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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052805
DEPUTY PRESIDENT SAMS
C2015/5862
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Forster Tuncurry Golf Club Ltd T/A Forster Tuncurry Golf Club
and
Mr Martin Crew
(C2015/5862)
Sydney
10.06 AM, WEDNESDAY, 2 DECEMBER 2015
PN1
THE DEPUTY PRESIDENT: Could I have the appearances?
PN2
MR M USHAKOFF: Yes, your Honour. Ushakoff, M, for the Registered Clubs Association of New South Wales, appearing on behalf of the applicant, Forster Tuncurry Golf Club.
PN3
THE DEPUTY PRESIDENT: Thank you.
PN4
MR M DUSEVIC: Thank you, your Honour. Dusevic, initial M, here on behalf of Mr Crew, the respondent in this matter. I have Mr Crew to my left today.
PN5
THE DEPUTY PRESIDENT: Thank you. Are we ready to proceed with the hearing?
PN6
MR USHAKOFF: Yes, your Honour.
PN7
MR DUSEVIC: Yes.
PN8
THE DEPUTY PRESIDENT: Yes. Mr Ushakoff?
PN9
MR USHAKOFF: Thank you, your Honour. Your Honour, Forster Tuncurry Golf Club have made an application to vary redundancy pay under section 120 of the Fair Work Act in relation to the termination of the employment of Mr Martin Crew, the respondent. The club seeks to rely on section 121(b) to reduce Mr Crew's redundancy pay entitlement to nil or to have it considerably reduced and in this case the club will be submitting that it has obtained other acceptable employment for Mr Crew as contemplated by section 121(b) by providing him with offers of employment that contain identical conditions of employment to his previous role.
PN10
Now, today we will show that all offers of employment made to Mr Crew since June of 2015 constitute other acceptable employment. Those offers were on the basis of offering him the same rate of pay, the same position of bar supervisor, and for his employment to be governed by the same flexible hours of work provisions of the modern award, that is, the Registered and Licensed clubs Award 2010. The only substantive difference to Mr Crew's conditions of employment in these offers was the location of work which, Mr Crew himself has conceded, is not an issue in these proceedings, and essentially the same distance from his home as the Tuncurry site where he previously worked.
PN11
Mr Crew and his representative claim that the hours of work offered to him do not constitute other acceptable employment as they differ from the set roster that the club had provided for him for the last two years due to the illness of his wife. However, part-time employees' hours in the club industry are not fixed due to the flexible rostering provisions of the modern award.
PN12
Mr Crew's hours of work are governed by the part-time hours of work provisions in the modern award contained in clause 10.4(b) for part-time employees that commenced employment before 31 December 2014. These state that a part-time employee's hours of work can be set in accordance with the roster under clause 25 of the award. Clause 25 essentially allows employers to set employees' hours of work so long as they are provided with seven days' notice. Clause 8.2 of the award, however, requires that a club consult with an employee if they are seeking to change an employee's hours of work if they have a regular roster or ordinary of hours of work. As a result of this the club was required to consult with Mr Crew if it were to change his hours of work as permitted by the award.
PN13
We will show today that the club consulted with Mr Crew on 25 June, 3 July and 24 July 2015 in relation to the changes to his of work as required by clause 8.2. They gave him a substantial opportunity to put his views to the club in relation to this change including in relation to his carer's responsibilities as required by clause 8.2(b)(ii). He was allowed to have a representative present during the process. The club considered his proposals and, whilst initially rejecting his demands for day work on the basis of operational requirements, they offered to discuss the option of three day shifts with him on 24 July 2015. Mr Crew declined the opportunity to discuss this option of day time shifts on that date.
PN14
Following Mr Crew's termination of employment and during the early stages of these proceedings the club again offered Mr Crew three day time shifts which we refused. The club was then made aware of Mr Crew's specific responsibilities as a carer in relation to the treatment regime of his wife. The club subsequently made an offer of employment of three day shifts per week with no shifts to be rostered on Monday and Wednesday as Mr Crew requires these days off to take his wife to medical appointments, and this offer was also refused.
PN15
At all times the club has offered Mr Crew employment in accordance with his previous employment conditions and following consultation as required by those conditions of employment under the modern award. The only difference to his role is the location of work, which is not a significant enough difference to warrant finding that the club has not offered the applicant other acceptable employment.
PN16
Your Honour, before we go any further I would like to submit the case authorities that the applicant seeks to rely upon in this matter. I must state that I have five of the six cases here. I've mislaid the sixth, but I propose to send a copy to Mr Dusevic and to yourself, your chambers this afternoon via email if that is appropriate. I'll just tender a copy of each of the authorities.
PN17
THE DEPUTY PRESIDENT: I won't mark the authorities.
PN18
MR USHAKOFF: Your Honour, I'd like to call the applicant's first witness in this matter. I'd like to call Mr Chris Turner, the general manager of the Forster Tuncurry Golf Club.
PN19
THE DEPUTY PRESIDENT: Yes. Mr Webster is here, isn't he?
PN20
MR USHAKOFF: Yes, Mr Webster is also here.
PN21
THE DEPUTY PRESIDENT: Well, while Mr Turner is giving evidence he's to step outside.
PN22
MR USHAKOFF: Yes, not a problem. Not a problem.
PN23
THE ASSOCIATE: Please state your full name and your address.
MR TURNER: Christopher Michael Turner (address supplied).
<CHRISTOPHER MICHAEL TURNER, SWORN [11.14 AM]
EXAMINATION-IN-CHIEF BY MR USHAKOFF [11.14 AM]
PN25
MR USHAKOFF: Mr Turner, do you have before you a statement that was written by you on 9 October 2014?‑‑‑Yes, I do.
PN26
Can I confirm that that was written by you in your hand on 9 October 2015?‑‑‑Yes.
PN27
Your Honour, I would like to tender that statement as evidence in this matter, and for it to be marked as read.
PN28
THE DEPUTY PRESIDENT: Yes. Any objection?
*** CHRISTOPHER MICHAEL TURNER XN MR USHAKOFF
PN29
MR DUSEVIC: No objection.
THE DEPUTY PRESIDENT: I'll mark the statement of Christopher Michael Turner exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF CHRISTOPHER MICHAEL TURNER DATED 09/10/2015
PN31
MR USHAKOFF: Thank you, your Honour. Mr Turner, do you also have an additional statement before you dated 30 October 2015?‑‑‑Yes, I do.
PN32
Can I confirm that that was written in your hand on that date?‑‑‑Yes.
PN33
Your Honour, I would like to tender the additional statement as evidence in this matter and have it marked as read.
PN34
THE DEPUTY PRESIDENT: Any objection?
PN35
MR DUSEVIC: No objection.
THE DEPUTY PRESIDENT: I'll mark the supplementary statement of Christopher Michael Turner exhibit 2.
EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF CHRISTOPHER MICHAEL TURNER DATED 30/10/2015
PN37
MR USHAKOFF: I have nothing further, your Honour, from Mr Turner.
THE DEPUTY PRESIDENT: Thank you.
CROSS-EXAMINATION BY MR DUSEVIC [10.15 AM]
PN39
MR DUSEVIC: Mr Turner, may I bring you to point 4 of your statement. Which statement? The initial statement?‑‑‑Yes.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN40
So there's the statement involved in-chief. Point 4, second paragraph, you make a statement here that you accepted to convert the applicant's employment to a set roster of 20 to 23 hours per week. You've also stated, this was because of the ill health of his wife and because he was now required to care for her at home as she had returned from hospital, and that the golf club accommodated this request to a set three day roster and not to work night shifts to look after his wife as a result?‑‑‑Yes.
PN41
During the course of, from August 2013 to, say, today ‑ ‑ ‑?‑‑‑Mm-hm.
PN42
‑ ‑ ‑did you have any further discussions with Mr Crew either at the workplace, in passing, in relation to his wife's conditions?‑‑‑Well, from August 2013, you said?
PN43
Yes?‑‑‑Yes. Well, Martin would come over once a week on a Friday before he commenced work at Tuncurry. I encouraged him to do that because I thought it was good for Martin to feel like he was still part of a team. He was working at Tuncurry where most of the supervisors were at Forster. Martin would come over and pick up any stock that had to be taken back to Tuncurry. We would pay him from the time he arrived at our club, and as I said, I thought it was good that he maintained some contact with his fellow peers. During that time, especially initially, I would also I would inquire to Martin about the health of his wife, because I did know that she had suffered a fairly severe stroke.
PN44
Thank you. And in those conversations was it of your opinion that Martin needed to maintain his current pattern of work due to his care and responsibility and the health of his wife?‑‑‑Well, he had come to us and requested that his roster be changed, and I thought, at that stage, that his reasons for doing that were valid. He did. In the initial stages, his wife was fairly critical. I believe the golf club had a great deal of empathy for him and for his wife, so we were to accommodate his request.
PN45
At that time did you ask him to put anything in writing at all, or make any specific requests in writing?‑‑‑Regarding?
PN46
Regarding the flexibilities or regarding the set three days?‑‑‑No.
PN47
Would you consider that the arrangement, at that point in time, was an ongoing agreement between yourself and Mr Crew?‑‑‑Yes.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN48
Did he also at all give you any updates as to her improvements regarding her health?‑‑‑Yes, as I mentioned earlier, I, especially during the initial stages, you know, I was interested in how she was coping, and if her health was improving. So, yes, I did. Probably often in the first few months, and, you know, Martin would tell me that she was improving and she was, you know, she was able to do certain tasks that, as her health improved, she couldn't do initially when she had the stroke. But probably after the first, I don't know, three or four months, those discussions kind of tapered off a bit because I just assumed that she was gradually getting back to some degree of good health.
PN49
However, you did have ongoing discussions or regular discussions every Friday, as you've stated, so you weren't ignorant to the fact that she needed ongoing care and treatment?‑‑‑No, I'd realised that she'd suffered a fairly severe stroke.
PN50
And you recognised that up until the separation of employment?‑‑‑Well, I'd recognised the fact that she'd had a stroke. Occasionally I would ask Martin how his wife was coming along, and, you know, he would give me an update on that. To me she seemed to be improving. Her health seemed to be improving. Yes.
PN51
The reason you've explained for sourcing out the Tuncurry site is due to cost cutting exercise which is entirely your decision, and opinion operationally. You've stated in point 5, the last point that you've made, that contracting out the Tuncurry site that is estimated to save the club $50,000 per year in wages; is that becoming a reality?‑‑‑Yes.
PN52
Yes?‑‑‑Yes. We don't employ anybody at Tuncurry from August 1, and that's when Martin's services were terminated. The golf professional approached us about sharing duties. He felt, and he was often there, that if there was down time, as far as when Martin was working, and I think Martin agreed with that, there'd be times when there'd be no customers to serve, and he had the same feeling with his pro-shop staff because of the rise and fall of demand. There were times when they both had down time, so he approached the club with an idea of utilising his staff to do both duties, so we have not paid any wages to any employee since Martin finished there.
PN53
And I guess that $50,000 is in relation to wages, costs of operating, electricity?‑‑‑No, no, no, it's basically wages and on-costs, which would be super and Workers' Comp. Now, Martin was not getting $50,000 but Martin was only working there for three shifts a week. On the majority of days the club was open there for another two days and sometimes three days. Sometimes if there was a golf competition on we would roster staff there on a Sunday.
PN54
And does the current contractor who's running the site also pay a fee to the club to rent that out?‑‑‑Yes, he does.
PN55
May I ask how much that is?‑‑‑That's about $3000 a month.
PN56
Okay?‑‑‑But he's also paid a commission on the bar sales.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN57
Okay?‑‑‑So it's a better deal for him and it's obviously a better deal for us.
PN58
So financially quite a stable, in perspective, quite a outlook with the current ‑ ‑ ‑?‑‑‑I think it's a good outlook for both parties.
PN59
Yes?‑‑‑Yes.
PN60
My next point is in relation to your statement, point 6, the third paragraph. You state in this point that:
PN61
We couldn't provide Martin with the same roster as the Tuncurry site due to the pressure it would put on other supervisors at Forster who would lose day shifts and work more nights and weekends than they currently were working as a result. We also required flexibility in staff if there were absences for example, and it would be hard for Kevin Webster to manage the rosters and insert a fixed roster into a rolling roster of the three other bar supervisors.
PN62
With that point we do understand that currently the supervisors work a rotating roster?‑‑‑Yes.
PN63
At that point in time were you requiring Martin, or Mr Crew, to work that rotating roster?‑‑‑I think our final offer to Martin was that we would offer him a three day time roster, but that would be rotated. Martin had made the comment right from the first meeting that he did not think the other supervisors would take too kindly to him being transferred over to Forster, and to be working only day time rosters. He thought that it could create some tension between him and the other supervisors.
