware of the situation of Ms Ciuzelis and made no comment when she was not included when later they called for staff transfers, despite knowing the details of the information memorandum and that she was on that information memorandum that they knew about. But she failed - now "A reference to the claim of injury despite exhaustive examination from WorkCover could not be sustained". It's - I've mentioned Dr Gimpel's statement that he could find no injury or illness but it still tended heavily in her favour, that injury. It lent a lot of credibility to her case and in all fairness it should have counted against her. After months of examination by WorkCover the claim was twice rejected.

PN163

18, yes Ms Ciuzelis was asked initially in earlier hearings what she wanted from this action and it was a personal reference to gain further employment elsewhere and a much smaller sum of money. However one of her demands was - it was just that reference, which I could not in honesty give. That was one of the earlier claims. A very small amount of money and a personal reference. That's what this was all about in the initial stages. There was no discussion at all about the worth of Ms Ciuzelis, the worth as an employee such that this conclusion could be made. There was a statement there that - in the judgment that she would have remained in employment for at least 12 months. There was no discussion at all in any hearing about her worth as an employee. I do not - - -

PN164

JUSTICE ROSS: So is it your submission on that that because of the difficulties you had experienced with her as an employee, that you didn't - that in your view she would not have been employed for 12 months because she was an unsatisfactory - - -

PN165

MR JONES: That's exactly right.

PN166

JUSTICE ROSS: Because she was an unsatisfactory employee.

PN167

MR JONES: I could not dismiss her while she was on compensation, no matter how false that claim was. I could not. I had to wait until that, and I had some advice from non-experts about that. But nonetheless there was this - there was no discussion in the whole hearing, in any of the hearings, about her worth as an employee that you can draw that conclusion. None at all. So I'm not contesting any evidence or I didn't certain - I certainly didn't put it to the hearing but nobody did and nobody discussed it, but that conclusion was drawn just the same. I did not contest that disgusting assertion by Ms Ciuzelis on page - paragraph 13 that I had dismissed other employees when they sought medical treatment. The falsehood should have been challenged and it was not.

PN168

Those things still counted towards that judgment, those falsehoods. "The other staff failed in their bid to counsel her". The Bill still recognises that a person can be dismissed, that small businesses do not have the human resources to support - the support that the larger businesses have. She - Ms Ciuzelis in all this does acknowledge that she had been warned and she was aware of her conduct would result in dismissal, and normally it would have been much earlier. So just like her deceitful claim for workers compensation, that was - that it was one for rejection, her continued employment was - should have been one for dismissal[sic].

PN169

But the WorkCover claim was simply a small part of the actions, and I know you say the WorkCover claim is not relevant to these proceedings. That's stated by the Deputy President. But it is really a part of the whole action and it cannot be just dismissed. Despite the lies that did she ever receive any payment it was the Deputy Commissioner - Deputy President Asbury who finally explained the lie about that she didn't receive payment. It wasn't - - -

PN170

MS……….: She misunderstood the (indistinct) - - -

PN171

MR JONES: It wasn't - - -

PN172

MS……….: - - - about telling a lie.

PN173

MR JONES: It wasn't Ms Ciuzelis that explained that. It was - the transcript shows it was the President who did all the explaining:

PN174

At all times the appellant was kept up-to-date and aware of her situation and provided with medical certificates.

PN175

I've got a medical certificate here that - one of these ones dated 19th of July, a month after all of this, which calls for Pilates sessions in response to all this illness and injury. Pilates sessions. There's no evidence that she ever took that Pilates. I've got copies of that but that's on your file I believe. Pilates sessions. And the statement by Courtney Place, very detailed, showing conversations from her phone recorded and copied onto there discount Ms Ciuzelis' account of how I was informed and so forth. She detailed her account of her days absent and she had a very comprehensive list of advice to the office, and it's all totally refuted by that.

PN176

But that was known to you. That was on your file. It was totally discounted. One phone call on the 10th of May, not to me, to Courtney Place in the office. Next was a text sent by Courtney to her on the 15th of May, and then she replied to that saying - Ms Ciuzelis replied to that saying, "Hey", she sent this saying, "Hey, are you okay?" and Raquel Ciuzelis replied with, "Hey, I have a misaligned vertebrae". "I commented to Courtney" - and that's in her typed text:

PN177

"Hey, I've got a misaligned vertebrae" I commented to Courtney when I learned that she'd sent that text that very shortly Raquel would've been sacked for abandonment of her duties.

