C2015/4952, Transcript of Proceedings [2015] FWCTrans 573 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052509

---

DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

DEPUTY PRESIDENT HAMILTON

C2015/4952

s.604 - Appeal of decisions

Bank of Sydney Ltd v Repici
(C2015/4952)

Melbourne

10.07 AM, TUESDAY, 29 SEPTEMBER 2015

PN1

DEPUTY PRESIDENT HAMILTON: I'll take appearances in Sydney please.

PN2

MS KHOURY: Ms Khoury for the applicant, Bank of Sydney.

PN3

DEPUTY PRESIDENT HAMILTON: Thank you very much. There's no appearances in Melbourne. We've checked the files and the applicant's been properly notified. This is the permission to appeal roster. Directions have been issued. The appellant in Sydney has half an hour to put oral submissions. We've read the written submissions you've lodged and perhaps we'll mark those. These are submissions dated 15 September 2015. That will be exhibit B1.

EXHIBIT #B1 SUBMISSIONS OF THE APPLICANT DATED 15/09/2015

PN4

DEPUTY PRESIDENT HAMILTON: Is there anything else we need to mark? No? Permission to be represented pursuant to section 596 has been dealt with in writing, has it not in Sydney?

PN5

MS KHOURY: I'm the HR representative of the company.

PN6

DEPUTY PRESIDENT HAMILTON: My apologies, thank you. Is there anything else we need to mark apart from your submission exhibit B1?

PN7

MS KHOURY: Nothing that comes to mind. I'm here today also well to also seek leave to amend the notice of appeal and admit new evidence, but there's nothing on the table for you to mark at this stage.

PN8

DEPUTY PRESIDENT HAMILTON: Now is your opportunity to put your oral submissions. The directions indicate that the parties have a half hour to put oral submissions, so go ahead.

PN9

MS KHOURY: Thank you, your Honour. Today we are here to submit to the Full Bench that permission to appeal should be granted against the decision of Cribb C made on 8 July and the further decision on 21 July. We submit that firstly it is in the public interest and secondly that there are significant errors of fact. We have provided submissions in support of the notice of appeal and are here to elaborate on these submissions today. To the extent of time made available to us, we will be aiming to focus on the more pertinent matters and we submit that due to significant errors of fact, which will be elaborated on now, inconsistencies with recent case law, it is in the public interest to grant permission to appeal.

PN10

The foundations that Cribb C relied on to hold that the dismissal was unfair, was that the respondent did not have an opportunity to respond and we submit that the underlying reasons for this finding were incorrect and not based on the evidence. The factors relied on in error, we say, were not insignificant to reach the overall decision and we submit that a different decision should and would have been made, had these significant errors of fact not been made.

PN11

The first matter that we would like to turn the Full Bench's attention to is the payment in lieu of notice and the calculation of the compensation. In determining the compensation awarded, Cribb C did not deduct one month paid in lieu of notice to the respondent on termination, in the further decision, even though she had stated at paragraph 66 of the decision that she would take this into account, there was no mention of further decision.

PN12

DEPUTY PRESIDENT HAMILTON: On that issue, what's the remedy you seek? Do you seek, say if we uphold you on that ground, is the remedy you seek that we reduce the amount of compensation by that amount? Is that the remedy?

PN13

MS KHOURY: That's correct, your Honour. We're here today obviously, to have the decision overturned but in the sense of this error, that I'm referring to in lieu of notice, we're asking the Full Bench to deduct the month that was paid in lieu of notice to the respondent.

PN14

DEPUTY PRESIDENT HAMILTON: So that's a yes, I think.

PN15

MS KHOURY: Yes.

PN16

DEPUTY PRESIDENT HAMILTON: Thank you, go ahead, next.

PN17

MS KHOURY: We say that this approach resulted in a failure by Cribb C to apply section 392(2)(c) of the Fair Work Act to consider the remuneration received by the respondent on termination. We say this approach is disharmonious with recent decision that have deducted the payment in lieu of notice made. We've included some cases in our submissions. We say that this error made is in the public interests to rectify.

PN18

In terms of the finding of procedural unfairness, the underlying reason of Cribb C's finding that the respondent was unfairly dismissed, was that the respondent didn't have an opportunity to respond. In reaching this conclusion, we submit that the conclusion was only reached as Cribb C mistook the facts and failed to take material considerations into account.

