C2015/7234, Transcript of Proceedings [2015] FWCTrans 734 (24 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052884

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VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
DEPUTY PRESIDENT BULL

C2015/7234

s.604 - Appeal of decisions

Senaratne v King & Wood Mallesons
(C2015/7234)

Melbourne

11.05 AM, THURSDAY, 17 DECEMBER 2015

PN1

VICE PRESIDENT CATANZARITI: Thank you. I will take the appearances.

PN2

MS T SENARATNE: Your Honours, I am Tara Senaratne. I appear for myself.

PN3

VICE PRESIDENT CATANZARITI: Thank you.

PN4

MR M KELLOCK: Your Honours, Murray Kellock, for King & Wood Mallesons, and with me is MS K BONNING.

PN5

VICE PRESIDENT CATANZARITI: Thank you, and in those circumstances you are representing the firm and you are the firm, there is no need, I think, for permission.

PN6

MR KELLOCK: Yes, sir.

PN7

VICE PRESIDENT CATANZARITI: This matter is listed, both for Commission to appeal and appeal. The Full Bench has had the benefit of reading the submissions. The purpose of this morning is really to see whether there is anything further to be done orally. So over to you.

PN8

MS SENARATNE: Thank you, your Honour. So obviously you have said you have had the benefit of reading my submissions. I think there are a few things that I would like to clarify. I note that in the respondent's submissions, which I have also had the benefit of reading earlier this week, they noted that pursuant to section 400 of the Act, the two limbs are really whether permission should be allowed for the appeal and whether there has been an error actually shouldn't be in the alternative and I concede that I have wrongly presented those as alternatives in my submission. So I would now like to proceed with obviously dealing with both together.

PN9

VICE PRESIDENT CATANZARITI: Yes, that is fine.

PN10

MS SENARATNE: Yes. I also, I guess, then would like to say a little bit about the part about error of fact and the fact that I think a lot turns on this letter of 31 July 2015.

PN11

VICE PRESIDENT CATANZARITI: We have before us, so that you are aware, we have got your initial letter of offer dated 22 December 2014 which says your employment will commence on Monday, 2 February 2015.

PN12

MS SENARATNE: Yes.

PN13

VICE PRESIDENT CATANZARITI: The Bench also has in front of it the termination letter of 31 July 2015.

PN14

MS SENARATNE: So I would just point out to the Bench that that letter wasn't signed. The 31 July letter wasn't signed by me. So it was pre-signed by my employer and at that time there was a lot of discussions around the nature of my employment and despite the original decision and, I guess, you know, what was said, this letter really I didn't take to mean notice of termination. And admittedly I was very nervous in the original decision and really just, I guess, conceded that it may have been and now having thought about it further and actually in light of what actually happened there were a lot of discussions around the nature of my employment around July.

PN15

And, in fact, there was a meeting before 31 July in which it was discussed that despite the fact that we are having this meeting, my notice of termination wasn't going to be finalised. In that meeting of 23 April, after the first three months of my probation, it was said that I would be put on a further three months. So in its entirety, it was always meant to be six months for the probationary period. So I just wanted to talk to that letter a little bit further and shed some light on it.

PN16

VICE PRESIDENT CATANZARITI: Are you seeking to try lead new evidence because there would have to be an application. Otherwise we are limited to the transcript before the Commission.

PN17

MS SENARATNE: What evidence would I then lead?

PN18

VICE PRESIDENT CATANZARITI: I am just asking you. The way you just framed that suggests you may want to be leading new evidence. Is there any new evidence you are wishing to seek to lead or are you relying on the transcript? We have read the transcript.

PN19

MS SENARATNE: I have read the transcript, but I guess any further evidence would only be recordings I have of the conversation that took place days before 31 July in regard to arrangements and subsequent emails after 31 July between Kathryn Bonning and myself where it was really, you know, we were talking about me working in the firm in another capacity even. So I don't know if the Commission has evidence of that. Perhaps they don't.

PN20

VICE PRESIDENT CATANZARITI: It wasn't before the Deputy President who heard the matter.

PN21

MS SENARATNE: Yes, yes.

PN22

VICE PRESIDENT CATANZARITI: I guess what I am focusing on is are you seeking to reopen the case or seeking the leave?

PN23

MS SENARATNE: If that is possible.

PN24

VICE PRESIDENT CATANZARITI: It may not be possible. But is that your application?

PN25

MS SENARATNE: Yes.

PN26

VICE PRESIDENT CATANZARITI: What do you say about that, Mr Kellock, before we consider it?

