C2015/3293, Transcript of Proceedings [2015] FWCTrans 571 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052515

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DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

C2015/3293

s.604 - Appeal of decisions

Bernardi v Andrew A and Tracy L Hall
(C2015/3293)

Melbourne

12.46 PM, TUESDAY, 29 SEPTEMBER 2015

PN1

DEPUTY PRESIDENT HAMILTON: Right. I will take appearances, please. Mr Bernardi, are you there?

PN2

MR BERNARDI: Yes.

PN3

DEPUTY PRESIDENT HAMILTON: Can you identify yourself.

PN4

MR J BERNARDI: John Bernardi.

PN5

DEPUTY PRESIDENT HAMILTON: Thank you very much. And the respondent?

PN6

MS T HALL: Tracey Lee Hall.

PN7

MR A HALL: Andrew Hall.

PN8

DEPUTY PRESIDENT HAMILTON: Thanks very much. Right. Directions have been issued in this matter in the standard form. And pursuant to those directions, written submissions have been filed by the appellant. Now is the opportunity to deal with the issue of whether the commission should grant permission to appeal by way of oral submissions. The directions state, and I quote:

PN9

The oral submissions of any party at the hearing must not exceed one half hour in length.

PN10

So, Mr Bernardi, this is your chance to put your oral submissions. Go ahead. On the issue of permission to appeal: should we grant permission to appeal, and why?

PN11

MR BERNARDI: I submit that you should grant permission to appeal: that the legal principles applied in the decision were dis-harmonious with existing law; that it raises matters of general importance, particularly in regards to the apprenticeship and how that relates to abandonment; abandonment in general; (indistinct) done in the written submission there; there are also evidentiary principles.

PN12

The decision seems to, in paragraph 12 of the decision, that the third party documents from State Training Services and other related documents there were not relevant to the matter, whereas Lawler VP in the appeal book on page 71, when granting the orders to produce those documents, that there was a legitimate forensic purpose in these documents, particularly where the parties' factual positions are so starkly inconsistent with one another, therefore allowed one side to corroborate all the others - the versions of events.

PN13

The decision seems to not take that opportunity and rely solely on the witness statements of the respondent. The decision seems to set a rather disingenuous or not quite - an inconsistent precedent with regards to an employer can send an employee away and then claim abandonment, without notifying the employee in any way, which - for instance, in Sandic, for instance, and Lloyd, there was no - there needs to be some sort of genuine effort to communicate their position, if that really was at that period of time, and provide the opportunity for correct - or clarify the situation.

PN14

Additionally, evidence within the documentary evidence doesn't support the decision, and it's a significant error that I abandoned the job or intended to abandon the job; that the paradoxical situation where my attendance at TAFE, which is only permitted while I'm employed, is evidence that I intended to abandon the job.

PN15

DEPUTY PRESIDENT HAMILTON: All right. I follow that. Is that your submission, Mr Bernardi?

PN16

MR BERNARDI: I have - I suppose - could I ask whether the written submission makes sense to the ‑ ‑ ‑

PN17

DEPUTY PRESIDENT HAMILTON: I will mark your written submission. the applicant's outline of submissions will be exhibit B1.

EXHIBIT #B1 APPLICANT'S OUTLINE OF SUBMISSIONS

PN18

DEPUTY PRESIDENT HAMILTON: Thank you, Mr Bernardi. We've read those submissions. There's no need to repeat what's in them.

PN19

MR BERNARDI: Yes.

PN20

DEPUTY PRESIDENT HAMILTON: Is there anything else you need to say?

PN21

MR BERNARDI: I would also like to raise that documents and evidence submitted to - for consideration appear in the decision to have been discredited solely from the respondent's denials of the documents or disagreement with the documents, whereas it leaves a sort of - a position where what worth are any of the documents if they can't be presented and considered on their merit and can be discredited just because the other party doesn't like what is in the contents of those documents?

PN22

In reference to, for instance, the signed contract that the respondents claim was not - that's fake, the respondents were - sought a subpoena for the original digital file and provided the opportunity to have it forensically assessed, and the results weren't submitted or provided, would suggest that that document was genuine. Additionally, with the contents of the documents being consistent, that it could be because the respondents no longer wished to agree with the document. It seems it needed some greater weight than just the respondent's denial of the document.