PN19

Moreover, in finding that dismissal was unfair, especially procedurally unfair, we refer you to 2.2 of the submissions of permission to appeal where the uncontested evidence before Cribb C was that the applicant met with the respondent on three occasions before dismissing the employee and in fact the respondent at each meeting was provided with an opportunity to respond in those three meetings. We submit that Cribb C failed to take these material considerations into account.

PN20

To highlight this mistake in facts and disharmony of the law, we refer you to the decision of Royal Melbourne Institute of Technology v Asher which is at tab 17 of the folder with the list of authorities. In this decision it is citing Gibson v Bosmac Pty Limited and at paragraph 26 it says:

PN21

An employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particularly formality. It is intended to be applied in a practical common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.

PN22

We are saying that the Commissioner did not apply that or reference that as she should have. We do not really see how any further opportunity to respond would have improved the process or given the respondent any further opportunity to respond.

PN23

It is disharmonious with the law and we refer you to the decision of Damien Lennon v Hallmark Editions which is at tab 18 of the authorities book, on page 6, paragraph 1 where it's mentioned:

PN24

It is difficult to see how an opportunity to respond would have improved the decision making process of the employer in any respect or given the employee much greater degree of a voice than he already had.

PN25

Moving on from this, the finding by Cribb C at paragraphs 20 to 23 of the decision, the respondent was not given an opportunity to respond and not afforded with fairness. We say it was not supported by the evidence. Firstly, in relation to the opportunity to review the document which Cribb C found that the respondent did not. We refer you to the Notice of Appeal 2.1 subparagraph 4 which highlights the evidence of both the applicant and the respondent together that the opportunity to respond was in fact afforded.

PN26

If you turn to the appeal book, page 138, paragraph 1071 of the transcript of the hearing, the Commissioner actually asked Mr Kelidis. Now Mr Kelidis was the manager in question that was involved with the termination of the respondent's employment. Commissioner Cribb asked him "did you show her all the documents". He said "I had them all in front of her".

PN27

Then at paragraph number 1076, I had asked Mr Kelidis "Did she have the opportunity to go through the pile" and he replied "Yes, of course". Ms Repici herself also gave this evidence. If you refer to page 52 of the appeal book at paragraph number 154 onwards. I asked Ms Repici on the stand "You have all of them in front of you" as in the document, and she replied "Yes." Then at paragraph 156 I asked her about looking through them, and she said "I basically quickly went through them to see what they were." Then at 157 she said "I probably got through the first ten." So we say that this evidence shows that she did have the opportunity to respond and to review the documents.

PN28

From this we say it is clear on the facts that Cribb C mistook that the respondent did have the opportunity to go through the documents and that this evidence before her directly contradicted the finding that there was no opportunity to go through the documents. We submit that this finding was counter-intuitive given the evidence that was before the Commission.

PN29

COMMISSIONER ROE: She doesn't find there was no opportunity.

PN30

MS KHOURY: If you go to the decision at - in my understanding at paragraph 18 onwards, up until 23, so under the heading of opportunity to respond, when she was considering section 387(c), that was the only grounds in the decision that she found that there had been procedural unfairness afforded to the respondent. If you go to paragraph 20 - - -

PN31

COMMISSIONER ROE: She finds that there was not a proper opportunity, that's paragraph 21. She doesn't find there was no opportunity. She finds there wasn't a proper opportunity.

PN32

MS KHOURY: Yes, your Honour.

PN33

COMMISSIONER ROE: The Commissioner has taken into account a number of things, including that Ms Repici was upset. There was a number of things that she takes into account in reaching a conclusion that there wasn't a proper opportunity, but she doesn't say there was no opportunity. Given that she didn't find that there was no opportunity, why is her finding inconsistent with the references that you've raised in the transcript?

PN34

MS KHOURY: I should have rephrased that, sorry your Honour. She was saying that there was a genuine opportunity to respond. There was no genuine opportunity to respond and we are giving you the evidence of why there was an opportunity to respond to this evidence, sorry - - -

PN35

COMMISSIONER ROE: That's fine, I'm just making the point that she doesn't find that there no opportunity.

PN36

MS KHOURY: Yes.