PN64
Would you agree with that?‑‑‑I'd agree with that. Yes.
PN65
So you had some detailed discussions through this process. There were a matter of different things raised, discussed between the parties?‑‑‑Yes, there were. There were but I was always under the impression that Martin did not want to work at Forster. That was the feeling that I had from some of his answers. We had rosters prepared for him on the first at our first meeting day, on 25 June, and we asked him did he want to look at them, and he said no that he didn't.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN66
Okay. On the 25th or 26th, either of, that was the initial first time that you've advised Mr Crew that his position had been made redundant. You gave him the specifics or the background in terms of the operations of the Tuncurry site. At that point in time did Mr Crew ask the question, with yourself and Mr Webster in the room, "Would I be required to work weekends and nights?"?‑‑‑I really can't recall. Well, I can't recall specifically whether Martin asked that question or not.
PN67
Did you have a roster prepared at that point in time?‑‑‑Yes, we did. Yes.
PN68
Okay. And I'm referring to 25/26 June. Did Martin confirm that he was unable to work nightshifts?‑‑‑My recollection was that Martin didn't really commit much, or say much in return at that meeting. He just seemed to take it all in and then I think he said he was going to get advice on what his standing or what his rights were.
PN69
Mr Webster's statement, point 6, and I'll quote this. Point 6 states that, and for his Honour, and that's the statement in-chief. Point 6 of Mr Webster's statement, being the discussion on the 24th I believe it was, not the 25th or 26th, so just correct that. It states midway down in the paragraph, and this was at the meeting that was had between the parties:
PN70
Mr Turner turned to Mr Crew and said, 'If the club was able to offer you day shift times would you come to the Forster site?' Mr Crew replied, 'No.' He said, 'The other supervisors won't like me working over there because I'll be working days and not nights and do not have weekends, and the other supervisors would not like it.'
PN71
So you're saying on 24 June you offered day shifts to Mr Crew?‑‑‑I asked him would he consider it. Yes.
PN72
At that point in time?‑‑‑Yes, and he said no.
PN73
Okay. Can I bring you to your secondary statement, the one filed in response to the respondent's material, point 3. So you say that:
PN74
For these supervisors the club utilised grade 3 casuals staff as supervisors for certain shifts at the Forster site when the permanent grade 5 supervisor cannot perform a shift due to the roster pressures, however, casuals could refuse these shifts.
PN75
The main point is this next part:
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN76
As a result I believe it is essential that Martin's shifts be allocated on a rotating roster basis so that employees can feel they are being treated fairly in the allocation of day, weekends, and nightshifts.
PN77
So you're telling me you offered day shifts from the beginning but on the other hand you're telling me, as one of your final points in your response statement, that you believe for employees to be treated fairly that they need to be allocated day, weekends and nightshifts?‑‑‑Mm-hm.
PN78
Would you still form and hold that opinion that supervisors should be working rotating rosters of days, weekends and nights?‑‑‑Yes, I do.
PN79
It's in your opinion Mr Crew, of course, disagrees that any day shifts were offered to him and we'll get around to that in a minute, only after the termination of his employment. Would you agree to this?‑‑‑No.
PN80
Okay. Were any offers of day shift or day work to him genuine offers considering your opinion that you needed supervisors to be flexible to cover sickies, to cover absences and to ensure that they worked weekends and nights?‑‑‑I just wanted to get an opinion from Martin as to whether he would be interested he showed no interest at all at our first meeting in looking at the rosters that Mr Webster had prepared for him, and I just wanted to ask the question, if it could be done, was Martin really interested in day time rosters at Forster and he said no.
PN81
So there wasn't any formal ‑ ‑ ‑?‑‑‑There was no formal offer.
PN82
So it was still the ifs and buts, nothing confirmed in terms of day shifts?‑‑‑Yes. That's right.
PN83
If or maybe?‑‑‑Yes.
PN84
But nothing confirmed?‑‑‑I was surprised that Martin showed no interest in the rosters that Mr Webster had prepared for him.
PN85
Mr Crew has stated and Mr Webster, and part of his material and evidence here in terms of relying upon states quite contrary that any day shifts were offered on the 24th. The rosters that have been provided to us attached to his statement are only nightshifts at the Tuncurry site; would you agree with that?‑‑‑Mm-hm.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN86
So would you agree that the only roster on the 24th was for nightshift?‑‑‑No, no, Mr Webster had prepared, I think, three different rosters for Mr Crew to peruse, but Martin didn't ‑ ‑ ‑
PN87
At that point in time, at the first initial time when you handed a letter to Mr Crew you had rosters prepared and ready to go?‑‑‑Yes. Yes. Yes. We had rosters ready to show Martin.
PN88
Yes?‑‑‑But he showed no interest in looking at them.
PN89
Okay. In addition to your response or your reply statement, point 4 being the last point, you state here:
PN90
In relation to Mr Crew's wife's medical treatment details I knew none of this until after the termination of his employment. He had said to me previously that he couldn't work nightshifts as he thought he could not leave her, but I knew nothing of the concise details mentioned in his statement.
PN91
?‑‑‑Yes.
PN92
Yet you're telling me, from August 2013 up until the separation of employment, you had regular discussions, ongoing discussions, he gave you feedback. Was this not sufficient enough for you to form an opinion?‑‑‑No, I had no idea of the concise details of the appointments that Martin's wife had. He did not go into that detail.
PN93
Did you ever ask?‑‑‑Well, I asked about the standard of his wife's health and - as I mentioned earlier, but as far as appointments with doctors and physiotherapists and how long that was taking and all that, no, I had no idea.
PN94
You knew she was on a rehabilitation plan and she ‑ ‑ ‑?‑‑‑Yes, I did.
PN95
That there was a serious injury and it took a lot of progressive rehabilitation?‑‑‑Of course, yes. Yes. But the actual concise details, I don't believe Martin and I actually went into that detail.
PN96
Yes?‑‑‑As he supplied in his statement.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN97
And you're aware of that now. Would you have formed a different outcome at the time?‑‑‑No. I believe our dealings with Martin right through this have been fair, and I think Martin made that comment himself in one of his submissions. We were very flexible with his request for time off. I do even recall giving him days off where he was paid where it wasn't sick leave. That was initially when his wife first suffered the stroke. You know, it happened at a busy time of the year for us, but I thought we were more than fair with our treatment of Martin.
PN98
He wasn't a difficult employee. In 2010 when you asked him to convert his employment, take a cut in wages from full time to part time, from a 38 hour week down to a 34, which then reduced, and of course to accommodate the club's flexibility, and at that point in time, the Tuncurry site still wasn't doing the best?‑‑‑No.
PN99
But he accommodated the club, he was forthcoming and he was willing to support the club in that regard?‑‑‑Yes he did, and he was - but he wasn't the only one. He was offered a redundancy at that stage as were the club had a, which I believe was a system that didn't work. They had about they didn't have a bar manager. They had five level 5 supervisors who were working up to 40 hours a week fixed, and the club financially was really suffering, so I spoke to all the level 5 supervisors and said, "Look, we cannot continue this process of employment with you guys because it's putting the future of the club into dire straits. So I think there was five an offer of a redundancy payment was made for the five employees. Obviously of which Martin was one of them. One of the employees accepted the offer and was paid out. The other four decided to accept the offer of going part time, part time permanent. Yes. So, you are correct, Martin did accept it but he wasn't the only one. There were three others that did it.
PN100
A little inconsistent with his alleged conduct that he was pushing for a redundancy or payout at that point in time?‑‑‑His behaviour what, since August 1?
PN101
Well, since you previously offered redundancy until the situation now occurring. He thought it was best or would you agree that he thought it was best to keep a job at some sort of hours rather than cash in on a redundancy?‑‑‑Yes. Yes, different circumstances, I think. I believe.
PN102
And what were the different circumstances? You mean his wife's condition?‑‑‑Well, that but also the condition of the club financially. When I went up there the club basically was a basket case.
PN103
Yes?‑‑‑It was months away. Matter of fact our auditors made a comment that we would not survive another 12 months.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN104
Yes?‑‑‑I went up there in August 2008 I think I had the conversation with the bar supervisors after a month after that.
PN105
Yes?‑‑‑And made them the offer.
PN106
And you paid out redundancies to the other staff that took it?‑‑‑To one staff member, yes.
PN107
To one. To the other one. And Mr Crew didn't take it. He thought, "No, I'll continue working."?‑‑‑No. That's right.
PN108
But that was prior to his wife's injury?‑‑‑Yes.
PN109
Yes. And you realised that the goal posts then moved when his wife had the injury and his need to maintain a set roster?‑‑‑Yes. And I believe the club accommodated him in that area.
PN110
Is there anything else further that you need to know about his wife's condition at all?‑‑‑Do I need to know ‑ ‑ ‑
PN111
To know anything else? You've claimed through your statement that it was very that Mr Crew was very vague on the details, and "we weren't very aware of the circumstances of his wife's condition", the specifics of the condition?‑‑‑Yes.
PN112
You're saying that even had you known that, what you know now up until this point, that wouldn't have changed the decision?‑‑‑No, it wouldn't. No.
PN113
Okay. So you're saying that the discussions that you had with Mr Crew were quite irrelevant as you had a set position from the start?‑‑‑No, I wouldn't say that it was irrelevant. I think I'd be failing in my duty as a manager if I didn't take an interest in Martin's wife and her health, but all I'm saying is that I had no concise details of the amount of treatment that she was undertaking; the visits to the doctors and the physiotherapists and that I did not know that until I read it in Martin's statement.
PN114
Thank you. I might have missed the point when I referred you to an earlier one being point 6 but I'll go on to point 8 which I think has bit of an importance and this is back to the it's still on 24 July, the last paragraph?‑‑‑Mm-hm.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN115
You just told me that at the time of that initial discussion that you had two sets of rosters, a combination of a rotating roster, which you're aware - and still offered to Mr Crew, being aware that he was unable to work nights, through your conversations and discussions with him and his responsibilities to his wife, but the last paragraph, and this is in the meeting on the 24th:
PN116
I mentioned in the meeting that a number of shifts had been prepared that involved day rosters and a combination of day and night rosters, annexure E. These were available at the meeting but following Martin's response to the earlier question they were not asked for or produced.
PN117
What was Martin's response to the earlier question?‑‑‑I think Mr Webster asked him would he like to have a look at the rosters Mr Webster had prepared and Martin said no.
PN118
Yes. Okay. You've attached those rosters and the only one I've got requires Mr Crew, Martin working 4.30 pm/TN, which I assume means till needed?‑‑‑Yes.
PN119
Are you aware that that's the incorrect rostering procedures for part time? Part-timers are required to have a roster finishing time?‑‑‑Okay. No. Okay.
PN120
Not aware of that?‑‑‑I concede that point. Yes.
PN121
Okay. I haven't got any other material to show me that the day shifts were offered at that point in time but for what you're saying. Just a roster of nightshifts?‑‑‑If I can just have a look at the shifts here.
PN122
Yes, have a look. Yes. I might have missed it but I can't see attached to annexure E. I've got two pages. So two rosters, the first week being and the second week. So the first week being 4.30 till needed on Thursday and Friday. Saturday is the duty manager. The following rotating week was 4.30 till needed Thursday, Friday and Saturday without a duty manager shift?‑‑‑Yes.
PN123
And for what reason a map ‑ ‑ ‑?‑‑‑If I can draw your attention to appendix A.
PN124
Yes?‑‑‑There's a shift here for Martin that starts on the Thursday at 10 o'clock and finishes at 6 pm and that's the same with the Friday and the Saturday.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN125
Well, is that not the one that you alleged was provided in the final meeting in July, other than June?‑‑‑This ‑ ‑ ‑
PN126
That was prepared at the first discussion that you had? Sorry let me just clarify for you. I might have got that a little mixed up. Let me just go to your response statement. Sorry on 26 June that was. So are you saying that was the one that was prepared on 26 June?‑‑‑I can't answer that. I don't know because Mr Webster prepared it.
PN127
Yes. Okay?‑‑‑And I did not peruse those rosters.
PN128
Okay?‑‑‑Compilation of the rosters is Mr Webster's domain. He does that. But I he had told me that he had prepared different rosters for Martin to show him at that meeting on 26 June.
PN129
Yes?‑‑‑And Martin refused to examine them.
PN130
Okay?‑‑‑But that appendix A that I'm referring to, those three rosters obviously are day shifts.
