C2014/8162, Transcript of Proceedings [2015] FWCTrans 69 (17 February 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051296-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

C2014/8162

s.604 - Appeal of decisions

Galati v Veneto Club
(C2014/8162)





Sydney

10.37AM, WEDNESDAY, 21 JANUARY 2015

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

Reserved for Decision

PN1

JUSTICE ROSS: Could I have the appearances, please. Ms Galati?

PN2

MS S. GALATI: Yes?

PN3

JUSTICE ROSS: You're representing yourself. Is that right?

PN4

MS GALATI: Yes.

PN5

JUSTICE ROSS: Thank you. For the respondent, the Veneto Club?

PN6

MS S. COOK: Yes, your Honour. If it pleases the commission, Sasha Cook from SIAG seeking leave to appear on behalf of the respondent, the Veneto Club, in this matter. I seek to rely on the written submissions filed with the commission on 14 January 2015.

PN7

JUSTICE ROSS: Thank you. Ms Galati, do you have any objection to Ms Cook's application for permission to appear?

PN8

MS GALATI: No.

PN9

JUSTICE ROSS: All right. Thank you. Having regard to the complexity of the matter, Ms Cook, we think it would be more efficient if you're granted permission, so permission is granted on that basis.

PN10

MS COOK: Thank you, your Honour.

PN11

JUSTICE ROSS: To the extent that you require permission, do I take it that the respondent is a member of a registered organisation. Is that SIAG or - - -

PN12

MS COOK: No, your Honour, SIAG is not a registered organisation, so I'm here in my capacity as a paid agent.

PN13

JUSTICE ROSS: All right. In any event, out of an abundance of caution we'll grant permission. Can you just bear with me for a moment. Ms Cook, when you say you rely on your submissions, are those the submissions you filed in relation to permission to appear?

PN14

MS COOK: Yes, your Honour.

PN15

JUSTICE ROSS: Because we don't have any other submissions from you other than those. Is that right?

PN16

MS COOK: Yes, your Honour. I was advised that they would be oral submissions today, so I'm happy to - - -

PN17

JUSTICE ROSS: No, I'm not raising that as a criticism, I'm just trying to find out whether you had filed something that we hadn't seen, that's all. Ms Galati, we've got a copy of your submissions, being a four page document, or five page document, in support of your appeal. Can I take you through that and just test my understanding of what you are putting with you?

PN18

MS GALATI: Yes.

PN19

JUSTICE ROSS: The first point you raise is that the Commissioner failed to provide an accurate account of the submissions filed by the applicant in the matter, that is, yourself. I've got in front of me the submissions you filed to the Commissioner. Which part of those do you say that he did not take into account?

PN20

MS GALATI: With my submissions, he didn't take into account some of the details that I put and the effect that it had on me. Sorry. In establishing the circumstances as a whole, he didn't - sorry.

PN21

JUSTICE ROSS: No, that's fine, you can remain seated as well because it makes it easier for us to hear you, in any event. Can I take you to your submission in the proceedings below. Okay, that's a one paged submission with a number of attachments, all right, and you've got six dot points which identify events and circumstances which you submit compromised your ability to meet the 21 day timeframe, okay.

PN22

MS GALATI: Yes.

PN23

JUSTICE ROSS: Which part of those did the Commissioner not take into account? He summarises the reasons you advance at paragraph 10 of his submission. I'm just trying to identify which bits he did not, in your submission, have regard to.

PN24

MS GALATI: I think the second point.

PN25

JUSTICE ROSS: That you underwent treatment?

PN26

MS GALATI: Yes.

PN27

JUSTICE ROSS: Do you have a copy of his decision there?

PN28

MS GALATI: Yes, I do.

PN29

JUSTICE ROSS: Can I take you to paragraph 10B. He notes there that you had an adverse reaction to medication which compromised your ability to concentrate and remain focused.

PN30

MS GALATI: Yes. I don't think he's considered the whole effect of the adverse reaction.

PN31

JUSTICE ROSS: All right.

PN32

MS GALATI: In that - - -

PN33

JUSTICE ROSS: That is, he didn't refer to the fact that fatigue was one of the reactions, as was agitation, et cetera. Is that right?