PN23

A few of the cases that this decision is inconsistent with (indistinct) which was mentioned, where the employee evidences an intention to no longer continue employment; yet the evidence submitted, including emails from the Halls about requiring myself to attend meetings and so on, happening in July, well after the alleged abandonment, as well as directions to attend these meetings, which are within pages 133 to 136 of the appeal book, are inconsistent with the concept that I had abandoned a job or were no longer wishing to be employed.

PN24

The decision didn't consider - sorry. As I think I said before, with Sandic there were no clear statements from the employer to the employee at any time that there was an alteration in the direction of where I should be attending or where I should be. There's no statement whatsoever that I was at risk of being considered abandoning my job. The last call in June was in response to a conversation with Mrs Hall, asking me to call Mr Hall. The voicemail is not denied that it occurred, although the respondents claim that the voicemail contained no content.

PN25

No other calls from the respondents occurred until I contacted again on returning to Sydney. There's no - as the respondents are a small business, they're based out of their home, there's no, sort of, opportunity otherwise that I could - other than attending the meetings as directed, or as the usual cases where Mr Hall informed where and when I should be presenting for work the night before or the day of it, that ‑ ‑ ‑

PN26

DEPUTY PRESIDENT HAMILTON: You agree, don't you, you were expected to return to work on 2 June. That's correct, isn't it?

PN27

MR BERNARDI: No, I do not.

PN28

DEPUTY PRESIDENT HAMILTON: All right.

PN29

MR BERNARDI: And the evidence does not support that.

PN30

DEPUTY PRESIDENT HAMILTON: All right. Thank you.

PN31

MR BERNARDI: That goes on to Lloyd, where the respondents did not raise their issues or make a genuine effort to contact or inform any party; that includes myself, the TAFE, and the State Training Authority, that there was any issue with my continued attendance at the TAFE; particularly given that on - sorry. Page 363 has a - this document has come from State Training Services and is part of the subpoenaed documents that were marked - where Mr Hall has signed the student administration plan on 14/6/14, which suggests that there wasn't an issue at that time.

PN32

This combines with the correspondence between Mrs Hall and Gordana on page 381 where Gordana - and this is in contrast to the statement made by the respondents - Gordana called - or contacted to follow up regarding a lost piece of mail that arrived. And from what can be gained from that correspondence, that Mrs Hall made a request to change the RTO to a New South Wales RTO, when they confirm a time for such a meeting.

PN33

That again suggests that there was even ongoing employment relationship at that time, and there had been no further correspondence from the respondents till I presented in Sydney, as originally was expected, that there was any issue with my attendance at TAFE or that I wasn't meant to be there under anyone's point of view.

PN34

Searle relates to the termination of employment and the requirements that I needed to have those competencies, given how - the work that I was required to attend, which was why I was, I guess, needed to attend TAFE. It also goes into the context which is in contrast to the decision where the context around the time is such as that the employer was in breach of the employment contract with regards to the apprenticeship requirements.

PN35

With regards to not paying for work for a number of weeks, I think six or seven weeks by that point when the alleged abandonment happened. And I wasn't paid from April - for work completed after the middle of April, which is well in advance of there being any issue with my attendance at TAFE. It's inconsistent within this decision that the employer was doing the right thing and was making a genuine effort to do the right thing.

PN36

There's the LHMWU Union - sorry - v Video City (2010). The Halls in one part considered that, and part of this case does with regards to the communication by the respondents to the employee who allegedly abandoned that. It's not reasonable to assume such an abandonment occurred, but make a genuine effort to clarify the situation. I understand that we wouldn't be in this situation if the respondents made that effort at that period of time.

PN37

I note that in emails on page 147 contains where the Halls have, for the first time, raised the issue that maybe I'm not - to quote, "It appears you've quit working for us. If this is so, please let me know." And my response is that, "No. No, I haven't." But that it appeared that given Mr Hall was not providing any sort of direction to attend to work, that I appeared that Andrew did not want me to be employed.

