C2015/186, Transcript of Proceedings [2015] FWCTrans 376 (26 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052015

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DEPUTY PRESIDENT ASBURY

C2015/186

s.739 - Application to deal with a dispute

Mr Leighton Cowley

and

Dust-A-Side Australia Pty Ltd
(C2015/186)

Brisbane

10.09 AM, TUESDAY, 24 MARCH 2015

PN1

THE DEPUTY PRESIDENT: I will open this hearing into matter C136 of 2105. The matter is an application by Mr Cowley seeking that the Commission deal with a dispute pursuant to section 739 of the Act in relation to the entitlement that he asserts he has to long service leave.

PN2

I ve received the material from both parties. Perhaps if I could ask that you speak to your material and Mr Cowley, you tell me what you re seeking from this exercise and how you say I have to grant your application?

PN3

MR L COWLEY: What s that?

PN4

THE DEPUTY PRESIDENT: What are you seeking from this application Mr Cowley. I d like you to speak to your application, because essentially the respondent is saying that the document that you sent me, dated 19 January 2015 is not a document that they sent you.

PN5

MR COWLEY: Yes it is. It is a document. I ve got both of their documents.

PN6

THE DEPUTY PRESIDENT: Well, they say that the document they sent you on 19 January isn t their document and you say that you only got that document on the 21st, as I understand it.

PN7

MR COWLEY: Yes.

PN8

THE DEPUTY PRESIDENT: And they say that you already responded to an email.

PN9

MR COWLEY: No, that email that I responded to, I sent payroll a letter for the application of my long service leave. That s the letter. I read them emails. That s the letter that I sent them, and they replied to my email.

PN10

THE DEPUTY PRESIDENT: So you say you didn t get their version of the termination letter, at all. You only got the version that you sent me?

PN11

MR COWLEY: And the second one I got on 18 February which was sent to you as well.

PN12

THE DEPUTY PRESIDENT: So the one you say you got on 18 February is that the - it s just difficult to understand exactly what you re saying Mr Cowley. So in your statutory declaration you say you got a phone call on 19 January.

PN13

MR COWLEY: Yes.

PN14

THE DEPUTY PRESIDENT: You were told don t turn up for your next shift. You got the retrenchment letter on 21 January, but dated 19 January via mail.

PN15

MR COWLEY: Yes and on 18 February, I got sent another letter stating similar differences of my termination.

PN16

THE DEPUTY PRESIDENT: Can I assume that the other letter you got is the version of the termination letter that the respondent says they sent you?

PN17

MR COWLEY: Yes.

PN18

THE DEPUTY PRESIDENT: All right, so you say that you got the version that has retrenchment in the heading on the 21st and then on 18 February you got the version that doesn t say retrenchment in the heading.

PN19

MR COWLEY: Yes, that s correct. And that one on the 18th that I got dated back to the 19th as well, of the first.

PN20

THE DEPUTY PRESIDENT: How did you get the one on the 18th?

PN21

MR COWLEY: From Neil s email. Neil emailed it. I think I was cc d in the dispute with the chambers.

PN22

THE DEPUTY PRESIDENT: I ve got an email here that s attached to Mr Hewitt s affidavit.

PN23

MR COWLEY: 18 February I got it, yes. Dear Mr Burke, blah blah blah.

PN24

THE DEPUTY PRESIDENT: There s an email here marked item #03 that the respondent s provided and that s an email from the Miempie Coetzer dated Monday 19 January 2015, 3.47 pm addressed to you, copied to Mr Hoskin, subject employment information. They re saying ‑ ‑ ‑

PN25

MR COWLEY: Which one is that on?

PN26

THE DEPUTY PRESIDENT: In the respondent s material that they ve provided. So they ve sent an email, Mr Hoskin sent an email dated Monday 16 March.

PN27

MR COWLEY: No, I m talking an email before that.

PN28

THE DEPUTY PRESIDENT: Yes, but can you listen to me please?

PN29

MR COWLEY: Well you ve me what I m trying to explain, you ve told me to explain what I want to say, now you re telling me to shut up.