PN131
Yes. A quick question on those three shifts: 10 till I've got a 10 onwards. I've reviewed the previous rosters. Did you create these shifts for Mr Crew, because these shifts never have seemed to be on the roster prior to this?‑‑‑Yes, I - you're right, I can't recall rosters where someone starts at 10 o'clock and finishes at 6, but I think Mr Webster was trying to give some options for Martin to consider.
PN132
But were those shifts going to be maintained? If you've just created shifts, you're cutting costs, you've - have you done it just to make things look good as opposed to being genuine with those shifts? Because I couldn't see those shifts being approved by the board, firstly, as there would be additional cost. These shifts have never been needed before, and whether they were to be maintained is a big question that I have. Would they have been maintained? That you've created these shifts for Mr Crew?‑‑‑Well, I believe they would have been, yes.
PN133
But you couldn't lock them in? You've created these shifts for him; why couldn't you have locked these shifts in from the date of separation moving forward? If you were happy to incur further costs in your rostering by creating shifts that weren't needed?‑‑‑Well, these shifts here would be replacing the hours that were catered for under a previous shift.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN134
No, they weren't?‑‑‑Under a previous roster system.
PN135
They weren't, because your previous rosters don't ever - well, don't have these shifts at all on them. They're the shifts - every other shift is comparable to previous rosters but for these three that were created?‑‑‑I can only answer I believed that we were trying to give Mr Crew some options where he could continue his employment with us.
PN136
You created these shifts though, but then you told him that he needed to work a rotating roster?‑‑‑Yes.
PN137
How does that work? This is just to look good. Really it's just to look good. To make the rosters fit the criteria, would you agree?‑‑‑No, I don't, no.
PN138
Make the argument fit the criteria?‑‑‑No, I don't.
PN139
Okay. However, those shifts were created just as confirmation. They were never shifts existing at that site?‑‑‑That's correct, yes.
PN140
In relation to point 10 - I'm just going through some of the financials of the club - you've stated that the club in the last financial - sorry - make a small profit of 17,000. (indistinct) losses of 56,000. So the club was trading quite well based on the 2004 figures. 73,000 profit - overturn?‑‑‑73? I don't understand how you got that?
PN141
Because it was in negative 56. Actually I took that from the financial report?‑‑‑What? The improvement?
PN142
Yes. Yes?‑‑‑Yes. Yes.
PN143
You do know what I'm talking about?‑‑‑I'm sorry?
PN144
You do know what I'm talking about?‑‑‑Yes, I do, yes.
PN145
Do you think - the point here:
PN146
The prospect of paying up to 13 weeks' redundancy pay will have further negative effect on our financial performance this year.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN147
What do you mean by "negative effect on our financial performance"?‑‑‑Well, it's an amount of money that we would obviously have to find. We had a - running a golf club is very much dependent on the weather.
PN148
Haven't you already found the money with contracting out - leasing out prospects of $50,000, which you say is currently on track, with also incoming moneys of - what was it - 3,200 that the current contract is paying you?‑‑‑3,000?
PN149
3,000, yes?‑‑‑Yes, but contractor is being paid a commission on the sales.
PN150
Yes?‑‑‑And so the club is not receiving the total value of the sales like it did when Martin was the bar manager there.
PN151
Yes?‑‑‑And the contractor is paying us $3,000 a month, rent, for want of a better word, but he is getting paid a commission based on the sales that the Tuncurry bar make.
PN152
But we're looking at reports from February 2015, this year. Where is the club currently? What has happened from February to today? How is the performance?‑‑‑Well, as I mention in my report, I think we were some $94,000 below budget for the first five months. We had - that has turned around a bit. I think our current budget performance is about 60,000 below budget. But we will not - even though we're going into best time of the year, being the Christmas holiday period, our budgets are so tight that we will not make a profit this year. We will lose money. I did a report to the board. I've got a board meeting on tomorrow morning where I've estimated that we will lose $60,000 for this financial year?
PN153
When do you mean lose? You mean - - -?‑‑‑Our profit and loss will be a loss of $60,000.
PN154
Okay. It's because you're investing in the club, is it?‑‑‑I'm sorry?
PN155
Because you're investing in the club?‑‑‑Well, it's for a number of reasons. We have two golf courses to maintain up in Foster and Tuncurry. There are a lot of golf clubs going broke these days because they cannot afford to maintain one golf course. We've got two to maintain.
PN156
Are those costs relative to previous years?‑‑‑Yes.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN157
I can understand if you're budgeting - your usual forecasting that - the sale of that site or the Forster site, will project profits for your club, and will then turn into $50,000 as project budget of the sale from the contracting out of that site. The costs haven't changed from the previous year?‑‑‑As I said earlier, we are totally dependent on the weather, and we had some fairly bad weather in May, June and July where it - - -
PN158
Yes?‑‑‑Now, that obviously - you must realise, yourself, that effects the number of people who can play golf.
PN159
That's seasonal though. That's a seasonal thing?‑‑‑No, that's not a seasonal thing. That's when you get a run of bad weather. That's not seasonal. To my mind, seasonal is we look forward to the December/January period because we get a lot of tourists up there.
PN160
So - - -?‑‑‑Now, if we were to get bad weather in December and January, that would really, really affect us dearly. Where it would force us then to make some fairly difficult decisions on the - going forward.
PN161
I will get to the point. I think the club is trading fine and paying Mr Crew a redundancy of five thousand odd dollars would not put the club into administration, bankruptcy or cause that kind of heartache?‑‑‑No. No, it wouldn't but it's with all costs, you know, I'm charged with decisions to make sure that the club is run efficiently, and that's part of my job to look at all costs. Not only wage costs but other costs, with a view to keeping them within limits or even reducing them. I recently entered into a new power agreement which is saving the club a lot of money. And that's my job.
PN162
So, look, you're saving money here, and you're making money elsewhere. Financially the club is doing well. For example, when Mr Webster goes on annual leave you have someone cover his shifts for that period. Say it was four weeks Mr Webster went on annual leave. You have someone cover his shifts?‑‑‑Yes.
PN163
Are you able to pay him his annual leave entitlements?‑‑‑Yes.
PN164
Without issue?‑‑‑Yes. But that's - if we had issues we shouldn't be trading. If we - - -
PN165
Well, that's why we're here.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN166
MR USHAKOFF: Your Honour, I would like to object on the basis that the club is not pursuing this application because of financial difficulties but merely because it has obtained what they consider to be acceptable other employment. We consider the financial position of the club to be irrelevant to that decision.
PN167
MR DUSEVIC: Your Honour, the applicant's application, firstly, was on the basis of both arguments. That the club aren't in a financial position and that they have offered acceptable other employment. Their submissions have stated that same fact, and it has been relied upon.
PN168
MR USHAKOFF: Your Honour, the submissions state that we are not pursuing the application on that basis, which is the second limb of the test under section 120. The club is not pursuing the application on that basis, as outlined in the submissions.
PN169
MR DUSEVIC: Thank you. Your Honour, so on that basis I won't be speaking to the finances of the club any further. My interpretation, based on the application, based on their submissions - not the secondary submissions but based on the structure of the applicant's argument and the way that they've interpreted everything, was a second leg relying upon the finances of the club. And it has been quite a heavy point through these discussions. That's why I was focusing on these points. But now that it has been wiped as an argument, we will let that go and we won't make any submissions to the viability of the club and the financial position of the club, and the labour at this day. Do you believe Mr Crew has been quite forthcoming with the information during this process?‑‑‑In - - -
PN170
He has been willing to meet with you on a number of occasions. He has been - would you agree with that?‑‑‑Yes, he has.
PN171
And he has been forthcoming with any questions the club have asked of him?‑‑‑Well, most of those questions have gone through our advocate back to yourself. I really haven't - other than our initial two meetings and then a meeting with you, I haven't had any conversations with Martin regarding this.
PN172
So you have done little to explore his need - Mr Crew's need to maintain a set roster. You've done little to explore that up until the later stages after the separation?‑‑‑Well, I think as I mentioned earlier, I certainly got the impression right from the start that Mr Crew was not interested in working at Forster. And I haven't taken that any further. I just got the - as I said, got the impression that he didn't want to look at rosters we had prepared for him. I did ask him the hypothetical question, if day rosters could be arranged would he consider working at Forster and his answer was an emphatic "no". So - - -
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN173
Well, everything you have raised is very vague in terms of the meetings and discussions. Mr Crew has been quite clear with his statement and he has confirmed that the first two meetings, that the club never offered him any day rotating - or any day shifts that the rosters, as communicated at those meetings, was that he would be required to work nights.
PN174
Your statement - your final point - the final point in your response statement:
PN175
As a result, I believe it is essential that Martin's shifts be allocated on a rotating basis.
PN176
Essential. You couldn't roster him on day shifts, could you, and keep that going?‑‑‑I don't think that would have been the best outcome for the club, yes. But my responses have a lot to do with Martin's initial response, or answers to questions that were asked of him at the meetings.
PN177
Yes?‑‑‑And if someone is asked a question, "Are you interested in looking at the rosters?" And the answer is, "No." "Are you interested if it could be arranged that you could get day shifts working at Forster? Are you interested in that?" "No." It - - -
PN178
We will get to that because it's all ifs and buts; no promises?‑‑‑It's not ifs or buts. That's what Martin - that's the question that I asked him and that's the reply that he gave.
PN179
Are you not asking "if we gave you day shifts" - "if we were able to do this" - as opposed to your statement saying that it was essential to have rotating rosters. So you're telling us one thing that if - about the circumstances, the possibilities of what may have been discussed, but then you're making a very - and a sworn statement, saying that it is essential to have a rotating roster. At the end of the day Mr Crew would have been required, regardless of the nitty picky things that happened in the meetings that everyone is trying to rely upon, the specifics are - and as per your statement - he would need to work rotating rosters which would include night shifts. Something you were fully aware he could not do as per - - -
PN180
THE DEPUTY PRESIDENT: But that wasn't the final position, Mr Dusevic.
PN181
MR DUSEVIC: Sorry?
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN182
THE DEPUTY PRESIDENT: That wasn't the final position, the working of night shifts. I don't know why you're concentrating on working on night shifts because the final position had nothing to do with working night shifts.
PN183
MR DUSEVIC: Your Honour - - -
PN184
THE DEPUTY PRESIDENT: The club was making various offers to accommodate the request.
PN185
MR DUSEVIC: These offers are different.
PN186
THE DEPUTY PRESIDENT: You're going back to ones that were made initially as if to criticise the club for making those offers.
PN187
MR DUSEVIC: Your Honour, I think it's extremely valid.
PN188
THE DEPUTY PRESIDENT: They accepted your - a number of your requirements.
PN189
MR DUSEVIC: Yes, but whether they were genuine.
PN190
THE DEPUTY PRESIDENT: Well, how can - - -
PN191
MR DUSEVIC: I need to test - - -
PN192
THE DEPUTY PRESIDENT: I mean, if the general manager says he's going to do it - - -
PN193
MR DUSEVIC: Yes.
PN194
THE DEPUTY PRESIDENT: - - - you can't really be saying, well, we don't think you can. Do you?
PN195
MR DUSEVIC: Your Honour, I need to get onto that with Mr Webster's statement on the basis that it hasn't been explored but those requests were subject to additional provisions - approval of flexible working arrangements. So - - -
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN196
MR USHAKOFF: Your Honour, that was waived once the club found out the additional details around his treatment. So the club's final position did not require a request for flexible working arrangements.
PN197
THE DEPUTY PRESIDENT: And I thought Mondays and Wednesdays were going to be off.
PN198
MR DUSEVIC: Yes, that was the final position.
PN199
THE DEPUTY PRESIDENT: That's right.
PN200
MR DUSEVIC: The final position, and we will get to that, your Honour.
PN201
THE DEPUTY PRESIDENT: Well - - -
PN202
MR DUSEVIC: But prior to termination - this needs to be heavily explored - I'm not in a position after the club seeking advice and seeking good advice from my friends here, to construct this in a particular way to offer him duties that would satisfy the Commission or to make it look good for the Commission, when that was never the intent from the start.
PN203
THE DEPUTY PRESIDENT: Well, I don't know how you're going to prove that.
PN204
MR DUSEVIC: Well, Mr Turner's statement - - -
PN205
THE DEPUTY PRESIDENT: Unless you call into the credit of the witness.
PN206
MR DUSEVIC: I understand. I understand. But the point I'm making is Mr Turner's statement is quite specific.
PN207
As a result, I believe it is essential Martin's shifts be allocated on a rotating basis.
PN208
THE DEPUTY PRESIDENT: Yes, that was the final position. Avoiding Mondays and Wednesdays. No night shifts. But it would be rotating. Isn't that the final position?
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN209
MR DUSEVIC: No. No.
PN210
MR USHAKOFF: Yes, your Honour, that's the final position.