PN34

MS GALATI: Sorry, yes. In what I submitted, it had more of a debilitating effect rather than just, you know, stopping me from concentrating.

PN35

JUSTICE ROSS: I see, okay. The other thing I wanted to ask you about is your procedural fairness point. It appears from what you say you were not provided with a copy of the respondent's submissions. Is that right?

PN36

MS GALATI: Yes.

PN37

JUSTICE ROSS: When we've looked at the respondent's submissions that were filed, it appears that they've used an incorrect email address for you and that's why you didn't receive them. The essence of your point is that you didn't get an opportunity to look at them or comment on them, and that the Commissioner has relied on them in reaching his decision and you had been denied procedural fairness on that basis. Is that the submission that you're making?

PN38

MS GALATI: Yes, and that when I didn't object to the Commissioner making his decision based on the papers, I wasn't aware that the respondent had submitted anything.

PN39

JUSTICE ROSS: Yes.

PN40

MS GALATI: I wasn't able to make an informed decision.

PN41

JUSTICE ROSS: I think you've now got a copy of the respondent's submissions. Is that right?

PN42

MS GALATI: Yes.

PN43

JUSTICE ROSS: In the proceedings below. Is there anything you want to say about those submissions now?

PN44

MS GALATI: Sorry. Yes, I don't agree with some of the stuff that they've stated.

PN45

JUSTICE ROSS: Which bits don't you agree with?

PN46

MS GALATI: 5A, it says that the VRQA was my apprenticeship provider, which they're not, and that's something that the Commissioner has adopted. Sorry, that's all at the moment.

PN47

JUSTICE ROSS: Okay. Is there anything else you want to say in support of your application for permission to appeal?

PN48

MS GALATI: Yes, there was, but, sorry, I'm just, like, put out.

PN49

JUSTICE ROSS: That's all right. Do you want a moment to gather your thoughts?

PN50

MS GALATI: Yes, sorry, I've got my thoughts. I just thought that I'd be given a chance to kind of elaborate on - - -

PN51

JUSTICE ROSS: You can.

PN52

MS GALATI: - - - points that I touched on.

PN53

JUSTICE ROSS: Yes, you can do that, absolutely. That's why I asked you the question of whether there was anything else you wanted to say.

PN54

MS GALATI: If it's all right, can I elaborate on my points?

PN55

JUSTICE ROSS: Yes.

PN56

MS GALATI: In the submissions that I filed last week for the grounds for appeal, I've pointed out grievances I had with paragraph 3.

PN57

JUSTICE ROSS: Yes.

PN58

MS GALATI: In his report of his decision, he's taken the date of 25 July to be the date that the dismissal took effect.

PN59

JUSTICE ROSS: What do you say is the date the dismissal took effect?

PN60

MS GALATI: I don't know. Do I need permission to put some new evidence? In my original objections application, I stated that I disputed the - sorry, I wasn't sure what the date of the dismissal was.

PN61

JUSTICE ROSS: Just tell us what you think the date was.

PN62

MS GALATI: I've received documents that say the 25th, documents that say the 27th and documents that says the 29th.

PN63

JUSTICE ROSS: On either one of those, you're still out of time.

PN64

MS GALATI: I think it makes a difference in assessing the time, like, how late it was and the events that happened, so going by what my last payslip said, which said, "Ceased employment on the 29th," that it would mean that my 21 days would expire on the 19th. On the 19th I was sick and I just finished having a week long adverse reaction to medication. I submitted a medical certificate for that day, and the following date was the 20th and that's when I tried to file my submissions.

PN65

JUSTICE ROSS: Yes, but what is the explanation for not filing prior to the last day?

PN66

MS GALATI: I was having allergic reactions to medication.

PN67

JUSTICE ROSS: Let's just go through. If, on your submission, it was the 29th, then when does the 21 days expire?

PN68

MS GALATI: On the 19th.

PN69

JUSTICE ROSS: 19 August?

PN70

MS GALATI: Yes.