PN30

THE DEPUTY PRESIDENT: I m not telling you to shut up Mr Cowley.

PN31

MR COWLEY: Well, I m telling you on the 18 February he sent me an email.

PN32

THE DEPUTY PRESIDENT: Mr Cowley, all right. Now Mr Cowley, I m asking you a question. Now I m trying to get to the bottom of this, so I suggest Mr Cowley you take a deep breath, calm down. Sorry?

PN33

MR COWLEY: I said I m at work, it s a bit inconvenient.

PN34

THE DEPUTY PRESIDENT: Well Mr Cowley, this is your application.

PN35

MR COWLEY: I know.

PN36

THE DEPUTY PRESIDENT: When would it be convenient for me to deal with it, because I can tell you now, I ve got better things to do than sit here and put up - well if you want me to deal with your application Mr Cowley, we have to have a hearing and that s what I m trying to do. Would another time suit you better?

PN37

MR COWLEY: No, get it over and done with now.

PN38

THE DEPUTY PRESIDENT: Good, then are you prepared to listen to my question.

PN39

MR COWLEY: Yes.

PN40

THE DEPUTY PRESIDENT: Good, thank you. I ve got an email here sent from Mr Hoskin to my chambers and it s dated 16 March 2015 at 2.10 pm. Have you got a copy of that email? It s got statutory declarations attached to it.

PN41

MR COWLEY: Yes, yes. Got it in front of me.

PN42

THE DEPUTY PRESIDENT: Right, thank you. So first we ve got a statutory declaration from Mr Hoskin.

PN43

MR COWLEY: Yes.

PN44

THE DEPUTY PRESIDENT: Then we ve got a document that s headed item#01 record of counselling?

PN45

MR COWLEY: No, I haven t got that one. No, I ve got item 1, 2, 3, 4 down to 13. I haven t got any record of anything.

PN46

THE DEPUTY PRESIDENT: On the top of the document, it s handwritten item one, and it says Dust-A-Side Australia record of counselling. Do you have that?

PN47

MR COWLEY: Yes.

PN48

THE DEPUTY PRESIDENT: Good, right. Keep turning the pages. Item 2, is a statutory declaration from Mr Hewitt.

PN49

MR COWLEY: Yes.

PN50

THE DEPUTY PRESIDENT: Item 3 is an email from the Miempie Coetzer sent, allegedly, Monday 19 January 3.47 pm to you and it says Please find important information regarding your employment attached and when you turn over, item 4 is a letter dated 19 January that says Re your employment with Dust-A-Side Pty Ltd .

PN51

MR COWLEY: No, I didn t get that one emailed to me.

PN52

THE DEPUTY PRESIDENT: So you re saying you didn t receive that email?

PN53

MR COWLEY: I got an email but I didn t get any attachments. From them attachments, myself and Miempie were discussing the long service leave application form that I had emailed her about what to mark on it.

PN54

THE DEPUTY PRESIDENT: But see that email Mr Cowley, item 3. It says employment information, attachments Leighton Cowley termination.pdf. So did you ever get that, even the covering email?

PN55

MR COWLEY: No, which one? 3?

PN56

THE DEPUTY PRESIDENT: Item 3.

PN57

MR COWLEY: No, I don t recall it at all.

PN58

THE DEPUTY PRESIDENT: Well it says it was delivered on 19 January at 3.43 pm and the version of the letter that the respondent says was sent to you is attached to it.

PN59

MR COWLEY: No, I definitely didn t receive that through my emails.

PN60

THE DEPUTY PRESIDENT: Then there s an email from you which is item 6, Dear Miempie, did you receive the letter I sent this morning in regards to the termination .

PN61

MR COWLEY: Yes, that s my long service leave application that I sent her because I had to send it to her so she could forward it to long service leave.

PN62

THE DEPUTY PRESIDENT: The point is Mr Cowley if you did not receive the letter terminating your employment until you got it in the mail on 21 January, then how did you come to be corresponding with Ms Coetzer at 4.01 pm on Monday 19 January, which was some minutes after she sent you an email at 3.47 pm.

