C2014/7751, Transcript of Proceedings [2015] FWCTrans 32 (23 January 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051298-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

C2014/7751 & C2014/8020

s.604 - Appeal of decisions

Foster v Honeywell
(C2014/8020 & C2014/7751)






Sydney

11.31AM, WEDNESDAY, 21 JANUARY 2015

PN1

JUSTICE ROSS: Can I have the appearances, please? Mr Foster, you're representing yourself. Is that right?

PN2

MR B. FOSTER: Yes, that's correct.

PN3

JUSTICE ROSS: And who is appearing on behalf of Honeywell?

PN4

MS T. BROWN: Tracey Brown, HR (indistinct)

PN5

JUSTICE ROSS: Thank you.

PN6

MS L. WHITEHEAD: And Lisa Whitehead, service manager.

PN7

JUSTICE ROSS: Thank you. Mr Foster, your appeal relates to two section 372 applications that you made. One is matter C2014/1102, and the other is C2014/1665. One was dealt with by Asbury DP, and the other by Spencer C. Is that right?

PN8

MR FOSTER: Yes, that's correct.

PN9

JUSTICE ROSS: Look the first issue that arises is really the competence of the appeal. The commission's role in dealing with a section 372 dispute is to deal with the matter by conciliation or mediation. It's not empowered to make a decision in relation to your dispute. That's a matter that you could take further to the court to argue that case, and there does not appear to be any decision that's been made by either of the commission members in dealing with your matter, and an appeal only lies from a decision made by a commission member. So on what basis do you say you've got a right to appeal the matter?

PN10

MR FOSTER: I'm basing it on the fact that I was given a written warning - - -

PN11

JUSTICE ROSS: But you were given a written warning by Honeywell, weren't you?

PN12

MR FOSTER: Yes, but I was told it was approved by Asbury DP. Is that not correct?

PN13

VICE PRESIDENT HATCHER: Told by whom?

PN14

JUSTICE ROSS: Yes, who were you told that by?

PN15

MR FOSTER: By the second one. I can't remember the first title, but Spencer.

PN16

JUSTICE ROSS: Spencer C.

PN17

MR FOSTER: Yes, Spencer C. Sorry.

PN18

JUSTICE ROSS: When were you told that?

PN19

MR FOSTER: That was when I followed up with the second incident.

PN20

JUSTICE ROSS: Yes. When were you told and by whom? Were you told that in conference?

PN21

MR FOSTER: Yes. It was actually a teleconference over the phone, and I was told over the phone.

PN22

JUSTICE ROSS: Honeywell were represented on the phone conference as well. Is that right?

PN23

MS BROWN: Yes, that's correct.

PN24

JUSTICE ROSS: Is there any document anywhere that says Asbury DP has approved any warning given to you?

PN25

MR FOSTER: I don't have anything in writing that actually says that, but when we split the original conciliation with Asbury DP and we had a separate talk, she indicated to me then that there was a written warning that she'd seen, and she advised me to accept that written warning and come to a - - -

PN26

JUSTICE ROSS: Yes. Well, that's fine.

PN27

MR FOSTER: - - - settlement of the transfer.

PN28

JUSTICE ROSS: Yes, but that's not a decision by the commission. That's in the course of conciliation putting propositions to you about what you should do. It's a matter for you about whether or not you accept them. But there doesn't appear to us to be any decision by either member of the commission on any of the material that's before us. Do you have anything that you can point to which is a decision by either member? We accept what you say, that the Deputy President may well have advised you to settle your matter on the basis of a warning, but that's not a decision by the member.

PN29

MR FOSTER: Right. Well, I mean my whole purpose of being here was to basically I guess present evidence that to me would indicate that the written warning was unjustified. So is this not the correct format to do that?

PN30

JUSTICE ROSS: No, it's not. This is an appeal process, and you can only appeal a decision. If you wish to contest actions that Honeywell have taken against you, and that's been the basis of your applications under section 372, and you wish to take that matter further, then you need to do that in either the Federal Court or the Federal Circuit Court. We don't have power to determine your claim either at first instance or on appeal. Our role in section 372 applications, which is the matter that you have filed, is limited by the statute, and our role is only to conciliate and seek to reach an agreement between the parties, but we have no power to make decisions in relation to disputes of this nature. That power is vested in the two courts that I've mentioned.

PN31

MR FOSTER: Yes. Well, I'm not prepared to go to any court. I was prepared to do some sort of conciliation with Lisa and Tracey there. I'm a bit confused then, I think.

PN32

JUSTICE ROSS: Well, I'm afraid our power is limited by the statue. There's nothing to stop you continuing to have discussions with the Honeywell representatives in an effort to resolve your dispute with the company, and you might take this opportunity to do that, but we have no power to determine your dispute.

PN33

MR FOSTER: Okay.

PN34

JUSTICE ROSS: And Asbury DP and Spencer C similarly had no power to determine the dispute. Our role is limited in the manner I've suggested to you.

PN35

MR FOSTER: So I have identified various what I believe to be discrimination and workplace bullying issues, and I see the written warning as another example of that. So how do I follow that up?

PN36

JUSTICE ROSS: Well, the procedure provided for in the Act is if you're alleging a contravention of the general protections parts, which is what you seem to be doing - - -

PN37

MR FOSTER: Yes.

PN38

JUSTICE ROSS: - - -and you're still employed by Honeywell, then you file the applications you've filed. Our role is to seek to conciliate the matter, and if we're unsuccessful, or if the conciliation is unsuccessful, that's really the end of our role. You can pursue your application in the court. You don't require anything further from us to do that.

PN39

To the extent that you're suggesting that you're being bullied at work, you could file an application pursuant to the anti-bullying parts of the Fair Work Act, and there is material about that on our web site. There is a bench book which sets out information about our jurisdiction in relation to that issue, and we do have power to make orders to stop bullying in the circumstances set out in the Act. But what you have at the moment, you've filed two section 372 applications, there have been conciliations in relation to them, and that's the extent of our role, and no decisions have been issued in either of those matters by the commission, and it's on that basis that I'm putting to you that as no decision has been made there can be no appeal.

PN40

MR FOSTER: Okay. Thank you very much for your time this morning. So is there nothing further to do on this then?

PN41

JUSTICE ROSS: On this matter, no. But, as I have indicated, if you believe you've been bullied at work, you should look at the provisions on the web site, and you can file an application in accordance with those provisions. Alternatively you can pursue your current section 372 applications in the courts. Okay?

PN42

MR FOSTER: Okay. Thank you very much for your time this morning. I appreciate your time.

PN43

JUSTICE ROSS: Thanks. Ms Brown, in the circumstances we don't need to hear from Honeywell in relation to this matter. You've heard what we've put to the appellant.

PN44

MS BROWN: Yes.

PN45

JUSTICE ROSS: It appears to us no decisions having been brought to our attention, and there being nothing on the file to indicate any decision has been made in relation to these matters, it would appear to follow that no appeal lies and that the appeal is incompetent for that reason. Okay? If there's nothing further, we'll adjourn the matter on that basis. Thank you for your attendance.

PN46

MR FOSTER: Okay. Thank you.

PN47

MS BROWN: Thank you.

PN48

MS WHITEHEAD: Thank you.

<ADJOURNED INDEFINITELY [11.48AM]