PN211
MR DUSEVIC: Your Honour - - -
PN212
THE DEPUTY PRESIDENT: Well, that's as I understood it.
PN213
MR DUSEVIC: That's correct, but not what this is saying. On the basis - so that employees can feel they are being treated fairly for the allocation of days, weekends and night shifts.
PN214
MR USHAKOFF: That's right, your Honour. Rotating rosters - it's on the basis - if I could clear up perhaps a misunderstanding. Your Honour, the issue with the rotating rosters and the fact that the club needed some flexibility in rostering Mr Crew, was due to the fact that the other supervisors had to work nights and weekends.
PN215
And if there was no flexibility for Martin's rostering, then that would create additional difficulties potentially with the other supervisors as they had to work nights and weekends and other days of the week, whilst Martin would have a set roster. Now, the club appreciated the specific treatment requirements of Mr Crew, but still required flexibility to at least show those other supervisors that Martin was able to work a flexible roster like they also had to do. So it was about equitable distribution of shifts across the board within the restrictions that are imposed upon the club and on Mr Crew by his wife's treatment.
PN216
THE DEPUTY PRESIDENT: But it didn't require night work, weekend work or work on Mondays or Wednesdays.
PN217
MR USHAKOFF: It didn't require work on Mondays, Wednesdays or night shifts. That's correct. But there still needed to be flexibility over the remaining five days of the week.
PN218
THE DEPUTY PRESIDENT: On the weekends.
PN219
MR USHAKOFF: On the weekends as well, yes, your Honour. That was the final position.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN220
MR DUSEVIC: That was - and this statement post-dates that final position of the club. And Mr Crew - I mean, sorry, Mr Turner's statement is specific that Mr Crew will be, despite that proposal, was - would - that it was essential for Mr Crew - essential. How that has changed, that he would work on a rotating basis, be treated fairly in the allocation of day, weekend and night shifts. Statement dated 13 October.
PN221
MR USHAKOFF: Your Honour, as a general principle I think it is fair that shifts are distributed equally, and that was the rationale behind the flexible rostering of the club, within the restrictions imposed by Mr Crew from his wife's conditions.
PN222
MR DUSEVIC: Mr Turner, do you recognise Mr Crew's need to maintain set rosters?‑‑‑Not fully. Martin has in the past been required to work Saturdays at the Forster club, and to his credit he has honoured those commitments.
PN223
And that was with prior notice?‑‑‑Yes.
PN224
Yes. And part of the correspondence to yourself through this process was if the club could provide sufficient notice - I think we sought about a six-week notice period of rostering. That if the club were able to provide him six weeks, that he would be able to be a lot more flexible. Did you understand that?‑‑‑Yes.
PN225
Did you understand that you can't just - well, if you have an ongoing specialist appointment which is specific on a Monday for Mr Crew, it's not easy to get a specialist appointment if you don't have a - - -?‑‑‑I thought we had shown our intention to accommodate Martin by agreeing to the Mondays and the Wednesdays. But it was our belief, as my advocate said, that we had to have a degree of flexibility about the rest of the days - the rest of the day shifts because of the morale of the other supervisors. Which is something that Martin had agreed to - had mentioned, I think, in his statement. So I - you know, I thought we were trying to be accommodating to Martin with our final offer.
PN226
And with Martin, you do recognise that his wife needs full-time care. That when he is not home, someone else has to be there?‑‑‑That's what Martin has said, yes, in his statement, yes.
PN227
And he has given you feedback in the past as to - and I think one example is that she has nearly burned the house down?‑‑‑Yes, he mentioned that incident to me, yes.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN228
Yes, which is why she needs fulltime care. You know it's difficult to find fulltime care?‑‑‑I would imagine it is, yes.
PN229
So would you recognise on that basis that he needs set patterns of work to attend appointments, to ensure family and friend arrangements can be made well in advance to look after his wife?‑‑‑Well, yes, I do but, you know, we're also trying to run a business and, you know, I believe we're being fair in trying to accommodate Martin's needs. But I think that's - you know, that has got to be taken with the fact that, you know, we are trying to run a golf club under at the moment probably financial circumstances that certainly could be a lot better. And I believe that our treatment of Martin - his requests for Mondays and Wednesdays was agreed to. But we believed that we would still have to have some degree of flexibility.
PN230
You could not lock in those shifts?‑‑‑No.
PN231
You could only offer day shifts?‑‑‑Yes.
PN232
And rosters are published how far in advance?‑‑‑Well - - -
PN233
One or two weeks?‑‑‑Well, I think Mr Webster does his rosters three weeks in advance, yes.
PN234
Three weeks. So is it ever four to two or one week?‑‑‑Sorry?
PN235
So is it ever four to two or one week's in advance with the rosters?‑‑‑I'm sorry, I don't - - -
PN236
Three weeks, but are they sometimes only two weeks - - -?‑‑‑Yes. Yes. Yes. That's correct. Yes.
PN237
Sometimes it's one weeks?‑‑‑Yes.
PN238
Sometimes that happens?‑‑‑Yes.
PN239
Do you understand the difficulties for Mr Crew in relation to having sporadic day shifts over a week, and organising care for his wife?‑‑‑Well, you're assuming that things are going to be changing all the time, and I don't know whether that's the case or not but - - -
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN240
The respondent says rotating day shifts?‑‑‑No. No. I'm talking about Mr Crew's wife's needs. I think what you're trying to make the point is that if we put Martin on a rotating day shift that one of those days shifts may not be suitable because his wife may have an urgent appointment or something that she has got to go to.
PN241
Not necessarily an appointment. It's that when he's at work, you know, he has to organise for someone to be at his house to be caring for his wife. He can't - he has to go through a list, ask the son, ask the daughter, ask the friends, and see who is available. Right. Do you think it's unreasonable for Mr Crew to have to factor in all of these concerns as part of his - what he needs moving forward?‑‑‑Well, I think if he is committing to a job, he has to have some degree of responsibility, yes.
PN242
And he hasn't shown that to you for the last seven years? It's just unfortunate this change has occurred putting him into this position?‑‑‑Look, it's unfortunate. I mean, I - as I said earlier, I fully sympathise with Martin and his wife because of the severity of the stroke she suffered. But I believe the club has had - as I've mentioned now a couple of times, I think we've tried to accommodate Martin's needs and - - -
PN243
Do you think his wife's need for care is a relevant factor in this matter?‑‑‑It's a relevant factor as far as Martin is concerned, yes. And I believe that by our actions we have shown that we do respect at times Martin's needs. But, as I said earlier, we - - -
PN244
Would you agree that he is quite tied down with his flexibility, himself?‑‑‑I really can't answer that question. I would say he has not got the freedom to come and go like I have, or we all have, because of the medical requirements of his wife. But if he is committing to a job, I think he has got to try to do the best to work around the requirements of the job and the responsibilities of the job, as well as juggle the responsibilities of looking after his wife.
PN245
In hindsight, if he knew what was around the corner, these unfortunate circumstances. These are the circumstances he faces. These are the circumstances he is in. Definitely not circumstances, I think, that anyone wants to be in?‑‑‑Sure.
PN246
Right. But you do agree that based on these circumstances they are relevant factors for his consideration?‑‑‑They are relevant factors for Martin's consideration, yes.
*** CHRISTOPHER MICHAEL TURNER XXN MR DUSEVIC
PN247
Yes. Thank you, your Honour. Thank you.
THE DEPUTY PRESIDENT: Thank you.
RE-EXAMINATION BY MR USHAKOFF [11.11 PM]
PN249
MR USHAKOFF: Mr Turner, I just want to ask you a couple of questions. Why could you no longer guarantee Martin a set roster like the roster you guaranteed him for the years from August 2013 to July 2015? Why could you no longer guarantee that roster at the Forster site?‑‑‑Well, it's an altogether different site. The Tuncurry site that Martin worked at was a one-man band, a much smaller operation than the Forster operation. And I guess to answer your question, is that the Forster operation has different needs. We're trying to - well, Kevin, Mr Webster, is trying to prepare rosters that accommodate another three supervisors - part-time permanent supervisors like Martin, as well as casual staff. So it's a lot more difficult to set a roster for Forster than it is for Tuncurry. And Tuncurry is just a one-man band, as I said.
PN250
Okay. So I just want to ask, why do you require flexibility at the Forster site?‑‑‑I think the main reason is to give the other supervisors there a fair rotation on the shifts. So they're obviously - give them their share, their fair share of day shifts, because like most of us they would prefer to work during the day than at night-time. And if we were to allocate a fixed day shift to Martin obviously that's fixed day shifts that they're missing out on. And the way that Mr Webster does his rosters is that he has his current permanent part-time people on a rotating shift. So they're shared equitably, I believe. And to look at some of the shifts available and just cut them out each week, I think is unfair to the current - the other current employees.
PN251
What other reasons are there for maintaining a flexibility in the workplace at the workplace at the Forster site? Are there any other advantages?‑‑‑Other advantages. Probably other than what I've just said, I can't - - -
PN252
What happens if someone is sick, for example? A supervisor is sick or another staff member; what happens then?‑‑‑Well, they contact Mr Webster and he will then probably try to get a casual in to fill them.
PN253
Okay?‑‑‑Or ask one of the other permanent part-time supervisors if they can come in and plug the gap temporarily.
PN254
Okay?‑‑‑Yes.
*** CHRISTOPHER MICHAEL TURNER RXN MR USHAKOFF
PN255
What happens if you have a big function coming up, or trade changes, or you need extra staff, what happens with the roster then?‑‑‑Mr Webster builds his roster around that. He would either allocate a permanent part time person to that particular function and support that person by some casual people. Most functions we do know of weeks in advance, so he can make arrangements for that to happen. That's how I'd answer that.
PN256
What offers of other employment were made to Mr Crew throughout this process from 26 June? What offers were made to him? What versions of the bar supervisor role were made to him throughout this process that you can recall?‑‑‑We explained to him what was happening with the Tuncurry bar being closed on 1 August. We had given him more than four weeks' notice I think which we were required to do. I spoke to Martin the day after a board meeting. The board normally meets on a Thursday and the board made the decision to go ahead with the recommended staffing changes at Tuncurry. The following day, Foster Tuncurry tends to be a place where rumours can start and spread around. I've had many discussions with Martin over the years regarding that and I've always said to him that if there was anything affecting his employment, that I would endeavour to let him know as soon as possible. We spoke to him the day after that, after the board made the decision.
PN257
What did you offer him on that day? What hours?‑‑‑We said that we would try to accommodate him at Foster, taking into account that we probably couldn't guarantee the same days that he had at Tuncurry. He said that he understood that. He fully understood that it may have an adverse effect on the morale of the other supervisors if he was to be given similar rostered days at Foster. Martin has worked at Foster and knows the system there. As I mentioned earlier, what I think at some stage we said to Martin, well, we've got rosters here prepared, a number of rosters, would you like to look at them, and he said no. Didn't want to peruse them.
PN258
What offers did you make to Mr Crew post the termination of his employment?‑‑‑Post the termination of his employment? After he was terminated?
PN259
Yes, sorry, in the proceedings that were initiated, there were various offers made during those proceedings as an attempt to resolve the matter and offer Mr Crew alternative employment. What were those offers, if you can just clarify the specifics of those offers of employment that were made?‑‑‑There were some different rosters prepared for him to show that he could - there was some rosters that involved night work and there was some rosters that involved day work on different days. I had the impression for a long time that Martin did not want to work on Saturdays. We had had discussions on a number of occasions about why Martin didn't want to work on Saturdays. We did make a number of offers to him but they were all refused.
*** CHRISTOPHER MICHAEL TURNER RXN MR USHAKOFF
PN260
What was the final position of the club in relation to offering Mr Crew continuing employment?‑‑‑Part of that was the offer of day shifts, but on a rotating basis.
PN261
What were the other aspects of that offer?‑‑‑Of that particular offer?
PN262
Of that final offer, yes? What were you willing to guarantee Mr Crew?‑‑‑We were going to try to guarantee a certain number of hours a week that were comparable to what he was getting when he was the bar manager for Tuncurry.
PN263
What accommodations were you making for his wife's treatment?‑‑‑Well, he said he couldn't work Mondays and Wednesdays, so we rebuilt that offer around that situation. We were trying to accommodate his needs and build them into what we thought was a fair roster for Foster.
PN264
Excellent, thank you Mr Turner.
THE DEPUTY PRESIDENT: Thank you Mr Turner, you may step down, you are released from your oath?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.20 AM]
PN266
MR USHAKOFF: Thank you, your Honour, I'd like to call Kevin Webster as the applicant's second witness in this matter.
PN267
THE DEPUTY PRESIDENT: Mr Turner doesn't have to go.