PN178

I think it's - that had gone five days. Nine days and it's abandonment of your duties I believe. And then at some stage this was submitted to us on the - some time after the 19th of July a list - a certificate recommending Pilates. So yes, I've been accused in all of this of not consulting with Ms Ciuzelis. That was - consultations with me was bound to be treated in a hostile manner by her. My attempts to quell the situation with the staff talking to her, her own work mates, that had no effect. That's when she disappeared on sick leave.

PN179

So I was prevented, and I spoke with her when the sale was finally looking - I suppose looking certain, although it was never unconditional. It was never unconditional. It was looking certain at that stage. I phoned her when she said she was free to come back to work. I said I would come over to discuss it. She refused. She refused my attempts to discuss it and at the time seemed happy with two weeks' pay paid into her account. Not much more I can do. So in relation to the public interest, many important issues were not contested by me through inexperience.

PN180

There's been no discussion about Ms Ciuzelis' worth as an employee. None at all to justify the conclusions that were made, and her behaviour, yet conclusions as to her worth were drawn. There was so much reliance on dates of documents, and it is the case that those are misleading, and as I pointed out, the dates on many things were wrong. Although a date did occur on a contract which was the 7th of June, and due diligence I think was supposedly complete by the 14th of June, due diligence started on the 1st of May. Now if Greencross put dates on documents like that, fine. I signed the contract I think three times. Three times.

PN181

The 30th of May it was supposed to be all over but they had a lot of problems with establishing a trust that would house the property, and they finally - we finally agreed and my lawyer wasn't very happy about it. But we finally agreed to split the contract into two, business and property. That's when it was all settled. So the dates that you rely on, they're wrong. Okay, I'm not going to dispute the dates are on those contracts but they had no effect on this at all. So there's so much reliance on dates of documents and it is the case that those are misleading.

PN182

I take no account of much - they don't take any account of the history of the event being verbal, and most of it was verbal. I was in car and I was speaking hands-free on a phone. That was how most of the due diligence was done, despite the fact that your insistence is to only look at written documents. Most of what was done was verbal. The judgment has the emphasis only on my responsibility as an employer and discounts completely Ms Ciuzelis' responsibility to act in a fair and reasonable manner towards her employer.

PN183

MS……….1: Not when he's naked.

PN184

MS………. 2: Stop.

PN185

MR JONES: Not what?

PN186

JUSTICE ROSS: If you can't keep quiet you can leave, okay? It's a public hearing but you're not to interrupt what parties are putting.

PN187

Mr Jones?

PN188

MR JONES: Well, that's - I've covered those - that question about the public interest. They were the three points that I made.

PN189

JUSTICE ROSS: And I take it that you employed - at the time Ms Ciuzelis' employment was terminated you employed less than 15 people?

PN190

MR JONES: Yes.

PN191

JUSTICE ROSS: And you dismissed her for what you believed was redundancy at that time?

PN192

MR JONES: I dismissed her because the decision was made to dismiss her for fraud and - - -

PN193

JUSTICE ROSS: Well in the employment separation certificate that you gave me - - -

PN194

MR JONES: I know what I - - -

PN195

JUSTICE ROSS: - - - you say redundancy.

PN196

MR JONES: I know what I've signed but I chose to just let the situation - and I tried to do this by getting the staff to talk to her rather than me, because that was going to be counter-productive. I tried many things. I thought she can get another job much more easily if she has not been sacked for dishonesty and fraud where she impersonated me in an email. That statement there is quite explicit. Quite explicit. That was the case. But she would have been sacked for the same reason she was warned about the way she was dealing with the vets, the vets' staff and clients.