PN38

Also the language of those emails also support that there was, at least, an understanding of an employment relationship, and that at no prior point had the respondents genuinely believed that I had abandoned my job. And again, with language such as on page 136 on 7 July, the first time that I was informed that there was a meeting while I was on annual leave in Queensland. That was prior booked, paid for all in advance, that was agreed to by Mr Hall as he hadn't organised work for the period of time, as well as there was no reason not to earlier in the year.

PN39

This meeting was arranged without informing that I was meant to be there; page 136, where Mrs Hall was expecting I would be in attendance. That's not language that you would expect from someone who wasn't an employee at that time or an employer that didn't consider I was an employee at the time.

PN40

This is again further consistent with the respondent's form F3 where on page 48 there's no indication - apparently we mutually terminated or employment relationship at the end of 31 July, which I don't agree with - but that it was solely about ending the apprenticeship and not the employment.

PN41

In CJM Wright v DFCS in 2012 it was found that there wasn't abandonment, because when the issue was first communicated to the other party - to the employee in writing - it was raised - the employee responded to deny that they were not intending to abandon their job; they still wanted to - still considered themselves an employee. There was no intention there. As I just spoke before there of that written pronunciation where I know I was fully intending to be still employed, still part of the apprenticeship. Finally in Searle v Moly Mines, the intention to abandon will not be lightly inferred.

PN42

There hasn't been a single case that I could find where abandonment has been sustained where an employer has not expressly and communicated to the employee that they were at risk or that they were of the opinion, and providing that opportunity for the employee to respond. The decision didn't consider - and that in stark contrast to these cases where they haven't considered the - the respondents never - and acknowledged that they didn't communicate the risk of termination.

PN43

They didn't inform anyone that I wasn't meant to be there. For instance, they contacted TAFE on, I think, 16 June; Mrs Hall did. She didn't raise the issue that I wasn't meant to be there and that there was no - in a way that the TAFE would have gone, "Well, no, John, you're not meant to be here." The TAFE continued to expect me to complete the exams and assessments for the period of time that I was there until the return.

PN44

The decision hasn't considered that the respondents failed to provide any other work direction other than those meetings. In fact, the decision states that it's not considered an employment relationship where I only attended meetings and not practical work; whereas employers not providing - or providing direction for where to attend, where to go, because I can't loiter out the front of their private residence expecting something to happen, particularly given the long history of being directed to what's going to be - where to present, what time, in advance; that there isn't that reasonableness.

PN45

DEPUTY PRESIDENT HAMILTON: Mr Bernardi, you have half an hour for oral submissions. We're coming to the end of that half hour, so just focus your mind on what you need to say. Thank you.

PN46

MR BERNARDI: I guess the - I feel it is - as it had been listed in my written submission, there are significant errors of fact that create a situation where there's an opportunity to have some sort of independent situation - evidence that can allow the witness statements to be assessed, and that did not - and that wasn't considered in the decision, in making the determination that the application was to be dismissed on jurisdictional grounds, as I had not been dismissed, and that I had abandoned my job.

PN47

So I guess in that regard it is inconsistent with the case law - significantly inconsistent - and the significant errors of fact where the evidence exists that's independent that allows credibility to be assessed, was not considered or not weighed correctly in the consideration, and that creates those - takes away due process; takes away an opportunity to - I guess it doesn't allow a fair opportunity for the employee to act appropriately, I guess, and know what's going on. Yes, I think that's ‑ ‑ ‑

PN48

DEPUTY PRESIDENT HAMILTON: That's your submission, Mr Bernardi?

PN49

MR BERNARDI: That's it, yes.

PN50

DEPUTY PRESIDENT HAMILTON: Thanks very much.

PN51

MR BERNARDI: Yes, that is.

PN52

DEPUTY PRESIDENT HAMILTON: Thank you very much. All right. Thank you. We don't need to hear from the respondent. We refuse permission to appeal. Our reasons for decision will be issued as soon as possible. Thank you very much. This matter is adjourned.

ADJOURNED INDEFINITELY [1.11 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 APPLICANT'S OUTLINE OF SUBMISSIONS....................... PN17