PN71

JUSTICE ROSS: So you had a period from 29 July to 19 August to file your application, and you had an adverse reaction for part of that period, from 9 to 16 August.

PN72

MS GALATI: Yes.

PN73

JUSTICE ROSS: That explains part of the delay. It doesn’t explain why you couldn't file before 9 August or after 16 August.

PN74

MS GALATI: Prior to 9 August, I was making investigations with the VRQA to see if my apprenticeship had been terminated, because according to the Training Act in Victoria the employer can't terminate the apprentice's employment unless they notify the VRQA, and I've included that in my authorities. Going on that, I was trying to inquire - - -

PN75

JUSTICE ROSS: Okay, when did those inquiries finish?

PN76

MS GALATI: I tried in the week of the 29th and then the following week, and I wasn't able to get any assistance because the respondent hadn't - because they hadn't applied to cancel my training contract I was told that they couldn't do anything until the training contract - the application had gone in to cancel it, but I didn't - they should have intervened, but I wasn't - I didn't have that confirmed until two months later when I actually got someone to come out and start an investigation.

PN77

JUSTICE ROSS: Can I go back to the period from 9 to 16 August where you say you had an allergic reaction to the medication.

PN78

MS GALATI: Yes.

PN79

JUSTICE ROSS: None of the medical certificates that you've provided appear to cover that period.

PN80

MS GALATI: Yes, I've got one for the 12th - - -

PN81

JUSTICE ROSS: That's right, that says that you presented with drowsiness and fatigue on that day.

PN82

MS GALATI: Yes.

PN83

JUSTICE ROSS: Is that right?

PN84

MS GALATI: Yes. When I saw the doctor when I was having the reaction, I didn't obtain a medical certificate on that date because I didn't think I required it. The following week I went back to get one at my school's request, and he only provided a vague medical certificate.

PN85

JUSTICE ROSS: That's the one, yes. Yes, sorry?

PN86

MS GALATI: I've been back to try and get a more substantial one, but my doctor has either been, yes, fully booked out and more recently he's been on holidays, so I haven't been able to get in to get something down.

PN87

JUSTICE ROSS: All right. Okay, go on.

PN88

MS GALATI: I mentioned it before with paragraph 10A of the Commissioner's decision.

PN89

JUSTICE ROSS: Yes.

PN90

MS GALATI: The idea that the VRQA is my apprenticeship provider, that changes the meaning of my statement because with me pursuing the VRQA, like I've explained already, I was following conditions of my training contract and it that had a legal base. If I was making investigations with my apprenticeship provider, I wouldn't really be able to give many answers, I wouldn't be able to do much, so it changes the relevance of me actually trying to do something, and with me pursuing the VRQA, you know, I didn't agree with (indistinct) so I was trying to initiate whatever processes they had for dealing with disputes.

PN91

JUSTICE ROSS: Okay.

PN92

MS GALATI: And then when that failed obviously I've come to the commission.

PN93

JUSTICE ROSS: So you were doing that on your own submission between 28 July and 8 August. Is that right?

PN94

MS GALATI: Yes.

PN95

JUSTICE ROSS: If you were doing it from 28 July, how does that support your submission that the termination didn't take effect until 29 July?

PN96

MS GALATI: Because I received a document that said that had the 27th as well, which I received on the 25th, and then on the 29th when I received my payslip then a new date was introduced.

PN97

JUSTICE ROSS: All right. Okay, is there anything further you wish to say?

PN98

MS GALATI: Yes. I think it's in section 10B(2) of the Commissioner's decision, firstly, there's a spelling mistake in the decision that's he's quoted.

PN99

JUSTICE ROSS: Chronic fatigue, yes.

PN100

MS GALATI: (indistinct)

PN101

JUSTICE ROSS: Yes.

PN102

MS GALATI: But that was, as I've said in my written submissions, it's out of context, but the medical certificate that I submitted for that I submitted to establish that there was conditions existing prior to the dismissal that had an effect on my ability to deal with my application.

PN103

JUSTICE ROSS: Yes.