PN197

That email of complaint about her was intercepted by her and answered to quell a complaint about her, and she sent the email back to the client in my name. The client thought it was me she was corresponding with, and I had no idea until the other staff who were there at the time told me about it. So she was actually going to be terminated for fraud and deceitful actions as well as what she was previously warned about. So she was one for dismissal and her deceitful campaign and the compensation claim was just but one of them. Mostly it was a campaign of refusing to do her job. Now most people would have been sacked straight away, but why would it go on for three months? Well that's - - -

PN198

JUSTICE ROSS: I understand what you say about her performance and you say that her conduct gave you other grounds for dismissing her. But isn't the fact that what you did dismiss her for was redundancy?

PN199

MR JONES: No.

PN200

JUSTICE ROSS: Then did you make a false - - -

PN201

MR JONES: There was - - -

PN202

JUSTICE ROSS: - - - statement?

PN203

MR JONES: That statement was put - - -

PN204

JUSTICE ROSS: Well, did you - - -

PN205

MR JONES: - - - on her - - -

PN206

JUSTICE ROSS: Employment separate - are you saying - - -

PN207

MR JONES: - - - employment separation certificate.

PN208

JUSTICE ROSS: - - - it was false?

PN209

MR JONES: Well, no, just - - -

PN210

JUSTICE ROSS: I mean you - - -

PN211

MR JONES: - - - it didn't include all those other things.

PN212

JUSTICE ROSS: But you didn't argue any of those other things before the Deputy President either.

PN213

MR JONES: They were irrelevant at the time.

PN214

JUSTICE ROSS: All right. Anything else?

PN215

MR JONES: No.

PN216

JUSTICE ROSS: Ms Ciuzelis?

PN217

MS CIUZELIS: I didn't realise we were going to go over all the evidence that I had provided and things like that, and I'm probably not going to sit here and waste my time going over it again. I provided phone records in relation to the text messages and all phone calls that I made to James about me being off. In the email that you did send, that's what I worked off of today. I didn't - if I can give you a copy just of my submission just before I follow it[sic], so you can follow it?

PN218

JUSTICE ROSS: Sure. Yes. I don't -well, perhaps if you read it out that might be the easiest way?

PN219

MS CIUZELIS: Yes. So I just reiterated on what we was asked of in the questions. So about genuine redundancy.

PN220

JUSTICE ROSS: Yes.

PN221

MS CIUZELIS:

PN222

The person's job does not need to be done by anyone. The employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.

PN223

Then my response to that was:

PN224

Another person was employed to do my job. The employer did not follow the Small Business Fair Dismissal Code and filled my position with a new employee. He still needed my job to be done by someone else.

PN225

The second point:

PN226

Consulting with employees about major workplace changes.

PN227

This is provided by the Fair Work Ombudsman:

PN228

"You need to notify the employee who may be affected b y the proposed changes, providing the employees with information about these changes and their expected effects, discussing steps taken to avoid and minimise negative effects on the employees, considering employees' ideas and suggestions about the changes."

PN229

At no time were any of these above done to me. Again, James Jones did not follow the Small Business Fair Dismissal Code.

PN230

The checklist for the Small Business Dismissal Code I just went through, just simplified it:

PN231

I was a part of a team under 15 employees. I was employed full-time for 12 months or more. I was made redundant when James Jones did not - when - did require someone else to do my job.

PN232

(a) he did not comply with the requirements to consult about the redundancy in the modern award, enterprise agreement or any other industrial agreement that applied to my employment

PN233

(b) he did not consider if I could have been deployed in the business or the business of another associated entity.

PN234

Because it was - the argument was about genuine redundancy not about how I was dismissed, my - anything like that, I didn't refer to that in this document.

PN235

JUSTICE ROSS: Yes.

PN236

MS CIUZELIS: So I just went on to again go on about redundancy. A letter of termination of my employment referring to redundancy:

PN237

1. Inform employees about the changes within the business that may affect their working arrangements.

PN238

2. Provide employees with the opportunity to ask questions.

PN239

3. Consider all options and alternatives to redundancy such as redeployment, job sharing and reduced overtime.

PN240

Again, at no point in any of - at no point at any time was I - the above given to me.

PN241

A letter of termination of employment:

PN242

1. The reason for the employment of -

PN243

Sorry:

PN244

The reason for the termination of the employee's employment.