PN63

MR COWLEY: Because I didn t reply to that letter. I wasn t replying to that letter to send the long service leave. They didn t need that.

PN64

THE DEPUTY PRESIDENT: I know Mr Cowley, but how did you know you d been terminated if you hadn t received the letter?

PN65

MR COWLEY: Because Rory(?) rung me 7.30 that morning and told me. That s why. I spoke to Rory at 7.30 on that morning.

PN66

THE DEPUTY PRESIDENT: But Mr Cowley, look at item 6 in that bundle of documents. Underneath your email to Ms Coetzer is the email that she sent you. Dear Leighton, please find important information regarding your employment with Dust-A-Side attached. So, you have replied to her email, so the point the company is making, with their statutory declarations is you must have received the letter that was attached to that email because you replied to it.

PN67

MR COWLEY: No, that s not the reply to that email.

PN68

THE DEPUTY PRESIDENT: Well it s on ‑ ‑ ‑

PN69

MR COWLEY: No, it s not because that is not cc d to Neil as well. That one that I wrote to Miempie is a personal email directly to Miempie and myself and no one else was cc d in it.

PN70

THE DEPUTY PRESIDENT: But it s a response to her email.

PN71

MR COWLEY: No it wasn t, no it wasn t, not at all.

PN72

THE DEPUTY PRESIDENT: All that could mean is instead of hitting reply all, you just hit reply to her because that is‑ ‑ ‑

PN73

MR COWLEY: No, I didn t. I know for a fact that I did not email Neil in regards to that long service application.

PN74

THE DEPUTY PRESIDENT: I m not saying you did email Neil.

PN75

MR COWLEY: You were just saying you were. You just said I did.

PN76

THE DEPUTY PRESIDENT: No I didn t Mr Cowley, you re not listening. What I said is that you deny you got the email that s ‑ ‑ ‑

PN77

MR COWLEY: I got them all.

PN78

THE DEPUTY PRESIDENT: Mr Cowley you just told me five minutes ago that item 3 and item 4 you didn t receive.

PN79

MR COWLEY: I didn t that s right. I m telling you that I ve got all the ones that I corresponded with Miempie with.

PN80

THE DEPUTY PRESIDENT: Good, okay so Mr Cowley listen to me. I know this is difficult, but you re not helping.

PN81

MR COWLEY: Well, it s rather confusing when you ve got three people on a telephone.

PN82

THE DEPUTY PRESIDENT: What would you suggest? Would you like to drive into the Brisbane CBD Mr Cowley and have a hearing in person? If you re happy to do that, I m happy to accommodate you.

PN83

MR COWLEY: Not particularly. You re just making me sound like an idiot.

PN84

THE DEPUTY PRESIDENT: No, I m not.

PN85

MR COWLEY: You are.

PN86

THE DEPUTY PRESIDENT: I m trying to - Mr Cowley I m trying to deal with this in the most cost effective manner I can, which is to have ‑ ‑ ‑

PN87

MR COWLEY: Well, how many ways do I need to explain it. I emailed Miempie, and Miempie only. Neil had nothing to do with that conversation, because in the end of these emails, Miempie turned around and said you need to talk to Neil in regards to this.

PN88

THE DEPUTY PRESIDENT: Mr Cowley I m not interested in whether you emailed Mr Hoskin. I m asking you. Mr Cowley, listen to my question, Mr Cowley.

PN89

MR COWLEY: Well then get on with the next one, because I ve answered that one.

PN90

THE DEPUTY PRESIDENT: No, you haven t Mr Cowley. I will not tolerate rudeness, Mr Cowley.

PN91

MR COWLEY: Rude. I m not the one being rude, I can guarantee it.

PN92

THE DEPUTY PRESIDENT: Yes you are. Mr Cowley you ve made an application to the Commission. Conduct yourself with courtesy or I won t deal with it.

PN93

MR COWLEY: (Indistinct response)

PN94

THE DEPUTY PRESIDENT: No, you re not. You re being ‑ ‑ ‑

PN95

MR COWLEY: How many ways do I need to explain?

