C2015/6956, Transcript of Proceedings [2015] FWCTrans 702 (9 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052779

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COMMISSIONER ROBERTS

C2015/6956

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

TNT Australia Pty Limited

and

Mr Dayton Paekau

(C2015/6956)

TNT - TWU Fair Work Agreement 2014 - 2017

Sydney

10.36 AM, FRIDAY, 27 NOVEMBER 2015

PN1

THE COMMISSIONER: Good morning, I will take appearances, commencing with the company.

PN2

MR A MOULTON: Thank you, Commissioner. Moulton initial A, employee relations manager appearing for the applicant. With me is Ms C Lloyd-Jones, HR business partner with the applicant.

PN3

THE COMMISSIONER: Thank you.

PN4

Mr Paekau, you just stand up and give me your name and say that you appear for yourself. I can't do it for you. I just have to give you the words.

PN5

MR D PAEKAU: No, that's all right. Dayton Paekau. I appear for myself.

PN6

THE COMMISSIONER: Paekau, is it?

PN7

MR PAEKAU: Yes, Paekau.

PN8

THE COMMISSIONER: Okay, thank you. I'll just explain to you the way this works, Mr Paekau. You know the application has been made?

PN9

MR PAEKAU: Yes.

PN10

THE COMMISSIONER: So there's no dispute as I take it that your position with the company in the job that you last held is redundant but the company says that they have found a suitable alternative position for you and therefore there should be no payment of redundancy pay. That's the nutshell, unless Mr Moulton jumps up and tells me I'm wrong, and he hasn't, so I'm right. Therefore the onus, the burden as we call it, is on the company to show me why I should reduce your redundancy pay to zero or to another figure somewhere between what you would be entitled to and zero. Okay?

PN11

MR PAEKAU: Yes.

PN12

THE COMMISSIONER: Or the total amount of redundancy pay. So that means the company goes first in this matter. They have the job of proving it to me.

PN13

Mr Moulton, prove away.

PN14

MR MOULTON: Thank you, Commissioner. This is an application to vary redundancy pay under section 120 of the Act. Commissioner, we filed a number of documents in support of the application which are essentially business records. They have been filed and served on the respondent.

PN15

THE COMMISSIONER: What are they? I don't have a vast amount of documentation here.

PN16

MR MOULTON: So I can take you through the documents that have been filed, Commissioner. We've obviously got the outline of submissions. Actually I believe there's an error on there. It says "Respondent's outline of submissions".

PN17

THE COMMISSIONER: Yes.

PN18

MR MOULTON: It should be the applicant's.

PN19

THE COMMISSIONER: I wondered about that. You're used to being the respondent, aren't you?

PN20

MR MOULTON: Very used to being the respondent, Commissioner. There is a letter - - -

PN21

THE COMMISSIONER: The document marked "Respondent's outline of submissions" and I'll refer to it as TNT's outline of submissions, you've got that, Mr Paekau?

PN22

MR PAEKAU: I did get a copy of that. I don't have it with me now, but.

PN23

THE COMMISSIONER: Don't you? You should. Your fate rests partly in those documents. So my associate will get a copy made for you.

PN24

MR MOULTON: I have a spare copy, Commissioner, that I could provide.

PN25

THE COMMISSIONER: You've got a spare copy?

PN26

MR MOULTON: I do.

PN27

THE COMMISSIONER: Yes, give it to the respondent. The TNT outline of submissions I'll mark into evidence as exhibit TNT 1, and you should write that on your copy. My associate will give you a pen if you don't have one, if she has got one to spare.

EXHIBIT #TNT1 TNT'S OUTLINE OF SUBMISSIONS

PN28

THE COMMISSIONER: So it's now known as exhibit TNT 1. Okay? All right, so we've done that, Mr Moulton. What else are we doing?

PN29

MR MOULTON: We've got a number of other documents. Perhaps it's prudent to tender those into evidence at this point.

PN30

THE COMMISSIONER: Yes, just let me go through this again. I read it in the last couple of days and now a lot of it has slipped my mind. So your submissions run to 90 paras and there's one attachment, the letter to Mr Paekau, is that right?

PN31

MR MOULTON: There were a number of other documents that were filed as well.

PN32

THE COMMISSIONER: Attached to that? Tell me what the other documents were.

PN33

MR MOULTON: So there's a letter dated 21 September 2015.