PN268
MR USHAKOFF: He doesn't have to go?
PN269
THE DEPUTY PRESIDENT: No, because he's given his evidence.
PN270
MR USHAKOFF: Okay, yes. You're allowed to stay.
PN271
THE DEPUTY PRESIDENT: He can't say any more once he's given his evidence.
MR USHAKOFF: No, that's right.
*** CHRISTOPHER MICHAEL TURNER RXN MR USHAKOFF
<KEVIN BENJAMIN WEBSTER, SWORN [11.22 AM]
EXAMINATION-IN-CHIEF BY MR USHAKOFF [11.22 AM]
PN273
MR USHAKOFF: Thank you Mr Webster. Do you have before you a statement made by you on 9 October 2015?‑‑‑Yes I do.
PN274
Can you verify that was in your own hand and written by you on that date?‑‑‑Yes it was.
PN275
I'd like to tender the statement of 9 October 2015 of Mr Kevin Webster and for it to be marked as read.
PN276
THE DEPUTY PRESIDENT: Any objection?
PN277
MR DUSEVIC: No objection.
THE DEPUTY PRESIDENT: I'll mark the statement of Kevin Webster exhibit 3.
EXHIBIT #3 WITNESS STATEMENT OF KEVIN WEBSTER DATED 09/10/2015
PN279
MR USHAKOFF: Thank you, your Honour. Mr Webster do you also have before you an additional statement made on 30 October 2015?‑‑‑I think it's just the original.
PN280
Just the original. I can provide a copy if that would assist. Can you confirm that that statement dated 30 October 2015 was written in your own hand on that date?‑‑‑Yes it was.
PN281
I'd like to tender the additional statement made by Kevin Webster as evidence in this matter and it is to be marked as read.
THE DEPUTY PRESIDENT: I'll mark the second statement of Kevin Webster as exhibit 4.
EXHIBIT #4 SECOND STATEMENT OF KEVIN WEBSTER DATED 30/10/2015
*** KEVIN BENJAMIN WEBSTER XN MR USHAKOFF
MR USHAKOFF: Thank you, your Honour. Nothing further.
CROSS-EXAMINATION BY MR DUSEVIC [11.25 AM]
PN284
MR DUSEVIC: Mr Webster if I may bring you to point 3 of your statement, third paragraph, so the last paragraph at the end of that page. You stated that in August 2015, Mr Crew requested a cut back on his days of work due to the ill health of his wife. How much information, how much did you know at this point in time in relation to Mr Crew's wife and her health?‑‑‑Just that she had some type of medical problem and that he needed to cut back on his hours.
PN285
Was there any reason for the club to refuse this?‑‑‑No.
PN286
You work mainly at the Foster site, is that correct?‑‑‑Correct.
PN287
In terms of your dealings with Mr Crew, how regular were they? Did you just see him on a weekly basis, fortnightly?‑‑‑No, not regularly. Sometimes if I was working a shift on a Friday I would see Martin, but that wasn't very regular. I started later and Martin had already left the club, the Foster site by the time I had started.
PN288
In relation to point 5 of your statement, you've mentioned that the first meeting between yourself and Mr Crew was on 3 July, however, the first meeting was on 26 June as per your additional statement provided. Is that correct? I bring you to your statement filed on 30 October. This was your statement in response to Mr Crews. You say at point 2 on 26 June "Mr Crew was informed of the club's financial situation which was the reason the employer was contracting out the Tuncurry bar". Point 3, the club has two casual staff which isn't really relevant. You've recognised 26 June being the first meeting?‑‑‑Yes.
PN289
That was not recognised or acknowledged by yourself in your original statement at all, or you forgot about that first discussion?‑‑‑That was just our first meeting to inform Martin of what was happening with the pro shop.
PN290
At that meeting, how did the discussion take place? What happened? You handed him a letter that his position was being made redundant at the Tuncurry site. Is that correct?‑‑‑Yes he was handed a letter to say that the hours would be changing, I think it was.
PN291
At that meeting, did you already pre-prepare rosters?‑‑‑Yes, I had some rosters prepared.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN292
Were those rosters rotating rosters?‑‑‑Yes they were.
PN293
They didn't incorporate day shifts at that point in time?‑‑‑No.
PN294
The only roster you had to provide to Mr Crew was a rotating roster in accordance with other supervisors?‑‑‑Correct.
PN295
Which would require him to work days, nights and a combination of such?‑‑‑Yes.
PN296
Then move to point 5 of your initial statement, statement filed in chief. Point 5, on Friday 30 July a meeting was held between Mr Chris Turner, Monica and myself. I'm more interested in the further part of that. Midway through the paragraph after the full stop Foster site. "I said to Mr Crew I prepared some alternative rosters for you which Mr Crew declined to view." Annexure C. When he declined to review them, why was that?‑‑‑I'm not sure.
PN297
Did he make a statement to you "Have they changed since our last discussion" being 26 June, that is?‑‑‑He didn't look at any rosters on 26 June either.
PN298
Did they still had night shifts?‑‑‑Yes.
PN299
That was the only thing that was provided to him at this point in time? No concrete day shifts, just a rotating roster of days and nights?‑‑‑Yes, it was a rotating roster.
PN300
For the first two meetings there were no day shift rosters ever produced, issued or ready for him to review?‑‑‑Not just day shifts, no. They were rotation.
PN301
In accordance with every other supervisor who works at the site?‑‑‑That's right.
PN302
You're in charge of the rosters?‑‑‑Yes.
PN303
So you're quite confident that what you're saying is the most accurate version of the account?‑‑‑Yes.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN304
How you produce the rosters is a computer system, excellent. In relation to the 26th - sorry if we're going back and forward but 26 June, that initial discussion when you advised Mr Crew that he would be required to work a rotating roster which included night shifts, what was his response?‑‑‑That he had to consider his options.
PN305
And you were aware that he couldn't work night shifts because of his wife's condition?‑‑‑Yes. I was aware that he worked day shifts at the Tuncurry site and that it would be harder for him.
PN306
On 3 July, same rosters were issued, so a combination of rotating rosters, days, night shifts and in accordance with every other supervisor. He further confirmed that he could not work night shifts?‑‑‑He said he'd have to consider his options.
PN307
Did he confirm again, as per the previous meeting that he could not work night shifts?‑‑‑Yes, he said his situation hadn't changed.
PN308
So whether he reviewed the roster or not, it made no difference to him not being able to work night shifts?‑‑‑No.
PN309
Apparently there were no day shifts whatsoever rostered on a rotating basis?‑‑‑No, it was a rotating roster.
PN310
Rotating, but no just day shifts?‑‑‑No, not just set day shifts.
PN311
After two meetings of Mr Crew confirming that he could not work night shifts, what was the club's view?‑‑‑Well we just needed to work out what would fit best.
PN312
Did you ask him any further details at either of those two meetings about his wife's condition, appointments, anything like that? Point 6, the following meeting, so the third meeting regarding these circumstances, Friday 24 July. You state at the end, and you quote that Mr Turner said to Mr Crew "If the club was able to offer you day shift times, would you come to the Foster site? Mr Crew replied no. He said the other supervisors won't like me working over there because I'll be working days and not nights and not weekends and the other supervisors won't like it."
PN313
On that point, would you agree with that? That the other supervisors would be unhappy if he was only to work day shifts?‑‑‑I would say so, yes.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN314
Do you that's a relevant factor in this matter considering whether he should be appointed only day shifts?‑‑‑I think it would make it hard for Martin to work, but it depends, you'd have to do- - -
PN315
Bit of a volatile working relationship as they'd be observing him to - on the basis that they believe he's getting preferential treatment?‑‑‑Yes, they probably might.
PN316
It is relevant that he raised and discussed that, that the other supervisors wouldn't be happy, correct?‑‑‑Yes.
PN317
When you say if, at that meeting, because you reference later in annexure C in terms of rosters, in that meeting, is it correct that you still had the same roster you provided in the previous two meetings of rotating shifts?‑‑‑yes.
PN318
So from the first meeting, second meeting and third meeting, you've kept the same roster throughout. At that time, when you say if the club were able to offer you day shifts, did you have day shifts ready to offer?‑‑‑Yes, I'd done up - there was a roster that I'd done if it was needed.
PN319
Would they have been locked in day shifts? Were they day shifts moving forward, something that would have been locked in, confirmed and been agreed to?‑‑‑Yes, and I would have worked the other supervisors around the roster.
PN320
We wouldn't be here if that's the case, because any day shifts that would have been concrete locked in moving forward, Mr Crew would have accepted. Do you recognise that? I mean if you were able to maintain a roster of Tuesday, Wednesday, Thursday, Friday, Monday and Saturday for argument's sake and presented that, and that would have been a continuing roster, locked in day shifts to the foreseeable future, do you recognise that Mr Crew would have accepted that?‑‑‑Do I think Martin would have accepted it?
PN321
Yes?‑‑‑I don't think so.
PN322
Because the line I refer to is annexure C because you've provided a copy of annexure C. I haven't got the day roster. I'm not sure - I have actually, it's annexure D. So annexure C, so you're saying at that meeting annexure C was the roster that you had provided at the previous two meetings and now this meeting, will have ready to go at this meeting?‑‑‑Yes, that's a different one.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN323
So that's the rotating one we've been talking about on the first and second, and now the third meeting. Annexure D is the one that you allege you had ready to go at that meeting for the first time on 24 July, the final meeting?‑‑‑Yes.
PN324
You're saying that the club would have been able to maintain those shifts moving forward, no changes whatsoever, locked in?‑‑‑Yes, I just would have worked the other supervisors around that roster.
PN325
Why didn't that happen? Because post this discussion, there's a lot of correspondence saying that - from the general manager, Mr Turner saying that the club could never commit to a set pattern of work of day shifts for Mr Crew. Would you agree with that?‑‑‑We were trying to do a roster so that it didn't upset the other supervisors as well, and then after the third meeting, when it was at the fact that Martin needed or wanted three day shifts, that was the roster that I prepared to try and fit it around.
PN326
Did you create these three shifts, because I've checked other rosters and I understand that these three shifts aren't on any previous rosters?‑‑‑No, I'd just have to swap around with my own rosters as well, so I would have started later instead the usual times that I start. So I had to move myself around as well as other.
PN327
What I'm saying is that I haven't seen on the previous rosters submitted that these shifts ever existed?‑‑‑No, we had to facilitate them for Martin.
PN328
You created these shifts for Martin?‑‑‑Yes.
PN329
Did you reconfirm this at any point from that meeting onwards?‑‑‑Sorry?
PN330
Did you reconfirm that you had created this shifts from 24 July, that meeting. Did you ever make that statement to Mr Crew? Did you ever tell him at the meeting, we've got three days shifts, 10 till 6, Thursday, Friday, Saturday, can you do them?‑‑‑No.
PN331
After that meeting, did you ever propose that to Mr Crew?‑‑‑No.
PN332
Why not?‑‑‑I didn't speak to Martin.
PN333
Or through the correspondence between the parties?‑‑‑Yes, that was given to our representative that roster.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN334
And you're saying you were able to lock these shifts in forever and a day?‑‑‑Yes.
PN335
The correspondence that we received states different to that. It states that it needed to be rotating day shifts, so it wouldn't always necessarily be those three shifts on a continuous basis.
PN336
THE DEPUTY PRESIDENT: Did you say that roster had Saturday?
PN337
MR DUSEVIC: Yes.
PN338
THE DEPUTY PRESIDENT: Didn't Mr Crew say that he couldn't work Saturday?
PN339
MR DUSEVIC: Thursday, Friday and Saturday. There were locked in, different story, your Honour.
PN340
THE DEPUTY PRESIDENT: I'm sorry?
PN341
MR DUSEVIC: Possibly could have made arrangements for Saturday. It was never put to him, at all. Nor, has it ever been put that they'd be able to lock in three day shifts. We're hearing different stories now. One that we had to have a rotating roster for day shifts and another we've had a locked in roster moving forward that would not have changed. Change is a whole ballgame.
PN342
THE DEPUTY PRESIDENT: Why would the club have put it to him when Mr Turner was of the firm view that he would not work Saturdays.
PN343
MR DUSEVIC: It wasn't ever raised further than this. I don't think that the club ever intended to maintain these shifts as Mr Webster is saying. I don't think that was going to be the case. All correspondence points otherwise as per my friend's submissions that he's quite clearly confirmed that through his submission only approximately half an hour ago. Trying to get it all together your Honour and make sense of what's happening.
PN344
Point 7, a very important point. You're saying "After Martin's termination and the initial conference before Fair Work and after speaking with Club New South Wales, we gave Mr Crew the option of working three day shifts per week on a rotating roster".