PN96

THE DEPUTY PRESIDENT: You still haven t answered my question. Try listening to my question and stop thinking about being rude and what you re going to say next. All right? Item 3, look at the document. It s an email from Miempie Coetzer.

PN97

MR COWLEY: Yes.

PN98

THE DEPUTY PRESIDENT: You deny you got it, okay.

PN99

MR COWLEY: That s correct, yes.

PN100

THE DEPUTY PRESIDENT: Go over to item 6.

PN101

MR COWLEY: Yes.

PN102

THE DEPUTY PRESIDENT: The email on the top is from you to Miempie Coetzer. Underneath it is her email to you. So the proposition I m putting to you is that when you sent that email to Miempie, you were responding to her email which is item 3. Because there it is down the bottom of your email.

PN103

MR COWLEY: Well that looks like it s pasted in the email that she s written.

PN104

THE DEPUTY PRESIDENT: So you re denying that you were responding to her email. You re saying that off your own bat, you decided at 4.01 pm to email her about your long service leave.

PN105

MR COWLEY: Yes, because I was actually talking to her on the phone.

PN106

THE DEPUTY PRESIDENT: Okay, thank you. I understand your explanation Mr Cowley, thank you. I don t necessarily accept it, but I understand it. So, thank you for that.

PN107

You re saying that the company s fraudulently cut and pasted Miempie's email on top of yours to make it look like you were responding to her.

PN108

MR COWLEY: Well yes. I can t see any other way it can be done.

PN109

THE DEPUTY PRESIDENT: All right.

PN110

MR COWLEY: Because the emails I ve got don t recollect that.

PN111

THE DEPUTY PRESIDENT: Is there anything else you d like to say in relation to your application?

PN112

MR COWLEY: In what sense?

PN113

THE DEPUTY PRESIDENT: Anything you d like to add to the statutory declaration you made or say in response to the statutory declarations and the material that the respondent has provided.

PN114

MR COWLEY: Yes, yes. There s a couple of things.

PN115

THE DEPUTY PRESIDENT: Yes.

PN116

MR COWLEY: The statutory declaration which Des Heatherton wrote, he stated in that declaration that he sighted a copy of the letter that was sent to me.

PN117

THE DEPUTY PRESIDENT: Yes.

PN118

MR COWLEY: I find that hard to believe when I was talking to Des when this was supposed to have happened. He was in Muswellbrook, New South Wales. If the letter s in Brisbane and Des is in Muswellbrook, how can he sighted that letter?

PN119

THE DEPUTY PRESIDENT: Is Mr Heatherton available Mr Hoskin to answer that question about his statutory declaration?

PN120

MR HOSKIN: He s not actually in the office at the moment. Unfortunately he is out of the office. Just to clarify, he is based in the Brisbane office, so he does sit adjacent to Ms Coetzer who sent the emails off.

PN121

THE DEPUTY PRESIDENT: Do you want to question Mr Heatherton about his statement Mr Cowley?

PN122

MR COWLEY: Yes definitely because I spoke to him and he was in Muswellbrook.

PN123

THE DEPUTY PRESIDENT: Well what we re going to have to do then is have a hearing where everybody attends in person. That s what we re going to have to do.

PN124

MR COWLEY: Well I can t do that, I ve got work commitments.

PN125

THE DEPUTY PRESIDENT: All right. What time do you finish work?

PN126

MR COWLEY: 4 o clock this afternoon.

PN127

THE DEPUTY PRESIDENT: I m happy to have one. Whereabouts do you work?

PN128

MR COWLEY: In Maitland.

PN129

THE DEPUTY PRESIDENT: So you can t get to Brisbane?

PN130

MR COWLEY: Definitely not. 1000 kilometres from Brisbane.

PN131

THE DEPUTY PRESIDENT: All right. Basically you re saying that ‑ ‑ ‑

PN132

MR COWLEY: Well yes, he wrote a stat dec saying that he sighted a copy of the termination letter and I spoke to him, actually I spoke to him that afternoon before I emailed and spoke to Miempie and he said he was in Muswellbrook to go on site.