PN37

COMMISSIONER ROE: She's evaluating whether there was a proper or a genuine opportunity and that's the conclusion that she reached, not that there was no opportunity. It seems to me the evidence that you're going to, is evidence which she clearly did take into account because it's a very comprehensive decision and she actually goes through in quite a lot of detail what the witness has said.

PN38

MS KHOURY: Yes, your Honour. We're saying that while she did go through that detail, and she actually found - I should have rephrased that, but there was not a genuine opportunity to respond. We say that there was a genuine opportunity to respond because of all of these factors, because of the three meetings, because of the opportunities that were provided to her, because of the documents, because of what she said in her evidence that the documents were all in front of her.

PN39

Part of the reason of why that she found that there was no genuine opportunity to respond, was that she said that she did not have an opportunity to go through all of the documents, which we say is incorrect. She did have an opportunity to go through all of the documents.

PN40

DEPUTY PRESIDENT HAMILTON: I think you've made your point. You have a number of other issues you need to cover, so just reminding that you need to.

PN41

MS KHOURY: Yes, of course. In her evidence as well, she admitted that the documents were before her. This error we say, is a significant error and if that significant error was not made, then a different we say, should have been made. We highlight this in the final submissions as well, the first instance about the opportunity to review the documents.

PN42

The next thing we want to turn to is the evidence on changing desks. Commissioner Cribb's finding that the respondent moved desks and that no evidence contradicted this as stated in her decision at 44, was not supported by the evidence. We take you to page 143 of the appeal book which is at paragraph number 1138 which is the evidence of Mr Kelidis to the Commission.

PN43

The Commissioner raised the point about her moving desks at 1137 and then at 1138, Mr Kelidis mentioned "Okay, because I wasn't aware of this, this is the first time I hear that claim now." We say this evidence shows that Mr Kelidis was not aware of the respondent moving desks and it was the first time that he heard it. It was not as Cribb C interpreted it as that he agreed with the statement and that he did not say anything else. We say that she has directly misinterpreted that.

PN44

No evidence contradicted this when at paragraph 1138 Mr Kelidis specifically mentioned that he was not aware of this and it was the first time he had heard this. We say this is an error and it also goes directly to the finding of credibility which is also linked to that error.

PN45

We take you also to the final submissions where we specifically mentioned at page 7 and 8 that Mr Kelidis did not recall the applicant moving desks and that it was incorrect that she was moving desks. This was specifically mentioned in the final submissions and directly goes against as well, Cribb C's findings that there was no evidence to contradict this.

PN46

Commissioner Cribb even acknowledged at paragraph 34 of her own decision that the evidence of her moving desks was a contention that was incorrect by the applicant. She actually acknowledged that we did not support that position, even though later on she found that we didn't contradict it.

PN47

This was not insignificant in the decision, given that at paragraph 44 of the decision in her conclusions, while acknowledging that there was a valid reason for termination, Cribb C specifically mentions that the respondent was in the process of moving desks which appears to be used as a factor to directly determine that the respondent was not accorded procedural fairness during the disciplinary process. We say that it is in the public interest that a Commissioner is not mistaken by facts leading to a significant error.

PN48

DEPUTY PRESIDENT HAMILTON: On that point, evidence was given at first instance by the applicant that she was moving desks. That was evidence that you were aware of because your witness was cross-examined on it. You didn't ask for the opportunity to put further evidence or an adjournment or anything of the sort, did you?

PN49

MS KHOURY: I didn't your Honour, but in my belief in actually being at the conference, and Mr Kelidis making a direct statement that the respondent did not move desks, to me it sounded clear that his evidence was that he contradicted that statement of hers. I was no position to - - -

PN50

DEPUTY PRESIDENT GOOLEY: But he doesn't say that, he says he wasn't aware of this. He didn't say that it didn't happen, he just simply said "I wasn't aware of it. It's the first time I've heard of this claim."

PN51

COMMISSIONER ROE: Not contradicting it.

PN52

DEPUTY PRESIDENT GOOLEY: That's not contradicting her, that's simply saying, well I wasn't aware. That doesn't say it didn't happen.

PN53

MS KHOURY: Your Honour, but he also mentioned after that, it's the first time I hear that claim now. While I understand your point, he also didn't go ahead and say also that it did happen. He didn't say it in the clearest fashion, but he didn't say it did happen. He said this is the first time I hear that claim now, which to me, in reading that, I believe that he confirms what I was saying. When I tried to raise this with Cribb C as well, she actually said that this confirms the statement that you made Ms Khoury with his position.