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN345
On the 24th, you're stating that you had this roster ready to go, these created shifts to issue to Mr Crew who did not want to look at them. But then you're saying it wasn't until after his separation of employment, after we had a mention with the Commission that you gave the option of Mr Crew working three day shifts. Is that correct? Just trying to draw the parallel?‑‑‑Yes.
PN346
You're saying you offered it on 24th which we have to take your word for. I don't know when you prepared that roster of day shifts, nor did you communicate that on the 24th that he could work day shifts. Then you're further stating that you never had day shifts in accordance with point 7, that you never had provided or issued day shifts to Mr Crew until after the mention with the Commission and speaking with Club New South Wales. Is that correct?‑‑‑The roster C is a different roster to roster D.
PN347
Roster D was a rotating roster, is that correct?‑‑‑Roster D was the three days, the Thursday, Friday, Saturday.
PN348
So roster D was the roster post discussions with the Commission. Those three day shifts - what you're saying is annexure D, those three day shifts weren't actually offered or prepared for 24 July? The only roster that you issued on 24 July was rotating night shift roster?‑‑‑Yes it was.
PN349
On 24 July there was no day shift roster prepared for Mr Crew?‑‑‑No, it was a rotation.
PN350
It was a rotation. The first meeting 26 July, 3 July and 24 July you had ready to go for Mr Crew the same roster on each and every occasion, from the start?‑‑‑Yes.
PN351
Never had a roster at those three meetings, of a combination, and day shifts or just day shifts?‑‑‑No, they were rotating.
PN352
Rotating, so all rotating?‑‑‑Yes.
PN353
You were aware that Mr Crew could not work nights, correct?‑‑‑Correct.
PN354
Did you make any attempts during any of those - given, I guess, that month period to accommodate Mr Crew's need for only work days, or was that something that you couldn't do at that point in time?‑‑‑I changed to roster D after we had - - -
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN355
After the mention with the Commission?‑‑‑Yes.
PN356
And further advice from Club New South Wales?
PN357
THE DEPUTY PRESIDENT: Well, I'm a little confused Mr Dusevic. Annexure D is two pages.
PN358
MR DUSEVIC: Yes.
PN359
THE DEPUTY PRESIDENT: The first page has him on roster Thursday, Friday, Saturday which you've been asking questions about, yes?
PN360
MR DUSEVIC: Yes.
PN361
THE DEPUTY PRESIDENT: But the second page has him working on Wednesday, Saturday and a Tuesday.
PN362
MR DUSEVIC: Yes.
PN363
THE DEPUTY PRESIDENT: How is this fixed day?
PN364
MR DUSEVIC: They're not fixed days.
PN365
THE DEPUTY PRESIDENT: I thought you were trying to establish that at some point a roster had been prepared that was never put to him which had fixed days.
PN366
MR DUSEVIC: That's correct, because this is only for the next two weeks. It would not have continued on in that pattern. That was after the discussions at the workplace, your Honour.
PN367
THE DEPUTY PRESIDENT: But this happened to have him on three - I'm not following what you're putting, what you seem to establish. Is annexure D a rotating roster or is it a fixed roster? Well, perhaps the witness can answer that?
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN368
MR DUSEVIC: It's a day rotating roster. Let me clarify the two. When I say rotating roster with other supervisors in a combination of days and nights, means rotating with other supervisors days and night shifts. The second definition of rotating roster is the day rotating roster, being Annexure D.
PN369
THE DEPUTY PRESIDENT: In the end, that's not what was required for Mr Crew, it was fixed days.
PN370
MR DUSEVIC: That's right.
PN371
THE DEPUTY PRESIDENT: None of these rosters are fixed days?
PN372
MR DUSEVIC: That's correct.
PN373
THE DEPUTY PRESIDENT: I thought you were trying to put that a roster had been prepared which had fixed days.
PN374
MR DUSEVIC: That's what I was told originally, that those three day shifts were offered to him on 24 July when they actually weren't. They were offered after the separation of employment and still not being fixed days. I've got two points that I need to make with this, which are very important, your Honour.
PN375
You realise that Mr Crew could not work night shifts, correct? You recognise that he is a carer for your wife?‑‑‑Correct.
PN376
You realise that his wife needs full time care, is that correct?‑‑‑Yes.
PN377
On 26 June, 24 July, and at no time at any of those meetings did you offer a set roster of day shifts?‑‑‑No.
PN378
Operations needed Mr Crew to work night shifts and a rotating combination of night shifts?‑‑‑Yes a rotating roster, yes.
PN379
Annexure D which I'm referring to now, so that's in relation to your point 7, those day shifts were rotating day shifts were never offered to Mr Crew until after you've had a mention before the Commission and discussions with your representatives?‑‑‑That's correct.
PN380
Do you recognise Mr Crew's need to maintain set shifts due to his carer's responsibilities?‑‑‑Yes I can understand that.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN381
Do you think it's a relevant factor in this matter that he needs to maintain set patterns of work to ensure his wife is appropriately accommodated?‑‑‑yes.
PN382
Do you think it's unreasonable for him to seek set shifts or set rosters?‑‑‑No, that way he knows, for his wife, yes.
PN383
Do you think it's unfortunate that he could not meet the club's rostering requirements because of his wife and her needs?‑‑‑Do I think it's unfortunate?
PN384
Yes?‑‑‑Yes.
PN385
Do you think there's any other way for Mr Crew to accommodate a rotating roster of the club's needs and continue his duties and his carer's responsibilities to his wife? Do you think there's a way that both of those options can coexist at all?‑‑‑If he was after the same day shifts set that he had before, I'd just have to work the roster around it to fit that in.
PN386
But you never offered that to him?‑‑‑Only after.
PN387
Those rosters that we're referring to annexure D after a mediation with the Commission, after further discussions with your representative, why did you get that opinion that you needed to get day shifts at that point in time, or a roster of day shifts at that point in time for Mr Crew?‑‑‑Because that's what he'd asked for.
PN388
But he asked for that three previous meetings. Why didn't it take place the first three previous meetings?‑‑‑At the time, we were just trying to fit him back into the roster that we had for the Foster club without causing too much disruption to the other supervisors.
PN389
After those three meetings, after speaking with the Commission, after speaking to your representative, what clicked, what changed the roster set from combination of days and nights to we need to look at trying to find him days shifts and day shifts only?‑‑‑After the talks had taken place, that was what was asked for.
PN390
THE DEPUTY PRESIDENT: Mr Dusevic, the rotating day shifts was rejected.
PN391
MR DUSEVIC: Yes.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN392
THE DEPUTY PRESIDENT: There's correspondence which shows that it was rejected.
PN393
MR DUSEVIC: Correct.
PN394
THE DEPUTY PRESIDENT: I don't quite understand what you're trying to prove with this reference to annexure D. It's a rotating shift.
PN395
MR DUSEVIC: Well his options weren't supported in the previous three meetings. I mean Mr Crew clearly - - -
PN396
THE DEPUTY PRESIDENT: That's right. Things were offered and changed. Wouldn't you have been in a much stronger position if the club said no from the outset. We're not interested in hearing any of your propositions. You would have been rightly critical of them for doing that. Then when they change their position, you're being critical and go back to what they offered originally as being a basis for arguing that they were unreasonable. It comes back to what I said before, it's what the final position was.
PN397
MR DUSEVIC: Your Honour, I do recognise that, yet it's very difficult, after a separation has happened to construct things to fit the criteria and that's where we're headed with this. Honestly, your Honour - - -
PN398
THE DEPUTY PRESIDENT: Mr Ducevic, we were still talking. When I say we, involving the Commission there was still talks going on about arrangements that might be made and I think the club had even said at some point, that they would be quite happy to have him back if he could be accommodated in the way that had been suggested.
PN399
MR DUSEVIC: I'll get to that your Honour, very shortly.
PN400
THE DEPUTY PRESIDENT: You're answer was, unless we have fixed days of the week, that were not night shifts, that were not weekend shifts, and specific days were excluded, we're not interested. We want redundancy pay. That's your position, isn't it?
PN401
MR DUSEVIC: I think I'm getting some clarity through the witnesses regarding these concerns and Mr Webster has agreed that Mr Crew - - -
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN402
THE DEPUTY PRESIDENT: I'm asking you; I'm not asking the witness. I'm tracing the history at the moment.
PN403
MR DUSEVIC: So am I and I'm getting to the final stages quick enough.
PN404
THE DEPUTY PRESIDENT: You seem to be inferring criticism that these offers were not made at the outset. Well, of course they weren't.
PN405
MR DUSEVIC: Well I'm hearing two different stories. They were and now they're not.
PN406
THE DEPUTY PRESIDENT: You go as to what the last position was and it's what I just described to you. It's in correspondence, it's in the evidence.
PN407
MR DUSEVIC: We were talking about genuine redundancy. I need to find out and work out and establish the genuineness of this matter as well, and I'm getting there.
PN408
THE DEPUTY PRESIDENT: This isn't a genuine redundancy case. This isn't an unfair dismissal case.
PN409
MR DUSEVIC: It's not that but in terms of being genuine, of having genuine discussions. I think it's important, especially when the applicant submits that the respondent failed to appropriately address and engage in conversations prior to the termination, when we're establishing that's not the case, that he did engage in conversations. The respondent was and still is fully aware of his wife's condition, the restrictions placed on him and whether these are relevant factors, your Honour. I think they all assist, but you are right.
PN410
THE DEPUTY PRESIDENT: I must say, I'm having difficulty to reconcile a refusal to accept the initial propositions because it would cause resentment; this was said by Mr Crew, cause resentment amongst the other supervisors. But the last solution to the problem that was advanced by you, was not only what was the initial one, but more than that, he was to have fixed days. So wouldn't that still have caused resentment?
PN411
MR DUSEVIC: Definitely.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN412
THE DEPUTY PRESIDENT: So, on the one hand, he rejects the proposition because it might cause resentment, but you advance that as a proposition to resolve the dispute.
PN413
MR DUSEVIC: That was only one thing that was discussed in terms of concerns around it, it wasn't all the factors, your Honour.
PN414
THE DEPUTY PRESIDENT: No, I appreciate it wasn't all the factors, but at the initial stages, it most certainly was, because that's the conversations that were recorded.
PN415
MR DUSEVIC: Definitely, and agreed by both parties too, might I add. Definitely, definitely.
PN416
THE DEPUTY PRESIDENT: All right, proceed.
PN417
MR DUSEVIC: Thank you. Point 7, just getting to that point. So we've talked about the option of working three days shift per week on a rotating roster. You then state "After the second conference we gave Mr Crew the option of having Mondays and Wednesdays off to see the doctor for his wife and also only working three day shifts per week on a rotating roster". Annexure E "Both of these offers were refused."
PN418
In relation to that paragraph allowing Mr Crew to have Mondays and Wednesdays off, you state that he was required to work three day shifts per week on a rotating roster. How far in advance are the rosters?‑‑‑Three to four weeks in advance.
PN419
Sometimes two, one, just depending the ability to get them done, or was it always three weeks?‑‑‑Not always exactly three weeks. When I have a chance to get them done, sometimes they'll be two weeks.
PN420
Do you think it was unreasonable for Mr Crew to ask for advanced rosters more than three weeks, so that he could commit to shifts moving forward at the club and the set shifts? Do you think it's unreasonable to offer? Is that something you could have done?‑‑‑Yes, it's something I could.
PN421
You're saying you were able to lock in shifts for Mr Crew for say a six week period, so that he could ensure that his wife had the appropriate care, attend appointments and do whatever else was necessary?‑‑‑Could I do that?
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN422
MR DUSEVIC: Yes?‑‑‑yes.
PN423
Did you do that?‑‑‑I haven't done rosters six weeks in advance, no.
PN424
However, had you produced rosters six weeks in advance, there was no guarantee that you would have locked set shifts in per week for Mr Crew?‑‑‑I would have to. If he wanted the day shifts I would have to lock them in and then work around that.
PN425
So you could have done it. You could have locked in his shifts moving forward for months in advance that he'd been working regular set day shifts moving forward?‑‑‑Yes.
PN426
Yet, however you didn't do that because there was a concern about other supervisors, and their resentment to Mr Crew, the way that he would be observed and possibly the relationship between staff. Is that correct? So it was the only reason why you didn't lock in shifts moving forward, because of other staff?‑‑‑No, I said we could have locked them in after the talks, and when I did those rosters, which was appendix D, I would have locked those shifts in and worked around that.
PN427
But the correspondence to us was that they weren't going to be locked in and it would have been on a rotating basis of day shifts. Do you recognise that?‑‑‑I'm not sure what you mean.