PN104

MS GALATI: What I was implying was, you know, with the existing conditions then with the other things which occurred after the termination, how they kind of built on each other. It wasn't, you know, a series of events, you know, that they had but then they were done with and then something else happened, it was something existing. Every time that something happened, you know, combined with the existing conditions, you know, it had an impact on me, it had an impact on my health and not something that would go away the next day.

PN105

JUSTICE ROSS: Yes.

PN106

MS GALATI: In the submissions I made to the Commissioner, when I noted that I had a car accident I submitted documents and I submitted - my car was written off.

PN107

JUSTICE ROSS: That doesn’t appear in the submissions in the dot points you identify at the outset. You've submitted a letter from the RACB noting that your vehicle suffered extensive damage and they decided to write it off.

PN108

MS GALATI: Yes.

PN109

JUSTICE ROSS: Yes, well - - -

PN110

MS GALATI: Besides it being an inconvenience, I think there's a couple of points after. I stated that, you know, I don't have Internet access at my house, you know, having no car, it hindered my ability to go and get access to the Internet and seek the facilities that I needed to attend to my application. I don't think that the impact that having no transport and combined with having an allergic reaction, and the pre-existing medical conditions, I don't think that was considered to what impact that had on my ability to attend my application.

PN111

This decision in general, for lack of a better word, I don't want to imply that the Commissioner was biased, but when I read it, I felt hard done by, I felt like it didn't accurately represent my side, what I had submitted. Then when I received the respondent's submissions and then compared the two documents, I felt, you know, even more hard done by because I felt, you know, that parts of it were very - the Commissioner's decision was very the respondent's submissions.

PN112

Specifically in the summary of what I had submitted, you know, I feel that if I've submitted it and that's my point of view or my account for what had happened, then it should reflect what I had submitted, not what someone else had summarised my submissions have been because, you know, if the respondent summarised my submissions, you know, they're going to leave out certain bits so that it suits their contention.

PN113

JUSTICE ROSS: I think in your submissions in support of your appeal, you identify a number of instances where you say the Commissioner has adopted the language used by the respondent in their submissions.

PN114

MS GALATI: Yes.

PN115

JUSTICE ROSS: Okay.

PN116

MS GALATI: Also back on how I didn't receive the respondent's submissions, yes, I feel that was unjust. It's making a decision on whether my application can proceed or not. If someone has submitted stuff that is refuting what I've submitted, I should have a chance to respond, if they're making claims that I don't think is accurate, you know, I feel I should have that right. Then the Commissioner can make the decision.

PN117

JUSTICE ROSS: Okay. Anything else, Ms Galati?

PN118

MS GALATI: Yes. On the Commissioner judging, like, deciding that he could make a decision based on just the papers - sorry, I'm trying to think of how to put it. I think he's made an error: (1) because the respondent requested that the decision be made on the papers; (2) that, you know, they've got legal representation. I don't have access to that. I don't have the knowledge, you know, of legal proceedings, of the legislation to understand the full implication of not objecting. If you look at the structure of my submissions and the structure of their submissions, you can see the difference.

PN119

I think to decide on the papers, I think he's made the wrong decision. If I had have been given the chance to front in a hearing room, in a conference, you know, there could have been discussions, there could have been - I probably would have been able to substantiate my case more and clarify any issues or misunderstandings with what I had submitted.

PN120

JUSTICE ROSS: If you had the opportunity that you're having now to clarify and add to your submissions, you would have received a fairer hearing. Is that the essence of what you're putting?

PN121

MS GALATI: Yes, and I would have been able to submit - have more documents to submit to support my claims, and to, you know, refute what the respondent has come back with, and support what I have submitted initially.

PN122

JUSTICE ROSS: Ms Galati, a question arises as to what do you want us to do with this matter. If we are persuaded to grant you permission to appeal, and obviously we need to hear from Ms Cook, and we'll come to that in a moment, but if we're persuaded to grant permission to appeal, there are two options: the matter can then be listed for an appeal hearing at some future date, if you were granted permission to appeal now, and they would hear submissions from both parties.