PN54

DEPUTY PRESIDENT HAMILTON: Just a minute, at paragraph 44 she says and I quote - you have to quote her directly when you refer to the decision. Don't sort of do your own version of it, you have to quote her directly.

PN55

MS KHOURY: Yes.

PN56

DEPUTY PRESIDENT HAMILTON: At 44 she says this "None of the respondent's witnesses contradicted Ms Repici's statement that she was changing desks at the time." Now, that's correct, isn't it?

PN57

MS KHOURY: Yes.

PN58

DEPUTY PRESIDENT HAMILTON: None of your witnesses contradicted that, did they?

PN59

MS KHOURY: My submission is that Mr Kelidis did contradict that evidence. If he didn't contradict that evidence, he would have said, yes she did move desks.

PN60

DEPUTY PRESIDENT HAMILTON: Alright, so that's your view, is it? That's your view is it?

PN61

MS KHOURY: That's my view that I'm submitting to the Commission.

PN62

DEPUTY PRESIDENT HAMILTON: Thank you for that, thank you.

PN63

MS KHOURY: No problem. If I also turn you to paragraph 1142 and 1143, when I mentioned that this wasn't in the submissions.

PN64

DEPUTY PRESIDENT HAMILTON: Sorry, this is of transcript, is it, 1143 of transcript?

PN65

MS KHOURY: Sorry, 1145 at page 144 of the appeal book and the Commissioner specifically said "Your instructions are correct Mr Kelidis, because Mr Kelidis had just said exactly what you said to me this morning." To me, in my understanding was that Cribb C understood that we did not agree with this evidence.

PN66

Moving on from that, your Honour, we say that this was not insignificant to reaching her conclusion and that the process of moving desks had implications on the procedural fairness element, leading to a significant error. Further to this, the matter of moving desks was not raised before any pleadings or during any pre-determination meetings which was acknowledged by Cribb C. It was still used at 44 and 47 of the decision as reasons why the dismissal was unfair. Commissioner Cribb used this factor in her reasoning as a measure to justify the respondent's actions even though it was something that was not known to the applicant at the time of terminating the employment.

PN67

This was never raised, the part about moving desks, ever during the disciplinary process or during any of the meetings, but Cribb C used this in her decision as part of the element of finding unfairness. We submit that this is a significant error to take into account, given that this did not form part of the termination process.

PN68

DEPUTY PRESIDENT HAMILTON: You accept, don't you, that the Commission has to determine the manner, not on what was said to you during the disciplinary process, but on the evidence put during the hearing. You accept that, don't you?

PN69

MS KHOURY: 100 percent, your Honour, but what I'm saying is that - - -

PN70

DEPUTY PRESIDENT HAMILTON: Can you point me to a statement by your witness which contradicts the applicant's evidence that she was moving desks? Show me the evidence.

PN71

MS KHOURY: That's the problem, your Honour, because it was never raised in any of the pleadings, it was only raised on the day of the hearing, so he didn't have an opportunity to say that. We were not put on notice.

PN72

DEPUTY PRESIDENT HAMILTON: You had the opportunity on the day of hearing. You heard the evidence, your witness said that he didn't know. You had the opportunity to seek further evidence or anything of the sort, and you didn't do any of that, did you?

PN73

MS KHOURY: I didn't your Honour, but I was also under the impression that it was clear from Mr Kelidis' statement that she was not moving, and this contradicted that.

PN74

DEPUTY PRESIDENT HAMILTON: Just show me, what paragraph number of the transcript is it, where he says that? Show me.

PN75

MS KHOURY: At 1138.

PN76

DEPUTY PRESIDENT HAMILTON: 1138. At 1138 he says this "Because I wasn't aware of this, it's the first time I hear this, that claim now." That's a statement that he doesn't know, isn't it? It's not a statement that she's wrong, is it?

PN77

MS KHOURY: It's a statement that he's not aware of that claim. He's not aware that it happened.

PN78

DEPUTY PRESIDENT HAMILTON: Yes, but he doesn't contradict her. He doesn't say no, she's wrong, does he?

PN79

MS KHOURY: He doesn't specifically, but I would say he does indirectly.

PN80

DEPUTY PRESIDENT HAMILTON: I think we've pursued that as far as we can. I thank you for that.