PN428
The correspondence to us was that - well you've put in your statement that point 7 "After the second conference we gave Mr Crew the option of having Mondays and Wednesdays off to see the doctor for his wife and also only working three shifts per week on a rotating roster"?‑‑‑Yes.
PN429
And that rotating roster would have been rotating of day shifts, correct?‑‑‑Correct.
PN430
Not days and nights?‑‑‑No.
PN431
However, you could have locked in shifts well in advance, so Mr Crew knew well in advance when he was working. Is that correct?‑‑‑Yes.
PN432
Would that have created any other operational issues?‑‑‑I just would have had to work my other supervisors around those shifts.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN433
So it could have been done. You could have locked in shifts and it would have been smooth sailing moving forward?‑‑‑Yes, I just have had to work everyone else around.
PN434
However you didn't because of the resentment from other supervisors and the concerns and matters raised with other staff. That's why you never locked in shifts for Mr Crew?‑‑‑No, we didn't do it because it wasn't asked for.
PN435
You mustn't have seen our correspondence to the club. The last piece of our correspondence asking - or confirming that Mr Crew would return to work if he had set shifts. Day shifts moving forward. You never saw that correspondence?‑‑‑Yes, I did see that correspondence.
PN436
You did see that correspondence?‑‑‑Isn't that what you were just asking me about?
PN437
Yes. You said that you - it was never requested before regarding set rosters?‑‑‑No, but I mean before that correspondence. It hadn't been asked for before that, no.
PN438
When it was asked for it's something you could have committed to?‑‑‑Yes, in - in the rosters, yes.
PN439
But you didn't. You weren't instructed to commit to set rosters moving forward to accommodate Mr Crew?‑‑‑No, because - no, I hadn't. No.
PN440
Who instructs you? Who makes the decisions? Is it Mr Turner that makes the final decisions as to rostering or is it yourself? Do you mainly look after the rosters?‑‑‑I do the rosters.
PN441
And you work out operational requirements and meet staffing levels around the club?‑‑‑Correct, yes.
PN442
Do you think had you locked in set day shifts for Mr Crew at the Forster site that he would have worked them?‑‑‑I don't think Martin would have come and worked at the Forster site, no.
PN443
Even though asked for that? Even though he asked to have three set shifts moving forward with day shifts?‑‑‑Yes.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN444
So he asked for that, but you still think that he would have - - -?‑‑‑Yes. I don't think Martin would have.
PN445
And it was never offered to him, three set day shifts moving forward?‑‑‑Yes, it was after we had spoken.
PN446
Look, I'm not following mainly because we've never had any arrangement. Our final correspondence to yourself - to the club was if the club were able to commit to set day shifts - - -?‑‑‑Yes.
PN447
- - - moving forward for Mr Crew, that he would return to work?‑‑‑Yes.
PN448
Did this happen?‑‑‑No.
PN449
But it could have?‑‑‑It could have.
PN450
The club could have accommodated?‑‑‑Yes.
PN451
Just point 6 of your final audition statements dated 30 October 2015. Point 6, you state - I just need clarity on this. You state:
PN452
With Mr Crew's wife's medical condition, all that Mr Crew told me was that his wife had doctors' appointments and at no stage was I made aware that they were on a weekly or regular basis.
PN453
?‑‑‑No.
PN454
Did you ever ask him? Did you ever have any discussions about it? At any of the meetings did you have these discussions? Did you propose to him, "What are you doing on these days?"?‑‑‑No.
PN455
"Why do you need set day shifts?"?‑‑‑No, we just went with the days that he had asked.
PN456
Has Martin been honest with you through his employment and forthcoming with information?‑‑‑I think so, yes.
*** KEVIN BENJAMIN WEBSTER XXN MR DUSEVIC
PN457
So if you had have asked the question, it would have - you would have had no concerns about his honesty with his arrangements with his wife?‑‑‑No.
No further questions, Your Honour.
RE-EXAMINATION BY MR USHAKOFF [12.04 PM]
PN459
Mr Webster, I just want to ask you - throughout this process various offers have been made of continuing employment. Why were you unable to accommodate Martin's request for set day shifts that wouldn't change? Why was the club unable to accommodate that?‑‑‑Initially because we were just trying to fit it in without having to change the other supervisor's rotating roster.
PN460
What problems would it cause the club to have a set roster where the days don't change? What problems does that cause?‑‑‑I'm restricted for flexibility. So if someone rings in sick or annual leave or - and if I need other shifts covered, it makes it harder to cover those shifts.
PN461
Nothing further, Your Honour.
THE DEPUTY PRESIDENT: Thank you. You may step down. You are released from your oath, Mr Webster.
<THE WITNESS WITHDREW [12.05 PM]
PN463
THE DEPUTY PRESIDENT: Does that complete your evidentiary case, Mr Ushakoff?
PN464
MR USHAKOFF: Yes, Your Honour.
PN465
THE DEPUTY PRESIDENT: All right.
MR DUSEVIC: Thank you, Your Honour. May I call Mr Crew, the respondent, to the Bench?
*** KEVIN BENJAMIN WEBSTER RXN MR USHAKOFF
*** MARTIN JOHN CREW XN MR DUSEVIC
<MARTIN JOHN CREW, SWORN [12.06 PM]
EXAMINATION-IN-CHIEF BY MR DUSEVIC [12.06 PM]
PN467
Mr Crew, may I request you to state your full name and residential address for the request?‑‑‑Yes, my full name is Martin John Crew and I reside at (address supplied).
PN468
I have before me a statement by yourself dated 23 October 2015. Do you have copy of this statement?‑‑‑Yes.
PN469
Can I confirm this statement was prepared by you and signed by you?‑‑‑Yes.
PN470
THE DEPUTY PRESIDENT: Do you tender the statement?
PN471
MR DUSEVIC: Yes, Your Honour.
PN472
THE DEPUTY PRESIDENT: Any objection?
MR USHAKOFF: NO objection.
EXHIBIT #A WITNESS STATEMENT OF MARTIN CREW DATED 23/10/2015
CROSS-EXAMINATION BY MR USHAKOFF [12.07 PM]
PN474
Mr Crew, you became a part time supervisor at the Forster Tuncurry Golf Club in September 2008. That's correct, isn't it?‑‑‑Yes.
PN475
That was prior to 31 December 2014?‑‑‑Yes.
PN476
Mr Crew, the club met with you on three separate occasions to discuss the closing down of the Tuncurry bar and the requirement for you to work at the Forster site as a bar supervisor with a new roster. That's correct, isn't it?‑‑‑Yes.
PN477
At those meetings you and your representative were provided with an opportunity to give your views about those proposed changes, weren't you?‑‑‑Yes.
PN478
You maintained in those meetings that you needed to be provided with a fixed roster of day time shifts. That's correct, isn't it?‑‑‑Yes.
*** MARTIN JOHN CREW XXN MR USHAKOFF
PN479
You acknowledged that it would be difficult for the club to accommodate such a request at the final meeting on 24 July, didn't you?‑‑‑Because of the reasons I gave, yes.
PN480
The club did ask you whether you would accept day shifts if they were offered to you. That's correct, isn't it?‑‑‑I was asked, "What if? What if we could do that? Would you consider it?" that's when I gave my reasons as to why I couldn't because I didn't think it would - why I didn't think it would work, which was agreed to by Mr Turner.
PN481
During the aforementioned meetings you refused to view any proposed roster presented by the club regarding your hours of work at the Forster site. That's correct, isn't it?‑‑‑Yes.
PN482
You didn't view those rosters?‑‑‑No, I did not.
PN483
Following the termination of your employment with the club the club made several offers of continued employment to you. That's correct, isn't it?‑‑‑At various times, yes.
PN484
These offers involved working day shifts with Mondays and Wednesdays off as requested by you. That's correct?‑‑‑Yes.
PN485
But you refused those offers. That's correct, isn't it?‑‑‑Because they weren't - it wasn't committed to a set roster.
PN486
I would like to draw Mr Crew's attention to a provision of the modern award, if I may. That's tendered in our evidence, Your Honour. If that's possible, clause 8.2 of the award. It's an annexure in our statement. It is referenced in our submissions, Your Honour. May I tender those submissions to the respondent for him to view and read?
PN487
THE DEPUTY PRESIDENT: Yes. I will mark them later.
PN488
MR USHAKOFF: Mr Crew, you have before you clause 8.2 of the Registered and Licensed Clubs Award. That's in paragraph 4.4 of the club's submissions?‑‑‑Yes.
*** MARTIN JOHN CREW XXN MR USHAKOFF
PN489
I would like to ask you did the employer - I would like to draw your attention to 8.2(b) and ask you the question did the employer provide to you information about the proposed change that they were going to make to your hours of work and your location of work?‑‑‑Yes.
PN490
Did they invite you and your representative to give your views about that change?‑‑‑Yes.
PN491
Did the club give consideration to your views about the impact of that proposed change?‑‑‑I can't answer that. I don't know how they - they - we gave - we gave our reasons, so they would have considered it, I would assume.
PN492
Do you believe that the club - in exploring options of day shifts with you, do you believe that they were considering your views in relation to the change, that these changes would have upon you? The impact that these changes would have upon you?‑‑‑That they proposed after the three meetings are you talking about?
PN493
Yes?‑‑‑After those?
PN494
After those?‑‑‑Because of the information that was provided at those three meetings no, I don't. I don't consider they were considered, no.
PN495
You don't believe they considered your views at all?‑‑‑I believe they considered them, but I believe that because of their responses at the three meetings that - no.
PN496
So you believe they considered them?‑‑‑I believe they looked at them, yes. Of course they would have looked at them.
PN497
They considered them, but they didn't accept your request?‑‑‑No.
PN498
But they considered them?‑‑‑Well, I don't know what they would have said. I don't know, I'm not privy to that.
PN499
You have been required to work outside of your regular pattern of set shifts from time to time. That's correct, isn't it?‑‑‑Very sporadically, yes.
PN500
So you've worked weekends?‑‑‑Only a Saturday.
PN501
Only a Saturday at both the Forster and the Tuncurry site?‑‑‑Since my change of roster?
*** MARTIN JOHN CREW XXN MR USHAKOFF
PN502
Yes, since your change of roster and before?‑‑‑Since my change of roster I've only worked - I haven't worked at the Forster site.
PN503
But you've worked Saturdays?‑‑‑I've worked a Saturday at Tuncurry.
PN504
At Tuncurry?‑‑‑Only at Tuncurry. Not at Forster.
PN505
Prior to August 2013 you worked at the Forster site on occasions?‑‑‑Yes.
PN506
On weekends?‑‑‑Only on a Saturday.
PN507
When required?‑‑‑Only on a Saturday.
PN508
Nothing further, Your Honour.
PN509
THE DEPUTY PRESIDENT: Mr Crew, I am very, very sorry for the circumstances you are in with your wife and I don't want to upset you necessarily about asking questions about her condition, but at paragraph 17 you say that:
PN510
On Mondays and Wednesdays I'm required to take my wife to appointments.
PN511
There is four doctors identified there. Is that every week?‑‑‑No, your Honour, no.
PN512
I see?‑‑‑It's an ongoing thing and has been since her stroke and since she came home from rehab at Wingham. There were a lot of other appointments that we had over a long period of time with speech therapists, occupational therapists, optometrists. My wife's vision is affected. She has lost 30 per cent of her brain. She has got no right peripheral and so she can't - things like that. We've had to go to - I can't remember the name of the doctor, we had meetings with regarding her medications and - - -
PN513
Are these regular - - -?‑‑‑These have been ongoing for various things.
PN514
I see?‑‑‑The only one that has changed there now is Dr Newman. He has retired in the end of October. And we will be seeing another specialist from Taree.
*** MARTIN JOHN CREW XXN MR USHAKOFF
All right. Thank you. Yes. Anything in reply?
RE-EXAMINATION BY MR DUSEVIC [12.16 PM]
PN516
MR DUSEVIC: Yes, your Honour. When you worked at the Forster site on sporadic Saturdays, did you - - -?‑‑‑That was prior to my wife having the stroke.
PN517
Prior to?‑‑‑Prior to.
PN518
Okay?‑‑‑I didn't work at Forster site after my wife had the stroke, to the best of my recollection.
PN519
And the Tuncurry site, have you ever worked on a Saturday?‑‑‑Sporadically, yes.
PN520
Yes. And with that, did you - were you provided advance notice that you needed to work?‑‑‑Yes. Yes. I was asked - - -
PN521
MR USHAKOFF: Your Honour, these are leading questions.
PN522
MR DUSEVIC: Were you provided - it's a question - - -
PN523
MR USHAKOFF: "Were you" - I believe that they need be restricted to what, where, when, how, why, not were.