PN34

THE COMMISSIONER: That I have. I'll mark it separately as TNT 2, and just to identify it, it's a letter from TNT to Mr Paekau.

EXHIBIT #TNT2 LETTER FROM TNT TO MR PAEKAU DATED 21/09/2015

PN35

THE COMMISSIONER: What's the next one?

PN36

MR MOULTON: Yes, the next document we have is a response. It's undated, from Mr Paekau. Dated - sorry, undated. It starts out:

PN37

To whom it may concern, I am writing in response to the letter stating the role of retail coordinator no longer exists.

PN38

THE COMMISSIONER: Right, an undated letter from Mr Paekau to TNT will be marked as TNT 3.

EXHIBIT #TNT3 UNDATED LETTER FROM MR PAEKAU TO TNT

PN39

THE COMMISSIONER: And then there's the termination of employment letter?

PN40

MR MOULTON: There's a further letter dated 25 September 2015. This letter, Commissioner, was to advise the respondent that there were suitable alternative positions available and that if he did not accept one of those positions then - - -

PN41

THE COMMISSIONER: Well, I'm trying to find it. They're out of order in terms of date here. Just hang on. I don't appear to have it, Mr Moulton.

PN42

MR MOULTON: I have a copy I can tender, Commissioner.

PN43

THE COMMISSIONER: Good man. Hand it up.

PN44

Do you have these documents as we're talking about them, because they're all very relevant?

PN45

MR PAEKAU: Yes, I do have them. Yes.

PN46

THE COMMISSIONER: And we start to refer to things by their exhibit number so that's why you've got to write it down, so you don't get lost in the game. All right?

PN47

MR PAEKAU: Yes.

PN48

THE COMMISSIONER: A letter to Mr Paekau from TNT dated 25 September 2015 will be marked as TNT 4.

EXHIBIT #TNT4 LETTER TO MR PAEKAU FROM TNT DATED 25/09/2015

PN49

MR MOULTON: Thank you, Commissioner.

PN50

THE COMMISSIONER: Yes.

PN51

MR MOULTON: And perhaps I'll take the Commissioner through the contents of the letters during closing submissions.

PN52

THE COMMISSIONER: But there are more, aren't there? There's one - - -

PN53

MR MOULTON: There are more. There are a few more.

PN54

THE COMMISSIONER: You don't want to do that now? We can do it whenever you want.

PN55

MR MOULTON: I'm in the Commission's hands as to that.

PN56

THE COMMISSIONER: Well as long as I can find them. Okay, all that so far, those four exhibits, are in evidence.

PN57

Did you make any written submissions, Mr Paekau?

PN58

MR PAEKAU: I only made a submission in the way of a letter that I sent through to Ms Kearnes.

PN59

THE COMMISSIONER: So is that the letter headed "To whom it may concern"?

PN60

MR PAEKAU: That's correct.

PN61

THE COMMISSIONER: Okay, that's already - - -

PN62

MR MOULTON: Commissioner, we actually didn't receive anything from the respondent in compliance with the directions, so we don't have a copy of that. I also wanted to put to the applicant whether there was any evidence that he wanted to provide or rely upon today as well.

PN63

THE COMMISSIONER: Look, as sometimes happens I've got a bit lost. TNT 1 was the submissions. TNT 2 was TNT's letter of 21 September. What was TNT 3?

PN64

MS LLOYD-JONES: TNT 3 is - - -

PN65

MR MOULTON: That's the undated letter from Mr Paekau to TNT.

PN66

THE COMMISSIONER: Yes. You see, I've got two headed "To whom it may concern". So the one that starts, "I refer to your letter dated 25 September" that's TNT 3. But there's another one, isn't there?

PN67

MR MOULTON: Perhaps, Commissioner, I could hand up a copy of - - -

PN68

THE COMMISSIONER: I see. No, the document that Mr Paekau is referring to is another "To whom it may concern".

PN69

Is this the one, Mr Paekau, that says, "I write in response to matter C2015/6956"?

PN70

MR PAEKAU: That's my response. That was my submission letter.

PN71

THE COMMISSIONER: They're your submissions, okay. I'll mark yours as Paekau 1.

EXHIBIT #PAEKAU1 RESPONDENT'S WRITTEN SUBMISSIONS HEADED "TO WHOM IT MAY CONCERN"

PN72

THE COMMISSIONER: Are you up with me, Mr Moulton?