PN81

MS KHOURY: No problem, so now turning on the failure of Cribb C to consider if there was a fair go all around. We say that she failed to take material considerations into account, being that the payment in lieu of notice was made, three meetings before termination and that there was a valid reason to terminate due to a serious breach of procedures and 15 and 47 of the decision.

PN82

We say these are material considerations that should have been taken into account and we refer you to the decision of Saws v KDR at paragraphs 91 to 93 where payment in lieu of notice was taken into account to mitigate that there was a fair go all around. We refer you to the decision of Damien Lennon v Hallmark Editions at tab 18 of authorities at page 6, paragraph 21 which refers to:

PN83

It's difficult to see how any further opportunity to respond would have improved the decision making in any respect. Surely the main or significant purposes of opportunity to respond was that he already had a greater voice.

PN84

We refer you to the decision of Rose v Telstra Corporation Limited and Spot Ambrose v Mulherin at tab 20, page 7, paragraph 35 that there had been a fair go all around and that regard to determining the termination was not harsh, unjust or unreasonable. In Chui Wong v Honey Welds at tab 3, pages 9 and 10, paragraph 41 and 46, that there were procedural inefficiencies do not outweigh my conclusions as to a valid reason.

PN85

Furthermore, another material consideration failed to be taken into account by Cribb C was that the attendance of compliance training weeks before the termination of employment where the respondent herself admitted in evidence at paragraph 94, appeal book page 46 that at the training, I asked her what were you advised would happen due to serious breaches and she said that people would have their employment terminated. This specific fact and circumstance, specific to this matter, should have been taken into account and we say that it did not.

PN86

Next, the decision maker did not have the opportunity to review the documents. This was a major consideration of Cribb C at 20 to 21 of the decision which we say contributed directly to her not having the opportunity to respond and we say that is incorrect. In reaching the conclusion, the respondent failed to take material considerations into account, being that Ms Garty, the head of retail banking, received a breakdown of a comprehensive list of emails from her manager Mr Kelidis. The efforts and checks undertaken by Mr Kelidis to ensure the documents were not copies and were related to current accounts.

PN87

This failure was a significant error in the approach that led the Commissioner to being guided about the relevant fact that Ms Garty herself did not view the documents. We submit that this is irrelevant. Mr Kelidis, in his witness statement, at appeal book page 233 at paragraphs 14, listed the documents involved. He also talks about asking the manager to put the information together and that he made a record of all the documents and then emailed them to her.

PN88

Then in his evidentiary evidence at appeal book page 133, at paragraph number 1014, he said that "I went through them and checked them against the system to make sure that the accounts were open and they were existing accounts and I went back to the filing to make sure that they were not copies." They're the checks that he did.

PN89

We say that while she may construe this conclusion that the decision maker did not have an opportunity to review the documents, a lot of steps were not taken into account of what actually occurred and what was communicated. Ms Garty herself, at paragraph 1343, at appeal book page 160 to 161, mentions how Mr Kelidis itemised the documents and types of document they were dealing with and it was a broken down type of documents that was detailed. Then in her actual statement as well, she listed that the documents had been received, a full list and a break down.

PN90

We submit that it was clear on the process of determining the documents was rigorous and the decision maker did not view the document was a relevant consideration by Cribb C.

PN91

Similarly, and furthermore, in concluding that Mr Kelidis did not know the specific number of documents that related to the respondent where Cribb C mentions this in her decision, that there was no opportunity to respond and unfairness. We say that Mr Kelidis confirmed that at least 80 percent of the documents were related to the respondent and Cribb C failed to take this into account in considering that not all of the documents that were found were actually attributed directly to her. 25 out of the 32 were attributed to her, which is 80 percent.

PN92

Furthermore, we submit and draw attention to the finding of Cribb C that the respondent worked in a busy branch, where the specific evidence in relation to this was actually before the Commission as well, that Ms Garty mentioned, at paragraph 1372, appeal book page 164, that it was not the level of foot traffic and tasks to give bankers compared to any other major banks, and it certainly doesn't compare. Mr Kelidis, at paragraph 1282 mentioned that there's a lot of downtime in the branch. Ms Repici herself, the respondent, mentioned that it was not a good enough excuse that she was busy, at paragraph number 503.