PN133

THE DEPUTY PRESIDENT: Whether Mr Heatherton saw the email or not, the real issue is whether your employment was terminated due to redundancy or whether your employment was simply terminated because they didn t want to employ you anymore because of issues with your work performance. It s really what it comes down to.

PN134

MR COWLEY: That s right. Like there s a few other things in there. Like, in the stat dec that he wrote, he wrote that my position was filled by other operators. It was only filled by other operators doing overtime. My position still has not been filled.

PN135

THE DEPUTY PRESIDENT: Mr Hoskin what do you have to say with respect to that?‑‑‑

PN136

MR HOSKIN: With respect to both items or just the second.

PN137

THE DEPUTY PRESIDENT: With respect to whether the position has been filled or not.

PN138

MR HOSKIN: As we stated in the statutory declaration, basically the payroll records show that basically another person was employed as an operator from Sunday 18 January and there were 12 operators prior to Mr Cowley s termination and there were 12 operators after his termination. There was a shortage of operators from 30 January onwards which was an unrelated situation whereby there was a resignation of an operator.

PN139

MR COWLEY: My position was not filled.

PN140

THE DEPUTY PRESIDENT: On what basis do you say that Mr Cowley?

PN141

MR COWLEY: Because I ve spoken to several operators out there and I presume Magnus(?) the operator that presuming a few of my positions was already an employee. He was already an employee and he was off sick. So he was already employed on site.

PN142

THE DEPUTY PRESIDENT: Mr Hoskin?

PN143

MR HOSKIN: Mr Bergren, Magnus Bergren, is an employee who commenced on 18 January, went through training the week prior is what I ve been told and he commenced as an operator filling Mr Cowley s role from 18 January onwards.

PN144

MR COWLEY: No. Well why do I have copies of the roster. He was on the roster before I started, that Magnus Bergren or whatever his name is?

PN145

THE DEPUTY PRESIDENT: Do you have copies of the roster Mr Cowley, can you forward them?

PN146

MR COWLEY: Yes.

PN147

MR HOSKIN: I m not denying he was an existing employee, but he was not operating in the role of an operator at Mt Isa Coal and prior to the 18 January when Mr Cowley was employed.

PN148

MR COWLEY: Because he was off sick.

PN149

MR HOSKIN: He was off for personal reasons since October 2014.

PN150

MR COWLEY: That s right, he was not a new employee.

PN151

MR HOSKIN: I didn t say he was a new employee.

PN152

MR COWLEY: Well you were. You said he started on the 18th. He was already employed with the company.

PN153

MR HOSKIN: He was employed with the company. He s been employed by the company since April that year, and he s worked at other projects.

PN154

THE DEPUTY PRESIDENT: Did he only start at that project on the 18th?

PN155

MR COWLEY: No.

PN156

MR HOSKIN: He started at the project in 2014. He then left in October and he commenced as an operator, operating sweepers on Sunday 18 January, is the information I ve been given.

PN157

THE DEPUTY PRESIDENT: When he left, did he resign his employment, or was he on leave?

PN158

MR HOSKIN: No, he was on leave.

PN159

MR COWLEY: Mental institute, wasn t it?

PN160

THE DEPUTY PRESIDENT: Mr Cowley that s completely uncalled for, okay.

PN161

MR COWLEY: He was, that s the truth!

PN162

THE DEPUTY PRESIDENT: All right, Mr Cowley.

PN163

MR COWLEY: That s the truth, that s what we were told all along.

PN164

THE DEPUTY PRESIDENT: All I need to know is that he was on sick leave and he didn t terminate his employment Mr Cowley. That s all I need to know.

PN165

MR COWLEY: Right.

PN166

THE DEPUTY PRESIDENT: The issue really is whether the applicant was replaced and whether you ve provided sufficient information Mr Hoskin to establish that he was replaced by an additional employee. Because if he wasn t replaced, that goes to that his position was redundant.

