C2015/2147, Transcript of Proceedings [2015] FWCTrans 249 (22 April 2015)

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PN1

VICE PRESIDENT CATANZARITI: Thank you, I’ll take the appearances. Mr Cornwall?

PN2

MR CORNWALL: Yes, your Honour.

PN3

VICE PRESIDENT CATANZARITI: Yes, and I have Ms Mackey and Mr Sapio, is that right?

PN4

MS MACKEY: Yes, that's correct.

PN5

VICE PRESIDENT CATANZARITI: Sorry, is Mr Sapio there?

PN6

MR SAPIO: Yes.

PN7

VICE PRESIDENT CATANZARITI: Right, I just couldn't see on the video.

PN8

All right, Mr Cornwall, this is your appeal. It's permission to appeal only. We've read the material that has been filed. Are there matters you wish to address us orally?

PN9

MR CORNWALL: Yes.

PN10

VICE PRESIDENT CATANZARITI: Please do so, Mr Cornwall.

PN11

MR CORNWALL: I would like to also submit some additional documentation. Unfortunately I've - - -

PN12

VICE PRESIDENT CATANZARITI: Well Mr Cornwall, you'll have to make an application as to why you should be allowed to admit additional material on a permission to appeal matter.

PN13

MR CORNWALL: I've already rung the office to get permission to do this. The reason for adding these documents is that since - - -

PN14

VICE PRESIDENT CATANZARITI: Sorry, you rang the office. You weren't granted permission.

PN15

MR CORNWALL: That's correct.

PN16

VICE PRESIDENT CATANZARITI: Exactly.

PN17

MR CORNWALL: I rang on several occasions and didn't get a call back on it either.

PN18

VICE PRESIDENT CATANZARITI: What is the material you wish to now lead?

PN19

MR CORNWALL: It's retail time sheets, permanent, from Jaycar themselves, from Electus.

PN20

VICE PRESIDENT CATANZARITI: Yes, and how do you say that is relevant to this matter or why we should allow new evidence in a permission to appeal matter?

PN21

MR CORNWALL: The mistake made in the original case was that it was judged on the evidence at the time and not the evidence preceding the problem period.

PN22

VICE PRESIDENT CATANZARITI: Yes, but you ran that case at the time. This material was in existence at the time, Mr Cornwall, was it not?

PN23

MR CORNWALL: Yes, it was.

PN24

VICE PRESIDENT CATANZARITI: And you could have used that material in the matter before Commissioner Cloghan had you chosen to do so.

PN25

MR CORNWALL: It wasn't opposed at that stage by the other party.

PN26

VICE PRESIDENT CATANZARITI: No, but you didn't lead that material at the matter at first instance. We are now dealing with permission to appeal. You need to persuade us why we should allow which you had available at the time.

PN27

MR CORNWALL: This is only to counteract some additional information also sent in by Electus.

PN28

VICE PRESIDENT CATANZARITI: Well, you need to do better than that, Mr Cornwall, just so you're clear on this. I mean the only matter we're dealing with today is permission to appeal the decision by Commissioner Cloghan.

PN29

MR CORNWALL: Yes.

PN30

VICE PRESIDENT CATANZARITI: It would have to be unusual circumstances why you should be permitted to adduce new material, particularly that material that was otherwise available for you when you ran your unfair dismissal in the first place.

PN31

MR CORNWALL: Okay, did you - you've read the application I put in?

PN32

VICE PRESIDENT CATANZARITI: We have read the application you have put in.

PN33

MR CORNWALL: Well, the thing that was totally ignored was the fact that I was suffering stress at the time. That seems to have been totally left out of the case. There was misstated facts in the case.

PN34

VICE PRESIDENT CATANZARITI: Yes, but Mr Cornwall at the moment the point we're dealing with in a limited way is the new material you want to lead. The new material you want to lead has nothing to do with stress.

PN35

MR CORNWALL: No, that's correct.

PN36

VICE PRESIDENT CATANZARITI: So - - -

PN37

MR CORNWALL: Well, yes it has. It's - - -

PN38

VICE PRESIDENT CATANZARITI: No it doesn't, Mr Cornwall. It's a document of records, right? You need to satisfy us why that material should be allowed in otherwise we'll proceed with this permission to appeal on the material as it was before the Commission member.

PN39

MR CORNWALL: Well, I don't have a transcript of the original hearing. I was not given one, but in that hearing it was stated the hours worked were excessive over a period of many months and that leave was refused after that time, including in breach of our contract which was to allow leave in the January of the following year.

PN40

VICE PRESIDENT CATANZARITI: Yes, how does that go to leading this new document?

PN41

MR CORNWALL: This is just proof of - they seem to be disputing the hours worked as claimed by me and this actually shows the hours worked that they accept, and there are some of those hours are disputed by me.

PN42

VICE PRESIDENT CATANZARITI: Yes, is that all you wish to say in relation to trying to lead new material on this permission to appeal matter?

PN43

MR CORNWALL: Well, if they've got additional material in their appeal, in their response to it, that's the only reason for needing the additional material.

PN44

VICE PRESIDENT CATANZARITI: They have not been given permission either to add new material on your permission to appeal, and if they want to lead new material they will have to address the same points and seek our approval.

PN45

MR CORNWALL: Okay then we - - -

PN46

VICE PRESIDENT CATANZARITI: So therefore what you're saying is the only basis you wish to lead new material is because of the way they've responded to your permission to appeal matter?

PN47

MR CORNWALL: That's correct.

PN48

VICE PRESIDENT CATANZARITI: All right, we'll just have a - just a moment. No, we will not allow the new material to be put into this permission to appeal, so let's go back to the permission to appeal. We don't see the relevance of it, having regard to the fact that the material was available at first instance. In any event you say it arises as a consequence of their response to this permission to appeal. So we'll let you now address if there are any oral comments you wish to make in relation to why permission should be granted for permission to appeal, and bear in mind as I've said we've read your material that you've filed thus far.

PN49

MR CORNWALL: That should then cover it.

PN50

VICE PRESIDENT CATANZARITI: All right. Thank you Mr Cornwall.

PN51

Now who is the spokesperson for the company?

PN52

MS MACKEY: Mrs Mackey.

PN53

VICE PRESIDENT CATANZARITI: Thank you Ms Mackey. What does the respondent wish to say in relation to permission to appeal as to whether it should be granted or - I assume you're opposing permission to appeal?

PN54

MS MACKEY: Yes, we would oppose permission to appeal based on the grounds that we don't believe, or have read from Mr Cornwall's submission, that he has demonstrated any significant error of fact or any other additional material that wasn't in consideration. So we would appeal based on that, and that going through the transcript from the last proceedings we are confident that that covered off all matters that were brought into consideration in the case.

PN55

VICE PRESIDENT CATANZARITI: Is there anything further you wish to put, Ms Mackey?

PN56

MS MACKEY: No. No, that's all we wish to put at this stage.

PN57

VICE PRESIDENT CATANZARITI: Mr Cornwall, is there anything further you wish to put before us on permission to appeal?

PN58

MR CORNWALL: It's interesting that they got a copy of the transcript which I did not receive.

PN59

VICE PRESIDENT CATANZARITI: Is that all you wish to say, Mr Cornwall?

PN60

MR CORNWALL: No, there's nothing I can add to that that I haven't covered in the written side of it.

PN61

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.14 PM]

Fair Work Commission Transcripts

C2015/2147, Transcript of Proceedings [2015] FWCTrans 249 (22 April 2015)