PN93

We say these are all material considerations that should have been taken into account, which were not. We also say in relation to the finding of Cribb C that the respondent was a credible witness, she failed to take into account that during the evidence, she actually lied and said that all the documents would not have been lost and they all would have been scanned and kept on the system somewhere. She mentions this at 95 and 395, specifically that there was no loss to the bank as they would have been saved and scanned on the system.

PN94

Commissioner Cribb failed to take into account the material considerations and evidence before the court of Mr Kelidis, Ms Garty and Ms Effie Carramalis that this was not the case. Ms Carramalis mentioned that there were no copies whatsoever anywhere at paragraph 890. At paragraph 891 that they were not stored anywhere else and at paragraph 958, that only the signature is scanned and at paragraph 961, the only documentation is we have. Mr Kelidis at paragraph 1010 that there were no copies anywhere else and that they were not scanned, only the signatures were kept. At paragraph 1013, that there were no soft copies of the documents that were disposed of. Ms Garty at 1448 that we are an older bank and everything was online and we rely on customer files.

PN95

Commissioner Cribb made this conclusion that she was a credible witness even though she had lied and all the witnesses had disproved this.

PN96

DEPUTY PRESIDENT HAMILTON: I just remind you of the time.

PN97

COMMISSIONER ROE: It's a pretty extreme thing to say that she lied. I just don't see the basis for that, but I've heard what you've said about - - -

PN98

DEPUTY PRESIDENT GOOLEY: Did you make submission to Cribb C at first instance that she should have found the applicant lied in her evidence?

PN99

MS KHOURY: I did refer to it in final submissions that she was not a credible witness.

PN100

DEPUTY PRESIDENT GOOLEY: Can you tell me where you did that? Yes, I see.

PN101

MS KHOURY: Just moving forward for time. We submit that in applying Sprigg, the Commissioner should have also applied Smith & Ors and reduced the amount of compensation because it was not fair. We say that in Smith & Ors, if an amount is clearly accepted as adequate it should be considered rather than just applying Sprigg outright. We seek leave to amend the notice of appeal because of this.

PN102

We also say that it is not fair that we were not provided with the opportunity to refer to the evidence of Ms Repici when she provided further evidence that she had applied for jobs. We were denied the opportunity, even though we put it in writing to respond to this further evidence that was requested after the decision was made. This evidence actually showed that she was applying for the same job multiple times. If you go to page 262 of the appeal book, you will see that she applied for the same job two times in a row. She would sometimes not even touch her resume. There were actually only 27 jobs that she applied for, not 35 as Cribb C found in her decision, so we refer you to that.

PN103

In terms of the public interest we say that significant errors were made that it should not have been an automatic finding that dismissal was unfair because a valid reason was found and that procedural deficiencies and misconduct, especially where it was found that there was a valid reason for termination. There has been recent case law that has found that even though there was some procedural aspect of unfairness, there was a valid reason and the dismissal should have been made. There's also been decisions on that even though there was a serious breach of procedures and some procedural deficiencies, that it was disallowed because there was a valid reason. I'll go into that if I have time.

PN104

Just going forward from there, we say it is an injustice if new evidence is not allowed, and we say that there is sufficient doubt to warrant the reconsideration of this decision. At the first instance there were issues. It is an inclusion that Cribb C, in reaching this decision and remedy involved significant errors of fact. There was a valid reason found for termination and we say that in line with House v The King there was a valid reason found for termination and we say that in line with House and King, Cribb C, in exercising her discretion was mistaken by the facts, guided by relevant factors and failed to take material considerations into account and these were all critical and significant to reaching her decision.

PN105

At the first instance, we say it's counter-intuitive. Legal principles applied appear to be disharmonious and we submit that if these errors were not made, a different decision would have been made. The main basis that we are here today is that Cribb C made some decisions in relation to moving desks which we say was not supported by the evidence. We say that Mr Kelidis did contradict the evidence of Ms Repici. We also say that under payment in lieu of notice should have been taken into account. We say that the finding of procedural unfairness and no genuine opportunity to respond was actually contradicted by the evidence.

PN106

The witnesses themselves had actually mentioned that she was given an opportunity to review the documents. Commissioner Cribb even mentioned that she did have a genuine opportunity to review the documents or go through the documents. Even though she never asked to see the documents again. In the meeting with her - - -

PN107

DEPUTY PRESIDENT HAMILTON: I think you've made that point, haven't you? I recall you making that point earlier.