PN73

MR MOULTON: We don't have - we haven't been served with a copy of that, Commissioner, so.

PN74

THE COMMISSIONER: Okay, you will be now. Do you want a few minutes to look at it?

PN75

MR MOULTON: Would appreciate that. Thank you.

PN76

THE COMMISSIONER: Yes, I think so. Yes. I'll be back, say, in 10 minutes' time. There has been no conciliation of this matter. Has there been a conciliation beyond the mention?

PN77

MR MOULTON: No there hasn't.

PN78

THE COMMISSIONER: Well, you've got 10 minutes. If you want to try and sort it out with Mr Paekau you can.

PN79

MR MOULTON: Thank you, Commissioner.

PN80

THE COMMISSIONER: While you read his letter. I'm adjourned for 10 minutes.

SHORT ADJOURNMENT [10.45 AM]

RESUMED [11.31 AM]

PN81

THE COMMISSIONER: For the record during the break the parties have been separate and the employer's side has been reviewing the submissions made by Mr Paekau, which had not previously been supplied to them. I might note also for the record that I have spoken to both the employer side and to Mr Paekau separately, purely to tell them that in my belief there would be utility in them trying to settle this matter by agreement rather than approaching it as a winner take all situation.

PN82

Mr Moulton?

PN83

MR MOULTON: Thank you, Commissioner. So we have had a brief conversation but perhaps I won't go into the detail while we're on record.

PN84

THE COMMISSIONER: No, that would be unwise, wouldn't it?

PN85

MR MOULTON: Very unwise. So we've reviewed the material that has been tendered by Mr Paekau this morning, and I think they were described as submissions but it would seem that there's a mixture of submission and evidence tendered in this document.

PN86

THE COMMISSIONER: In the case of unrepresented litigants very often it ends up as the witness statement as well.

PN87

MR MOULTON: Certainly, yes. So, Commissioner, there's a number of items that have been raised here that, had this document been provided in accordance with the directions, TNT most likely would have provided a number of witnesses today to be able to assist the Commission in its determination of the factual matter in this. Without those witnesses, Commissioner, it's very difficult for the applicant to respond to quite a large number of the claims that have been raised in this document. So on that basis we'd be seeking an adjournment so that either witness statements can be prepared in response to these matters or those witnesses can be brought before the Commission to give evidence.

PN88

THE COMMISSIONER: Is Mr Paekau currently employed by TNT?

PN89

MR MOULTON: No he's not, Commissioner.

PN90

THE COMMISSIONER: So you've left there, Mr Paekau? Have you got another job now?

PN91

MR PAEKAU: I do have another job, yes.

PN92

THE COMMISSIONER: Okay. It relates not to the substance of your case but to the urgency of what we're doing, okay?

PN93

MR PAEKAU: Yes.

PN94

THE COMMISSIONER: But certainly what Mr Moulton has requested is in my view reasonable, given that through no real fault of yours they've been ambushed by a lot of material they didn't know anything about, and it would be an unfairness of the process to force them to go ahead today. Okay?

PN95

MR PAEKAU: Yes.

PN96

THE COMMISSIONER: So we can talk about dates. We'll go off the record now.

OFF THE RECORD [11.34 AM]

ON THE RECORD [11.37 AM]

PN97

THE COMMISSIONER: During that short break I have discussed the progressing of this matter. I grant the TNT application for an adjournment based on new material being produced today and their need to respond thereto. The parties have agreed, and I agree, that this matter be adjourned to 10.30 am on 14 January 2016. The parties are urged to attempt to settle the matter between now and then. I'm adjourned.

ADJOURNED UNTIL THURSDAY, 14 JANUARY 2016 [11.38 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TNT1 TNT'S OUTLINE OF SUBMISSIONS................................. PN27

EXHIBIT #TNT2 LETTER FROM TNT TO MR PAEKAU DATED 21/09/2015 PN34

EXHIBIT #TNT3 UNDATED LETTER FROM MR PAEKAU TO TNT...... PN38

EXHIBIT #TNT4 LETTER TO MR PAEKAU FROM TNT DATED 25/09/2015 PN48

EXHIBIT #PAEKAU1 RESPONDENT'S WRITTEN SUBMISSIONS HEADED "TO WHOM IT MAY CONCERN"............................................................................................ PN71