PN524
MR DUSEVIC: I can change it around then. Did the club provide you with notice?‑‑‑Yes.
PN525
In relation to clause 8.2 of the award that my friend referred to regarding the consultation process - I've got a copy here but if you could open yours and read it for me. I think it has got something regarding - 8.2(b)(ii) that is. Could you read that for me?‑‑‑
PN526
Invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change, including any impact in relation to their family or caring responsibilities.
*** MARTIN JOHN CREW RXN MR DUSEVIC
PN527
Do you believe the club took relevant considerations around your family needs on making the decisions they made?‑‑‑Initially, no. The three meetings, I don't believe they had.
PN528
My friend asked you a question as to why you did not view the rosters during the meeting. Is there any particular reason why?‑‑‑Yes.
PN529
Can you please explain?‑‑‑On the very first meeting on the 26th, I think it was, when I was informed of the changes that were going to take place, Mr Turner outlined, as I have put in my statement there that - what was going to happen, and that I could work back over at the Forster site. But, as I put there, "We would not be able to guarantee you a day shift. You will have to work some nights." That was straight up at the meeting.
PN530
And so did you consider it relevant to review the roster based on that discussion?‑‑‑On that first occasion there was no rosters offered to me or mentioned about looking at rosters on that first meeting.
PN531
In terms of the club's final proposal to you in relation to working rotating day shifts, can you explain why you cannot commit to a rotating roster of day shifts?‑‑‑First and foremost, I don't believe that it was a genuine roster because of the number of staff on that. It showed the working day work. That just never happened at the club. Financially it didn't happen. It was mainly - if you look at the rosters, there was only one person on day work most of the times until 11 o'clock or something like that. So that came into it. Also the fact that I had to commit to - so I could look after my wife. I had people coming around on the days that I worked, the three days. And then on weekends, if I had to work weekends, it would have involved the whole thing having to get someone else to come and be with her in that - as she is restricted. She cannot drive a motor car. She cannot prepare meals, herself, etcetera, etcetera. And I would have had to have left her possibly for seven or eight hours or something, on her own, and I was not prepared to do that for her safety.
PN532
Thank you. No further questions.
THE DEPUTY PRESIDENT: Thank you. Mr Crew, you may step down. You are released from your oath.
<THE WITNESS WITHDREW [12.20 PM]
PN534
THE DEPUTY PRESIDENT: Well, I note is there any - is that your evidentiary case, Mr Dusevic?
*** MARTIN JOHN CREW RXN MR DUSEVIC
PN535
MR DUSEVIC: Yes, your Honour.
PN536
THE DEPUTY PRESIDENT: Yes. Well, I note that both parties have provided written submissions. Do you want to proceed to address those submissions or are you content to rely on them? Alternatively, do you need a bit of time to consider what the evidence that has flowed, and resume after lunch?
PN537
MR USHAKOFF: Your Honour, I'm prepared to put closing submissions now on behalf of the applicant club, and my friend has told me that that can finalise the matter - finalise the proceedings.
PN538
THE DEPUTY PRESIDENT: Well, can it all be done in short order?
PN539
MR USHAKOFF: It can be, yes.
PN540
THE DEPUTY PRESIDENT: In short order?
PN541
MR USHAKOFF: In short order, your Honour, yes.
THE DEPUTY PRESIDENT: All right. Proceed. I will mark your outline of submissions US1, and your supplementary additional submissions US2.
EXHIBIT #US1 OUTLINE OF APPLICANT'S SUBMISSIONS
EXHIBIT #US2 OUTLINE OF APPLICANT'S SUPPLEMENTARY SUBMISSIONS
PN543
MR USHAKOFF: Thank you, your Honour. Your Honour, sorry for the delay. I have just been handed the sixth case that I will tender to the bench and to my friend here. That was missing from the cases which were presented today. Your Honour, today the union has consistently argued that because the offers of other employment made to Mr Crew involved changes to his hours of work to a rotating roster, that these offers made to him by the club cannot be seen to be acceptable.
PN544
However, this argument involves the false assumption that Mr Crew's hours of work were fixed and were unable to be changed without mutual consent. The award makes it clear that this is not the case and that a part-time employee's hours can be change at any time so long as the correct process is followed. Even if a part-time employee is working fixed hours or a regular roster, these can be changed by the hours of work and rostering provisions of the award, with appropriate notice and following consultation.
PN545
These provisions also apply to employees who have caring responsibilities, as clause 8.2 of the award makes clear. All offers of employment made by the club to Mr Crew have been on the basis of him continuing his employment as a part-time bar supervisor, which was Mr Crew's position at the Tuncurry site. All of these offers have been on the basis of Mr Crew working the same number of hours or more, so that he would not lose any take-home pay, and perhaps indeed earn more as a result of weekend work.
PN546
The only difference between Mr Crew's employment at the Tuncurry site and the Forster site is the location which, as has been discussed, was not an issue in these proceedings. I just want to touch briefly on the consultation obligation. The club has fully consulted with Mr Crew in relation to all these offers of other employment and in relation to changing his hours of work in accordance with the award. The club met with Mr Crew on three separate occasions and also with his representative on 24 July 2015.
PN547
In these meetings they discussed the proposed changes to the hours and gave Mr Crew and his representative an opportunity to put their views regarding the proposed change to his hours, which they did. The club considered these views but were unable to accommodate all of these views due to the operational issues that this would create at the Forster site, as acknowledged by Mr Crew himself in the meeting of 24 July 2015.
PN548
Notwithstanding this, the club did attempt to provide Mr Crew with daytime shifts, and Mondays and Wednesdays off as requested, following the termination of his employment, but this was not acceptable to Mr Crew. The union is arguing that because Mr Crew's hours were to change in accordance with the terms and conditions of his existing employment that he is entitled to redundancy pay.
PN549
We submit that this would be unsustainable. It would mean that any change to an employee's hours of work as permitted by a relevant modern award, would result in the award potentially of severance pay to an employee, making the hours of work provisions and the consultation provisions of the award of no practical effect. Not only would an award of severance pay make rostering employees near impossible, it would also dissuade employers from accommodating changes to employees hours of work due to difficult life circumstances.
PN550
To finish, I would just again perhaps labour the point that Mr Crew's previous role at the Tuncurry site was as a part-time bar supervisor and that his hours there could have been changed by the club and, in fact, in some circumstances were changed by the club in accordance with the modern award following consultation, notwithstanding his carer's responsibilities.
PN551
The position that he was offered at the Forster site was as a bar supervisor, again, whereby his hours could be changed in accordance with the modern award following consultation. And we would submit that this is in fact the identical position. Notwithstanding that the club did, as I have already mentioned, attempt to make accommodations for Mr Crew. And as a result, we would submit that all offers of employment constitute other acceptable employment as contemplated by section 120 of the Act, your Honour.
PN552
THE DEPUTY PRESIDENT: Thank you.
PN553
MR DUSEVIC: Your Honour, in addition to our written outline of submissions - - -
THE DEPUTY PRESIDENT: Yes. I will mark your submissions D1.
EXHIBIT #D1 RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS
PN555
MR DUSEVIC: Submissions are D1. In addition to our written submissions, I would like to make - and draw a fair few points regarding what we consider to be other acceptable employment, and whether other acceptable employment needs to be suitable. We have heard my friend's submission on the basis that the last paragraph stating that all offers to Mr Crew were suitable or were acceptable other employment, we strongly refute that fact.
PN556
I have had Mr Turner, specifically, and Mr Webster, roster manager in the witness box today, confirm to me that he recognises and understands Mr Crew's need to maintain a set pattern of work. It has been recognised by the applicant's witnesses today, the respondent's ongoing need to support and provide care for his wife, and that these were both relevant factors for him to consider whether taking further employment with the club or continuing employment with the club would occur or not.
PN557
THE DEPUTY PRESIDENT: Well, it's a major factor but it's not the only factor.
PN558
MR DUSEVIC: Correct. And we - a major factor. Exactly. We refer to specifically two cases in our written submissions, of the Clendonian Proprietary Limited v Christine Favel, and UXC Connect v Mr Doug Moore. Those state - and in one particular - adding specific emphasis around - and I will get to that -
PN559
Acceptable is a clear indication that it is not any employment which complies but which meets the relevant standard. In our opinion there are obvious elements of such a standard, including the hours of work of a like nature, the location being not unreasonable distant, the pay arrangements complying with the award requirements, yet however there will probably be others.
PN560
Your Honour, we haven't engaged in dispute about the hours of work; we haven't engaged in dispute about the location of work. We are solely relying upon the unfortunate circumstances of Mr Crew, his responsibilities to his wife, provisions of the modern award, consultation provisions which specifically outline that an employer is required to consider the carer and family responsibilities in those consultations. And that these responsibilities have been quite clearly recognised.
PN561
Your Honour, the conditions of Mr Crew's employment changed in 2013, in August 2013, when his wife went into unfortunately this condition. The club agreed at that point in time that for Mr Crew to serve the club it best be formulated and agreed by the club - there was an offer and acceptance by the club - which formulated he was required and approved a set roster, set days.
PN562
This, we consider, to be a contractual arrangement between the parties, and that the club have accepted and recognised the constraints put around Mr Crew's current circumstances and continuing work or employment at the club. Your Honour - - -
PN563
THE DEPUTY PRESIDENT: But that would ignore the rights of the employer to alter the rostering arrangements.
PN564
MR DUSEVIC: Your Honour, but that's why the consultation provisions are quite clear. It's not about a check book here - ticking off the boxes that we've conducted ourselves in an appropriate manner, rather than taking genuine consideration around the obligations or carer's responsibilities and obligations and the family. And it's quite specific, which is why an employer can't just go and change a roster for anyone regardless. They need to engage in these consultation provisions.
PN565
And you can't just attend and tick the boxes without recognising. However, we do thank the applicant for recognising Mr Crew's current circumstances and we hope that - and based on both the submissions and statements and cross-examination, that they have agreed with our position and our view that Mr Crew's wife's condition, his commitment, his carer's responsibility, are relevant factors in this case. That concludes my submissions.
PN566
THE DEPUTY PRESIDENT: All right. Thank you.
PN567
MR DUSEVIC: Thank you.
PN568
THE DEPUTY PRESIDENT: Anything in reply?
PN569
MR USHAKOFF: No, your Honour.
PN570
THE DEPUTY PRESIDENT: Yes. All right. Well, I propose to reserve my decision in the matter. I thank both advocates for the efficient conduct of the proceedings, and I must say the material that was provided has been very well prepared. I wish I saw more of it. Whatever be the outcome, I wish the club well into the future. And I certainly, to you, Mr Crew, I hope your family circumstances improve for the better. I now adjourn.
ADJOURNED INDEFINITELY [12.32 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CHRISTOPHER MICHAEL TURNER, SWORN............................................. PN24
EXAMINATION-IN-CHIEF BY MR USHAKOFF........................................... PN24
EXHIBIT #1 WITNESS STATEMENT OF CHRISTOPHER MICHAEL TURNER DATED 09/10/2015................................................................................................................. PN30
EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF CHRISTOPHER MICHAEL TURNER DATED 30/10/2015............................................................................... PN36
CROSS-EXAMINATION BY MR DUSEVIC.................................................... PN38
RE-EXAMINATION BY MR USHAKOFF...................................................... PN248
THE WITNESS WITHDREW............................................................................ PN265
KEVIN BENJAMIN WEBSTER, SWORN....................................................... PN272
EXAMINATION-IN-CHIEF BY MR USHAKOFF......................................... PN272
EXHIBIT #3 WITNESS STATEMENT OF KEVIN WEBSTER DATED 09/10/2015 PN278
EXHIBIT #4 SECOND STATEMENT OF KEVIN WEBSTER DATED 30/10/2015 PN282
CROSS-EXAMINATION BY MR DUSEVIC.................................................. PN283
RE-EXAMINATION BY MR USHAKOFF...................................................... PN458
THE WITNESS WITHDREW............................................................................ PN462
MARTIN JOHN CREW, SWORN..................................................................... PN466
EXAMINATION-IN-CHIEF BY MR DUSEVIC............................................. PN466
EXHIBIT #A WITNESS STATEMENT OF MARTIN CREW DATED 23/10/2015 PN473
CROSS-EXAMINATION BY MR USHAKOFF.............................................. PN473
RE-EXAMINATION BY MR DUSEVIC.......................................................... PN515
THE WITNESS WITHDREW............................................................................ PN533
EXHIBIT #US1 OUTLINE OF APPLICANT'S SUBMISSIONS................... PN542
EXHIBIT #US2 OUTLINE OF APPLICANT'S SUPPLEMENTARY SUBMISSIONS PN542
EXHIBIT #D1 RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS PN554
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