PN167

MR HOSKIN: Okay, so what information do you need to ‑ ‑ ‑

PN168

THE DEPUTY PRESIDENT: Well, you re raising the objection on the basis that you say that it wasn t a redundancy. What I ve got on the one hand, I ve got an employment separation certificate that says unsatisfactory work performance. I ve got a letter which even on your own version of events, Mr Hoskin, doesn t say anything about - even if I accept the termination letter that you say was the termination letter that was sent, it doesn t say that the applicant is being terminated for - it s just we ve terminated your employment. You won t be required. It doesn t say anything about reasons why the applicant was terminated.

PN169

MR HOSKIN: Sure.

PN170

THE DEPUTY PRESIDENT: There s no documentation of any written or verbal warnings about his work performance.

PN171

MR HOSKIN: The written warning (indistinct) item 1.

PN172

MR COWLEY: I was given no verbal or anything.

PN173

THE DEPUTY PRESIDENT: There s a document here.

PN174

MR HOSKIN: Item 1, it is.

PN175

THE DEPUTY PRESIDENT: Item 1, Mr Cowley. Do you want to look at that.

PN176

MR COWLEY: Hang on, yes, I m just finding it. Item 1, on that same - yes, that s not a verbal, that was a formal and that was no relation to me being put off. That incident was the resolution of an unsatisfactory safety equipment. They had no mine radio fixed intel mine radio in the equipment and the battery went flat. Like I stated.

PN177

THE DEPUTY PRESIDENT: On there it says I acknowledge I ve received formal discipline and have been advised of the standards and the consequences of failure to improve as required .

PN178

MR COWLEY: Where s this?

PN179

THE DEPUTY PRESIDENT: On the second page, Mr Cowley.

PN180

MR COWLEY: Second page?

PN181

THE DEPUTY PRESIDENT: Yes.

PN182

MR COWLEY: Yes, formal discipline. There was no verbal.

PN183

There was no verbal.

PN184

THE DEPUTY PRESIDENT: So you have received a warning about your conduct, Mr Cowley.

PN185

MR COWLEY: No, it wasn t about my conduct, that was about an incident where I was operating the equipment and my hand held two-way radio went flat because they don t have fixed radios in their equipment. I didn t hear an emergency procedure because I didn t have a radio, me battery was flat. That s why I got that incident report.

PN186

THE DEPUTY PRESIDENT: It s actually a warning. See the box that s crossed? It says final written warning.

PN187

MR COWLEY: Because it was a safety breach and they had no. That s the thing. I went to the union about it and it s still getting resolved now. Because all equipment on site must have fixed mine radios and all the Dust-A-Side equipment only has hand held radios which breaches the procedure anyway. That was in respect of that incident.

PN188

THE DEPUTY PRESIDENT: All right, so what occurred after that Mr Hoskin that led to Mr Cowley s dismissal? If that was a final warning, what was the next thing that he did that you say that justified.

PN189

MR COWLEY: Nothing.

PN190

MR HOSKIN: There was the final written warning then it was brought to my attention as I ve put in my statement by Mr Dave Black(?) the senior project manager at the time and Mr Roy Hewitt, they were both stationed on site and they ve voiced their concerns in relation to the reliability at work and his overall performance on several occasions. There was a phone conversation between the three of us in which we agreed to terminate his employment.

PN191

THE DEPUTY PRESIDENT: All right. Is there anything else you want to say Mr Cowley?

PN192

MR COWLEY: Yes, well after that incident, I continued back to work and I continued my next shift. Rory said that if I stepped out of line once more, that the result would be termination, which I never did.

PN193

THE DEPUTY PRESIDENT: All right. Is there anything else anyone wants to say?

PN194

MR HOSKIN: Just a general comment from our side. I mean, obviously we submitted the electronic records and we had a justice of the peace review the electronic records on our computer and basically verify them as originals. We can obviously make those records available in whatever shape or form to the Commission as they see fit.

PN195

THE DEPUTY PRESIDENT: It s up to you what form you make them available in. There s also a letter here Mr Hoskin. The applicant s provided me with the original of the letter, that he says he received on 21 January that says your retrenchment of employment with Dust-A-Side and it s a colour version. It doesn t look anything other than authentic.