PN123

The alternative is: given that the matter is of relatively narrow compass, it involves an application to extend time, and you appear to have put the argument that you want to run in support of your application to extend time, the other alternative is that we simply determine the question of permission to appeal. If we find in your favour, we also determine the appeal and, in the course of that, also determine your application to extend time. Now, if you feel that you've put all that you want to put in relation to those issues, are you content with that course? Do you - - -

PN124

MS GALATI: No.

PN125

JUSTICE ROSS: - - - understand the options?

PN126

MS GALATI: Yes. I'm not content if permission was granted and the bench was to make a decision because I've got more evidence that I could put to support my other submissions. You know? I can go see my doctor, et cetera.

PN127

JUSTICE ROSS: Okay. All right. Thanks, Ms Galati. Was there anything else you wanted to add in relation to permission to appeal?

PN128

MS GALATI: Not at this stage.

PN129

JUSTICE ROSS: All right, thanks. Ms Cook.

PN130

MS COOK: Thank you, your Honour.

PN131

JUSTICE ROSS: Remain seated, if you wouldn't mind, otherwise the microphone can't pick up what you say.

PN132

MS COOK: I can also hand up the oral submissions I'll be making today for the commission, if that would be appropriate, your Honour.

PN133

JUSTICE ROSS: Sure.

PN134

MS COOK: In relation to this matter - - -

PN135

JUSTICE ROSS: Just bear with me for a moment. Is there anyone from the commission in the courtroom there?

PN136

MS COOK: No, there's not, your Honour.

PN137

JUSTICE ROSS: Yes, Ms Cook.

PN138

MS COOK: On 25 July 2014, the respondent dismissed the applicant from her employment. On 27 August 2014, the appellant lodged a form 8 general protections application with the Fair Work Commission. The Fair Work Act provides that an application to deal with the general protections dispute, which involves a dismissal, must be lodged with the commission, within 21 days after the dismissal takes effect, in accordance with section 366(1)(a). The appellant's application was filed some 12 days outside of the prescribed time.

PN139

JUSTICE ROSS: Ms Cook, you don't need to take us through the background and history to it. Just put your submissions in reply to what's been put by the appellant.

PN140

MS COOK: Thank you, your Honour. Beyond section 604, if appealed by way of rehearing, and the commission may only exercise its powers on appeal if there's an error on the part of the primary decision maker as per Coal and Allied Operations Pty v Australian Industrial Relations Commission. In reaching his decision as to whether or not to grant the appellant an extension of time in which to lodge her application, Johns C was bound by section 366(2) of the Fair Work Act, which prescribes the matters to be taken into account.

PN141

The Commissioner took all of those matters into account in his findings and concluded there was no exceptional circumstances which warranted the grant of an extension of time. The Commissioner's findings in relation to each of the matters, having considered the submissions of the party, were taken into account and specifically referred to at paragraph 13, 16, 19, 24, 25 and the conclusion of the Commissioner was set out at paragraphs 31 and 32 of his decision, stating:

PN142

In considering all the circumstances related to the applicant's application and on the basis of the evidence provided by the parties, the exceptional circumstance envisaged by section 366 of the Act to exercise the discretion to allow a further period within which to lodge the application did not arise in this case. The period for the applicant to lodge her application is not extended and the application is dismissed.

PN143

We note the applicant has sought to contend that the Commissioner has mistaken the facts and cites in her written submissions that there was significant errors of fact in the decision. In summary, she contends that the reference to the apprenticeship provider was incorrect and it should have been a reference to the Victorian Registration and Qualifications Authority. She contends that not including the appellant's full description of the adverse reaction to one of her medications merely referencing that she had an adverse reaction to the medication was at issue, not including a reference to the fact that in a no-fault car accident, her car was written off, is one of her contentions, and not identifying that it was a combination of circumstances which led to her delay.

PN144

In those circumstances, we say, consistent with the decision in House v The King, the respondent submits that the full bench may only intervene on the limited ground that an error has been made in exercising the discretion, namely that the decision-maker has acted upon a wrong principle, being guided by irrelevant factors, mistaken the factors or failed to take some material consideration into account. The respondent submits that none of the matters cited by the appellant give rise to a finding that the Commissioner acted on a wrong principle, was guided by irrelevant factors, had mistaken the facts or failed to take some material consideration into account in exercising his discretion.