PN245

2. The notice period and whether the employee will be paid in lieu of notice.

PN246

3. The date of the employee's last day of work.

PN247

And:

PN248

4. Details of the employee's redundancy pay entitlements and any other entitlements.

PN249

"Meet with the employee to provide notice of termination. Again, meet with the employee to give them a letter, explain the reasons the position has been made redundant and provide them with the opportunity to ask questions. Carefully explain the information in the letter and ensure the employee understands."

PN250

At no time did this happen nor did I receive anything via mail. At not time did I receive pay slips as per section 536 of the Fair Work Act.

PN251

I only worked off of the argument that it was an ungenuine redundancy.

PN252

JUSTICE ROSS: Yes.

PN253

MS CIUZELIS: We had been through the hearings, we had finally got a decision that it was based on that, and James Jones' argument was that it was redundancy and that's what I answered to.

PN254

JUSTICE ROSS: Yes.

PN255

MS CIUZELIS: I didn't refer back to any more arguments that I could have brought up with his evidence in the hearing or anything like that.

PN256

JUSTICE ROSS: No, you've replied to it as - - -

PN257

MS CIUZELIS: Because it was an appeal.

PN258

JUSTICE ROSS: Yes, and at paragraph 18 of the background document we summarise what you say.

PN259

MS CIUZELIS: Yes.

PN260

JUSTICE ROSS: And do you agree that that summarises what you say in response to Mr Jones' submissions?

PN261

MS CIUZELIS: Yes, they do.

PN262

JUSTICE ROSS: Okay, is there anything else you want to say?

PN263

MS CIUZELIS: There's a lot more I'd like to say but it wouldn't be relevant and it would be probably a bit more emotional because it was nothing of what he said it was.

PN264

JUSTICE ROSS: All right.

PN265

MS CIUZELIS: In relation to today.

PN266

JUSTICE ROSS: Can I go to the compensation amount?

PN267

MS CIUZELIS: Yes.

PN268

JUSTICE ROSS: And it seems from the transcript that the - - -

PN269

MS CIUZELIS: In regards to the compensation I received for WorkCover?

PN270

JUSTICE ROSS: No. No, no, I wasn't going to that. I've read that part of the transcript. But it appears that you were asked for copies of your pay slips or group certificate and then there was an issue about the amount you were paid, and then I think whether it was 880 gross or net.

PN271

MS CIUZELIS: Yes.

PN272

JUSTICE ROSS: There was a bit of a debate about that.

PN273

MS CIUZELIS: Yes.

PN274

JUSTICE ROSS: But that's then resolved.

PN275

MS CIUZELIS: Yes.

PN276

JUSTICE ROSS: Was there any - did you make any submissions about any of the matters that are relevant to the award of compensation? If I take you - if I go back to that background document, let me just explain what I mean. You see at paragraph 13?

PN277

MS CIUZELIS: I don't have - - -

PN278

JUSTICE ROSS: This is going to the point that Mr Jones raises that he didn't get an opportunity to make submissions about how long you might have worked but for the dismissal, okay? That's the context. If I just take you to - - -

PN279

MS CIUZELIS: But I - it was reduced to six months.

PN280

JUSTICE ROSS: No, no, I understand your argument but if I just take you to paragraph 13 for the moment. You see there it sets out section 392?

PN281

MS CIUZELIS: I don't have the background in front of me, I'm so sorry.

PN282

JUSTICE ROSS: That's all right. Yes.

PN283

MS CIUZELIS: I read through it and prepared this and - - -

PN284

JUSTICE ROSS: No, that's fine. I'll give you my copy.

PN285

MS CIUZELIS: Paragraph 13?

PN286

JUSTICE ROSS: Yes.

PN287

MS CIUZELIS: Yes.

PN288

JUSTICE ROSS: It sets out section 392.

PN289

MS CIUZELIS: Yes.

PN290

JUSTICE ROSS: And subsection (2)(b) talks about the remuneration you would have earned but for the dismissal.

PN291

MS CIUZELIS: Yes.

PN292

JUSTICE ROSS: And in the Deputy President's decision she says that you would have remained in employment for at least 12 months and then she discounts that.

PN293

MS CIUZELIS: Yes.