PN108

MS KHOURY: Yes.

PN109

DEPUTY PRESIDENT HAMILTON: There's no need to repeat a submission. We do listen to your submissions very carefully and we've also read your submissions, but go ahead and finish.

PN110

MS KHOURY: I just wanted to make one more point, your Honour.

PN111

DEPUTY PRESIDENT HAMILTON: Go ahead.

PN112

MS KHOURY: In relation to that, was that all the documents were available before her. She did have a genuine opportunity to respond and to review them.

PN113

In terms of the public interest, we say that in line with recent case law, dealing with procedural deficiencies and misconduct, Cribb C should not have just translated the failure of the genuine opportunity to respond to translate directly into a finding of unfairness.

PN114

If we refer you to the decision of Neighbour v Jenny Dalley at tab 1, page 10, at paragraph 66 to 68 that "Despite the absence of procedural unfairness in the decision making process, I nonetheless have decided that in the circumstances the dismissal was not harsh, unjust or unreasonable and that the respondent was left with little other reasonable choice than to take the action that it did."

PN115

In the circumstances, and why this is disharmonious with recent law is that there was a valid reason to terminate, there was a serious breach of procedures. It was in direct breach of the policy and procedures, we could have terminated her without notice. We paid her with notice and no fair go all around was considered. We say that because of this small element, we submit of procedural unfairness, a decision made but it was an unfair dismissal, which we say it was not.

PN116

In Morris v Anytime Fitness Pakenham Pty Ltd it mentions at tab 2, page 5, paragraph 27, that an absence of procedural fairness by an employer in effecting a dismissal which does not necessarily make the dismissal harsh, unjust or unreasonable.

PN117

DEPUTY PRESIDENT HAMILTON: Ms Khoury, there's no need to read these decision. We will read them. Just finish your oral submissions, please. You only have a short time. I don't want you to waste your time.

PN118

MS KHOURY: Thank you, your Honour, appreciate that.

PN119

DEPUTY PRESIDENT HAMILTON: Please finish your submissions. Make what points you need to make. Don't read Commission decisions out to us. Refer us to paragraphs.

PN120

I just remind you that the directions provide for half an hour of oral submissions. I think you've already had that plus a little bit more. Is there anything else you want to say before you finish. We have read your written submissions.

PN121

MS KHOURY: Yes, your Honour. If I could just make one more statement if that's okay with you?

PN122

DEPUTY PRESIDENT HAMILTON: Yes.

PN123

MS KHOURY: We submit that the decision made due to these errors was not open for the Commissioner to make and the decision was contrary to overall weight of the evidence. We submit that the Full Bench intervene due to these significant errors made by Cribb C in exercising the powers of the Commission. We submit that a different finding should have been made.

PN124

DEPUTY PRESIDENT HAMILTON: Thank you very much. We'll adjourn for a moment to discuss disposition of this matter. All stand.

SHORT ADJOURNMENT [10.43 AM]

RESUMED [10.45 AM]

PN125

DEPUTY PRESIDENT HAMILTON: Ms Khoury, if we uphold your appeal on the ground that Cribb C did not reduce the amount of compensation by the period of notice, which she said she would and if we uphold it solely on that ground, is the outcome you seek a reduction of the amount of compensation ordered by that amount, namely four weeks?

PN126

MS KHOURY: Yes, your Honour. I'm not sure if her finding new employment makes a difference. May I ask you a question, your Honour?

PN127

DEPUTY PRESIDENT HAMILTON: I was just asking that one issue about notice, that's one of your grounds. Does the question you wish to ask relate to that one ground, or is it something else entirely different?

PN128

MS KHOURY: I would say it relates indirectly to her finding new employment, a question in relation to that.

PN129

DEPUTY PRESIDENT HAMILTON: It's not relevant. I asked you a specific question about the issue of notice, that that was one of your grounds, you've given me your answer. Now, is there anything else you need to say about that one ground and that one question I asked you?

PN130

MS KHOURY: No, your Honour.

PN131

DEPUTY PRESIDENT HAMILTON: Thank you very much for your submission. We'll reserve our decision and it will be issued as soon as we can.

PN132

Thank you very much.

ADJOURNED INDEFINITELY [10.47 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 SUBMISSIONS OF THE APPLICANT DATED 15/09/2015.... PN3