PN145

Accordingly, it's submitted that the matters identified do not constitute an appealable error. The respondent further submits that insofar as the appellant contends that a culmination of circumstances led to the delay, the matter was specifically addressed at paragraph 28 of the decision as follows:

PN146

Suffice to say, it was not enough for the applicant to establish an acceptable explanation for delay without also establishing that the reasons in the exceptional circumstance or part of a number of factors which, when viewed jointly, represents exceptional circumstances.

PN147

So the Commissioner had reference to each of the matters specifically raised by the appellant in relation to her application and looked at those both separately and jointly.

PN148

In relation to the public interest, the respondent notes that in accordance with section 604(2), the commission must grant permission, if the commission is satisfied that it is in the public interest to do so. GlaxoSmithKline Australia Pty Ltd v Makin, a full bench of the commission identified that some of the considerations that may attract the public interest are as follows: that public interest might be attracted where a matter raises an issue of importance and general application or where there is a diversity of decisions at first instance so that guidance from the appellant court is required, or whether the decision at first instance manifests an injustice, or the result is counterintuitive or that the legal principles applied appear disharmonious when compared to the other recent decisions dealing with similar matters.

PN149

As set out in Qantas Australia Ltd v Carter, the public interest test is not satisfied simply by the identification of an error or a preference for a different result. We cite paragraph 58 of that decision, which states:

PN150

Despite the identified error, having considered all of the issues in the Commissioner's decision and in this appeal, we are not persuaded that the permission to appeal should be granted. The decision dealt with peculiar circumstances enlivened by the particular facts. We do not discern any wider issues of principles raised by the grounds of appeal. There is no general importance and no jurisdictional or legal points raised, no substantial injustice will result if permission is refused. In our opinion, no public interest considerations are established by the grounds of appeal.

PN151

The appellant contends that, as set out in 3.1 of her form 7 in this appeal, it is in the public interest for the commission to grant the appeal, and she lists a number of factors to be considered. The respondent submits that in accordance with the decision in Qantas, public interest is not attracted on these grounds, even where the commission identifies a factual error in the decision, which is disputed by the respondent, the grounds of the appeal do not raise any issues of general importance or identify any jurisdictional or matters of legal principle. Furthermore, the respondent submits that the refusal to grant permission to appeal would not result in any substantial injustice.

PN152

We specifically cite the issue in terms of the procedural matter that the appellant has raised. I would state that the Commissioner, in his email to the parties on 12 November, sought whether the parties were prepared to consent to the matter being heard on the papers. In his email to the parties, the Commissioner relevantly refers that he has considered the material filed by both parties. He is referring, therefore, that he has received submissions from both the applicant and the respondent in that matter.

PN153

In the circumstances, Ms Galati had no objection to the matter being heard on the papers and I would again reiterate that it was by the consent of the parties. Ms Galati made no inquiries despite the fact that the Commissioner has noted that there had been material filed by both parties to alert any of the parties to the fact that there may have been issue with service.

PN154

Further, in relation to the matters that have been put to the commission today, the appellant cites no specific grounds that would give rise to an appealable error had the matter been heard not on the papers but, in fact, in a formal hearing. In those circumstances, we contend that the public interest is not brought about that matter. In summary - - -

PN155

VICE PRESIDENT HATCHER: Ms Cook, I'll just ask you one question on that last submission. The correspondence from the commission about material being received from both parties might on one view have been understood to be referring only to the employer response to the general protections application, if the applicant did not know there had been a further submission filed.

PN156

MS COOK: It was specifically in reference to the submissions that had been filed. So certainly I think the email is sufficiently clear that it was referring to the submissions in terms of the out of time application.

PN157

VICE PRESIDENT HATCHER: It would be clear for you if such a submission had been filed, but if you had no knowledge of such a submission, it might be read as simply referring to the employer response.

PN158

MS COOK: Certainly my reading of the email, with respect, because it also refers to the fact that either side has any objection to determining the extension of time issue on the papers, he is referring to the submissions provided by both parties in that context.