PN294

JUSTICE ROSS: By 50 per cent, deals with the question of she deducts the amount paid for notice.

PN295

MS CIUZELIS: Just - yes.

PN296

JUSTICE ROSS: Yes, and she also deducts some payments from Centrelink.

PN297

MS CIUZELIS: That's correct.

PN298

JUSTICE ROSS: Right. I know there's a debate about whether she should have deduced the workers compensation and I know what you say about that, because those payments were made prior to your dismissal.

PN299

MS CIUZELIS: That's right.

PN300

JUSTICE ROSS: That's your argument. No, that's fine.

PN301

MS CIUZELIS: I didn't receive any amount of compensation paid - - -

PN302

JUSTICE ROSS: After your dismissal.

PN303

MS CIUZELIS: No.

PN304

JUSTICE ROSS: Yes. No, I understand that. What I'm asking you is whether because the transcript seems to end on that day with that brief discussion about the 880, was there a later hearing or were there any submissions put by either you or by Mr Jones in relation to those matters that are listed in section 392? I mean, did you submit for example that you would have remained in employment for 12 months?

PN305

MS CIUZELIS: No, I didn't.

PN306

JUSTICE ROSS: No and, similarly, to your knowledge was there any submission by Mr Jones that that should be discounted by 50 per cent? So none of that was the subject of any submissions by either of you, is that the - - -

PN307

MS CIUZELIS: No.

PN308

JUSTICE ROSS: No, all right.

PN309

MS CIUZELIS: It was just the length of time that I had been employed prior.

PN310

JUSTICE ROSS: The two and a half years, yes.

PN311

MS CIUZELIS: That's right.

PN312

JUSTICE ROSS: Yes.

PN313

MS CIUZELIS: That she didn't see a reason why I wouldn't remain in employment for 12 months, but made contingencies and reduced that.

PN314

JUSTICE ROSS: Yes.

PN315

MS CIUZELIS: So, yes, but there was no submissions.

PN316

JUSTICE ROSS: Okay. Was there anything else you wanted to say?

PN317

MS CIUZELIS: No.

PN318

JUSTICE ROSS: No?

PN319

Is there anything you wanted to say in reply?

PN320

MR JONES: Yes, I'd just like to - I did - I'm sure I did cover it but that dismissal code that - - -

PN321

JUSTICE ROSS: Yes?

PN322

MR JONES: - - - you rely on so heavily, it was put - - -

PN323

JUSTICE ROSS: Well, I'm not relying on it. I'm referring you to it.

PN324

MR JONES: Yes.

PN325

JUSTICE ROSS: Out of fairness because it wasn't dealt with - - -

PN326

MR JONES: No.

PN327

JUSTICE ROSS: - - - below.

PN328

MR JONES: Yes, but the dismissal code nonetheless is heavily - has great emphasis when these judgments are made, if you don't follow the code. I was prevented from doing that by all of these actions. I tried. I offered by phone to go over and discuss it. I wanted - at all times with all my staff I've always been very fair. Most of my staff except one or two over the last 30 years have been long term employees. This is the last thing I ever would have expected of anyone.

PN329

JUSTICE ROSS: So what - - -

PN330

MR JONES: But that code was not followed - sorry, that code was not followed because of her actions, so it's her responsibility completely, not mine, although I wear the consequences.

PN331

JUSTICE ROSS: All right, so I take it then you accept you didn't comply with the code?

PN332

MR JONES: The dismissal code.

PN333

JUSTICE ROSS: Yes. Well, I take from that statement you accept that the code wasn't followed?

PN334

MR JONES: No, I did not give the required warn - I gave - there was a warning previous. She doesn't dispute that. But I think you had to have another meeting and discuss it and outline the exact reasons. Now had I done that I perhaps would have enlarged on that, especially the fraud. I would have done that. I was prevented from following that code to the letter, which of course now is my responsibility. It doesn't seem to have any responsibility from the other side, but I wear the responsibility for that.

PN335

JUSTICE ROSS: If there is nothing further from either party, we'll adjourn now and we'll reserve our decision to consider what you've each put. Thank you.

<ADJOURNED ACCORDINGLY [3.00PM]