C2015/5756, Transcript of Proceedings [2015] FWCTrans 599 (21 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052527

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VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER ROE

C2015/5756
C2015/5756

s.604 - Appeal of decisions

Santosheema Pty Ltd v Alexander
(C2015/5756)

Melbourne

11.08 AM, WEDNESDAY, 30 SEPTEMBER 2015

PN1

VICE PRESIDENT WATSON: Can we have the appearances please. We have, I understand, the parties on the telephone. Ms Brahmbhatt, you're on the phone?

PN2

MS BRAHMBHATT: Yes, I am.

PN3

VICE PRESIDENT WATSON: And Ms Alexander, you're also on a phone?

PN4

MS ALEXANDER: Yes. Yes.

PN5

VICE PRESIDENT WATSON: Okay. Well, we've listed this matter by telephone because of difficulties with the parties appearing and the matter is listed today to determine whether permission to appeal should be granted to your company, Ms Brahmbhatt.

PN6

MS BRAHMBHATT: Yes.

PN7

VICE PRESIDENT WATSON: And we wish to hear from you as to the reasons why permission to appeal should be granted.

PN8

MS ALEXANDER: But I - - -

PN9

MS BRAHMBHATT: Okay.

PN10

MS ALEXANDER: The point I - sorry, could I say something just before we start, please?

PN11

VICE PRESIDENT WATSON: I'm sorry, I didn't hear that.

PN12

MS ALEXANDER: Can I please say something before we start? Because I never got time I never received time to submit a a response. I was only given like two days to to put in the paperwork. I didn't have time to speak to anyone about it or anything. So I don't think it's fair if we carry it out today.

PN13

VICE PRESIDENT WATSON: Is that you, Ms Alexander?

PN14

MS ALEXANDER: Yes.

PN15

VICE PRESIDENT WATSON: If you can just hold on the line. I'm going to direct questions to Ms Brahmbhatt and ask her to advance her reasons. But if you can I note the point you raise but we'll deal with that later.

PN16

We're getting a fair bit of background noise from one or other of the phone lines. If you can either be in a quiet area or if you're not speaking, if you can put your phone on "mute" and that will avoid us getting the interruption from the background noise. Ms Brahmbhatt?

PN17

MS BRAHMBHATT: Sorry, it's probably my baby. Yes, I can put on I'll put it on "mute" while I'm not speaking.

PN18

VICE PRESIDENT WATSON: Is that you, Ms Brahmbhatt?

PN19

MS BRAHMBHATT: Yes. I think it's - - -

PN20

VICE PRESIDENT WATSON: Okay. Well - - -

PN21

MS BRAHMBHATT: You might be hearing my baby in the background.

PN22

VICE PRESIDENT WATSON: Okay. Ms Brahmbhatt, if you can now address us on why permission to appeal should be granted.

PN23

MS BRAHMBHATT: Okay. So basically the decision that was handed down on 13 April, I just I thought it was unfair that Marianne got another chance. She was given multiple chances to submit her documents which is all listed in the decision actually on 13 April.

PN24

She kept delaying the process and the I don't know if you want me to go through all all the dates that were delayed or if you've got that in the previous decision that yes, I don't need to repeat it but basically - - -

PN25

VICE PRESIDENT WATSON: We've got the decision we've got the decision.

PN26

MS BRAHMBHATT: Yes, so - - -

PN27

VICE PRESIDENT WATSON: And can I also just mention to you that in order to grant permission to appeal in this matter you must demonstrate that it is in the public interest to grant permission to appeal. Really, that's the test you need to advance.

PN28

MS BRAHMBHATT: Okay. So for the public interest bit, my worry was that if this hearing was allowed to be you know, to go ahead and if she were to win this, one of the outcomes I was told by legal advice was that we might be forced to reinstate her and Marianne was actually bullying her colleagues.

PN29

Basically we are a small business. There's myself and other directors, as well as two employees and both of those employees she had bullied at various times. It wasn't just once. So you know, it would be it wouldn't be in the public interest for this matter to go ahead just because, you know, it's not fair to the other employees.

PN30

I didn't realise at the time that bullying was a fireable offence. Otherwise I would have actually just, you know, terminated her employment immediately but, you know, I was only told this after taking legal advice so that's the reason.

PN31

Also the fact is that if the matter were to go to a hearing, those two employees would have to come to court as well and they're, frankly you know, they're scared of Marianne and they don't want to see her again.

PN32

She has made both of them cry on more than one occasion and I I don't think it's, you know, in their best interest to be put through this again and have to see her again and talk to her and have her yell at them again, you know. She's actually over over the phone, the past few hearings we've had, she's actually been quite, you know, vocal and that she's, you know, yelled abuse and all kinds of things, even on the phone.

PN33

Even the first mediation that we had, the mediator from FWC actually thought that she had mental issues, the way she was speaking to myself and to the mediator. So, you know, I just don't feel that anyone else should have to go through this hearing and deal with Marianne again.

PN34

VICE PRESIDENT WATSON: Anything further you wish to say about the public interest?

PN35

MS BRAHMBHATT: Let me just see if I've gone through all my points about that.

PN36

MS ALEXANDER: I'm sorry, is it my turn to speak now?

PN37

MS BRAHMBHATT: Well, I also feel that all this this whole entire claim is basically vexatious and frivolous and, you know, all the the fact that she hasn't complied with any of the directions in the past proves my point.

PN38

And, you know, again, we're we're a small business. We're wasting a lot of our time and revenue dealing with this so, again, that's a matter of public interest. If this were to go ahead she's just wasting our time, my colleagues' time, as well as your time, I think.

PN39

So you know, going off, you know, the fact that you you guys are, you know, a service provided by the taxpayers, I just don't think that it's in the taxpayers' interest for this to go ahead. It's quite simply, she's just not, you know, committed to this enough.

PN40

She never I don't think I've seen decent submissions from her at all, this whole time. The submissions that she did provide at the very latest possible time when she was given the chance on 14 April, they were just a copy and paste, you know, from her original claim, so nothing no new information, no details, nothing.

PN41

So I just really don't think she's in this for any other reason than just to, you know, give me more grief, basically, and my staff, as well. That's all from me.

PN42

VICE PRESIDENT WATSON: Thank you. Ms Alexander, we don't need to hear from you.

PN43

MS ALEXANDER: Yes.

PN44

VICE PRESIDENT WATSON: We have considered the matters that have been raised by Ms Brahmbhatt this morning - - -

PN45

MS ALEXANDER: Yes.

PN46

VICE PRESIDENT WATSON: - - - and in writing filed with the Commission and we've decided to deny permission to appeal in this matter. The decision of Deputy President Gooley related to a procedural issue as to whether the application could proceed and whether further opportunity to file material should be allowed.

PN47

That was clearly a procedural matter and it involved the discretion of the Deputy President dealing with the logistics of the unfair dismissal matter.

PN48

It appears to us that the matters that have been raised are really similar to matters that were raised before the Deputy President and we are not persuaded that it is in the public interest to grant permission to appeal.

PN49

We therefore dismiss that application. That means that the unfair dismissal matter will proceed in accordance with the administration by the Commission and we make no comment about any of the merits of that matter. We simply say that Deputy President Gooley made a procedural ruling which appears to us to be unexceptional.

PN50

We'll now adjourn this matter and the Commission will adjourn for a short time before hearing the next matter on our list. We'll now adjourn.

PN51

MS ALEXANDER: All right, thank you.

ADJOURNED INDEFINITELY [11.17 AM]