PN159

VICE PRESIDENT HATCHER: There's no doubt what the Commissioner intended to refer to; it's how it would be understood by somebody who did not know that your client had filed submissions.

PN160

MS COOK: I think in the context of the fact that it was made clear in communications through this process that both parties were required to file, but also that they were required to serve on the other side, Ms Galati was specifically made aware of that through this process, that she had failed to serve a number of documents on the respondent through the process, so the associate wrote to the appellant in this matter and confirmed that. She was aware, therefore, that she could make relevant inquiries if items had not been served on her.

PN161

VICE PRESIDENT HATCHER: But it's your responsibility to serve matters, not the other party's responsibility to follow up if they're not served. Ms Galati may well have assumed you just didn't file a submission.

PN162

MS COOK: Yes, your Honour. In the current circumstances, we did understand that we had, in fact, served - - -

PN163

VICE PRESIDENT HATCHER: But you accept that you did not, in fact, serve your submissions on Ms Galati.

PN164

MS COOK: It appears that there was a typographical error in the email for service that was not identified.

PN165

VICE PRESIDENT HATCHER: So the answer is yes, you did not serve - - -

PN166

MS COOK: Yes, your Honour.

PN167

VICE PRESIDENT HATCHER: - - - your submissions on Ms Galati.

PN168

MS COOK: Yes, your Honour. In conclusion, it is apparent that the written submissions, that the appellant disagrees with the decision of the Commissioner. However, we submit where the decision had involved the exercise of a significant level of discretion, it is not enough that the full bench would have reached a different conclusion such as to grant permission to appeal. The commission should not be persuaded that in making this decision that the Commissioner erred in a matter in which he dealt with this issue.

PN169

Certainly the delay in lodging the application to deal with the general protections dispute was significant and it is the respondent's submission that the appellant did not present a case that could support a finding of exceptional circumstances within the meaning of section 366(2). She merely prioritised her dealings with her insurance company and VRQA over making her application. The respondent further submits that there was no error on behalf of the primary decision-maker that would give rise to an appealable error. In the circumstances, the commission should not be satisfied that it is in the public interest to grant permission for appeal.

PN170

VICE PRESIDENT HATCHER: Thank you. Where in the appeal book is the document you mentioned which invited the parties to have the matter determined on the papers?

PN171

MS COOK: Tab 9.

PN172

JUSTICE ROSS: All right, we have that. Ms Galati, anything you wish to say in reply?

PN173

MS GALATI: In regards to the issue that you guys just discussed, when I was made aware that I had to serve my documents on the other party, because the commission had made a point of pointing that out to me. When I didn't receive anything, you know, I assumed that, you know, they hadn't submitted anything because I had not heard anything from the commission. They've made a point of it, you know, a week earlier. You know? So I made the assumption that they hadn't made any submissions, which I now know is wrong.

PN174

VICE PRESIDENT HATCHER: Ms Galati, in your general protections application which you filed, did you identify what workplace right you say the respondent contravened when they dismissed you?

PN175

MS GALATI: Specifically as it's addressed in the Act, no, I don't think I did. I was a bit confused. I think I touched on certain things, but not really in a properly structured format.

PN176

VICE PRESIDENT HATCHER: Do you say now there's some workplace right that you had that they contravened when they dismissed you?

PN177

MS GALATI: Yes.

PN178

VICE PRESIDENT HATCHER: For example, dismissed because of illness or injury, or race, religion, et cetera?

PN179

MS GALATI: Yes. There was a few, but off the top of my head, because of illness, I was terminated because of absences and latenesses. I provided the respondent during my employment with numerous medical documents, the dates for which I was absent. I had medical certificates for then. So to terminate me for being absent on those days would be a contravention.

PN180

JUSTICE ROSS: Is there anything else, Ms Galati?

PN181

MS GALATI: No.

PN182

JUSTICE ROSS: Anything from you, Ms Cook?

PN183

MS COOK: No, your Honour.

PN184

JUSTICE ROSS: Thank you both for your submissions. We'll reserve our decision in this matter and issue it shortly, and provide you both with a copy.

<ADJOURNED INDEFINITELY [11.30AM]