PN196

MR HOSKIN: Yes, sure. It s not hard to take a video copy I guess and then jump on Google and modify documents in this day and age and I guess from our perspective we have three people within our business who will sign statutory declarations saying that they ve never seen that document in any shape or form. I guess, we re just concerned as a company that that s the accusation that is being made against us, that we changed the documentation.

PN197

THE DEPUTY PRESIDENT: Do you sign documents with a print-e signature Mr Hoskin, or do you have a scanned signature that documents are signed with?

PN198

MR HOSKIN: There are particular documents that have a scanned signature in it which is the same signature as what is on Mr Cowley s version of the letter and the reason being because it was sent electronically, it wasn t sent as a hard copy. If we send hard copy letters out, then it s sent as a signed original copy.

PN199

MR COWLEY: No, I believe that the payroll has printed that letter out and then posted it to me, that s why it s had that digital - I seeked advised on that and it s been in both the letters, identical and one was posted to me. Because when I was talking to Miempie I asked her to send it out.

PN200

MR HOSKIN: If it was posted to you, you re denying that you received the email on 19 January, is what you re saying.

PN201

MR COWLEY: Yes. Like I stated before.

PN202

MR HOSKIN: Even though you responded to Miempie s email?

PN203

MR COWLEY: No, that wasn t a response to her email.

PN204

MR HOSKIN: Even though we have delivery receipts. Even though we have a Justice of the Peace.

PN205

MR COWLEY: Justice of the Peace is done online too.

PN206

THE DEPUTY PRESIDENT: Did you keep the envelope, the letter came in Mr Cowley?

PN207

MR COWLEY: No, I hadn t, no. As every envelope, I m pretty sure everyone throws it in the bin. I didn t know it would resolve to this. Upon that, yes, I ve also seeked IT advice in trying to get the recorded conversation that Rory and myself had on that morning in regards to the reason that he gave me. I m just trying to get some more information on that.

PN208

THE DEPUTY PRESIDENT: Do you want me to wait to make a decision, until I get some more information on it.

PN209

MR COWLEY: No, don t. No, proceed, do what you ve got to do and if I can get it in time, I ll let you know.

PN210

THE DEPUTY PRESIDENT: All right. Thank you for your time this morning. I ll reserve my decision and I will adjourn this hearing and issue it in due course. Thank you.

PN211

MR HOSKIN: Sorry your Honour, can I just ask a question in relation to the process?

PN212

THE DEPUTY PRESIDENT: Yes, Mr Hoskin.

PN213

MR HOSKIN: From here we will have an outcome issued by Fair Work Australia, or will there be a further ‑ ‑ ‑

PN214

THE DEPUTY PRESIDENT: No, there will be an outcome.

PN215

MR HOSKIN: Okay, there will be an outcome. I m not sure how it affects it, I guess the company is obviously seeking external advice currently as to whether or not it raises criminal proceedings against Mr Cowley in relation to documentation. I want to bring it to your attention.

PN216

MR COWLEY: I m seeking the same as well.

PN217

THE DEPUTY PRESIDENT: I m sure you will Mr Cowley, and I m sure the police have got better things to do. On that basis Mr Hoskin, if the company wants to bring criminal proceedings, that s a matter for you. I just have to determine whether Mr Cowley was retrenched or whether he was dismissed for other reasons such that he has an entitlement to long service leave or not. Firstly, I have to determine whether I have the power to do that.

PN218

MR COWLEY: One more thing Miss, please. Also he stated in the declaration that I was doing this for a financial gain. Upon that, this is leave I ve accrued over my whole mining career that I ve earnt through the long service leave. There s no financial gain there. There s leave that I ve got and I have accrued under my LSL core account.

PN219

THE DEPUTY PRESIDENT: But it s whether you re entitled to it at this point in time Mr Cowley, on the basis of the reasons for your dismissal. So you re not going to lose it, it s just whether you re entitled to it now, or whether you have to wait longer to get it. That s the only issue.

PN220

MR COWLEY: Yes, that s exactly right.

PN221

THE DEPUTY PRESIDENT: In any event, I will reserve my decision. I ll issue it in due course. Good morning.

PN222

MR COWLEY: Thank you. Bye.

ADJOURNED INDEFINITELY [10.42 AM]