PN27

MR KELLOCK: We would object to that course, sir. The material before the Commission in terms of the application documentation and the transcript, the matters raised in that transcript make it quite clear that the applicant was given notice of termination on 31 July and that was her understanding. We don't see that it is going to be much utility or value in the applicant seeking to, at this point in time, seemingly introduce evidence which might contradict that.

PN28

VICE PRESIDENT CATANZARITI: Ms Senaratne, in the actual transcript of PN45 have you got the transcript with you?

PN29

MS SENARATNE: No, your Honour, I don't have it.

PN30

VICE PRESIDENT CATANZARITI: Let me just draw your attention to your own evidence. You say:

PN31

Yes, I mean, I think, notwithstanding, you know, as I said in my application that, you know, there was a lot of discussion about me continuing on in the firm in a different practice group. And so I understand, you know, this was the letter that was given to me that I and I know you just take into account that just the dates but there was a lot of confusion as to what was really going to happen in terms of my employment. You know, even the notice period itself was being debated by my supervisor and myself. You know, she was willing to give me an extra week and an extra week there. So it is just unfortunate. When it comes down to it, we were pinned to these dates because the entire process was just quite haphazard and I only knew maybe two days before this letter that this was going to happen. And then I didn't know if would last in the firm or even if I was still in the firm because they were going to place me in a different team which obviously didn't happen. So I guess I just wanted to, to clarify the whole process.

PN32

PN33

Et cetera. Do you recall you giving that evidence?

PN34

PN35

MS SENARATNE: Yes, your Honour.

PN36

VICE PRESIDENT CATANZARITI: Is that not the sort of evidence you are seeking to reopen?

PN37

MS SENARATNE: Yes, that is exactly right.

PN38

VICE PRESIDENT CATANZARITI: Yes, all right, at PN45. Ms Senaratne, we are not going to allow you to reopen the case. It was already traversed in the way I have just expressed in PN45 and it was taken into account by the Commissioner at first instance. So is there anything further you wish to say in relation to the appeal?

PN39

MS SENARATNE: Your Honour, I note that you have obviously read my submissions again and I don't know if is there anything further then I will have to say about the other limb of section 400 which is obviously in relation to the public interest. Except to remind you then of some of the considerations which include manifesting an injustice and I would just seek to reiterate that I feel as if those considerations are relevant in my case and further to my submissions I think that that is actually what occurred here.

PN40

I note that it is just one calendar day short of six months. The minimum employment period is obviously six months and I feel as if as, pursuant to my submissions, that I really feel as if the respondent did know and knows very well that the employment period minimum employment period is six months and sought to deliberately cut it short by one day. I note that also there is really no discretion in the Act, but pursuant to the grounds of public interest, that is basically the grounds for my case that it did amount to an injustice and I think it isn't just something that would affect me.

PN41

I think it would affect others that may have gone before and may go after me when you are up against a global law firm that knows exactly what they are doing. And the verbal arrangement was that I was to be given a six-month probationary period and every single discussion afterwards would have confirmed that. So it is just very unfortunate that the date of that letter was 31 July which is one calendar day short of the six months that is required.

PN42

VICE PRESIDENT CATANZARITI: Thank you.

PN43

VICE PRESIDENT WATSON: Ms Senaratne, you acknowledge in what you have just said that there is no discretion in the Act. Then how do you say that the decision under appeal was in error? How could the Commission member and how could any appeal alter the position which flows from the plain provisions of the Act?

PN44

MS SENARATNE: Yes, your Honour. My understanding is that section 400 is separate and distinct so that the consideration of public interest is separate to the six months.

PN45

VICE PRESIDENT WATSON: But you have to establish an arguable case of error on the part of the decision at first instance which is how could there be an error if the facts indicated a position less than six months?

PN46

MS SENARATNE: That was the preceding discussion, I take it, that the 31 July letter was in fact not the final arrangement. I understand now that that is not going to be reopened and the 31 July letter is taken by the Bench then to mean notice of dismissal when, in fact, that is not my argument, despite the transcript. So I suppose flowing from that, I would say that discretion should be allowed because there was an error and pursuant to the first limb of the test that it would be in the public interest to consider that.

PN47

DEPUTY PRESIDENT BULL: Ms Senaratne, what day do you say was the effective dismissal date?

PN48

MS SENARATNE: Your Honour, I haven't obviously tendered any further evidence in relation to the final dismissal date. But I am stating that I don't think it was 31 July and this was discussed in brief in the original decision of Deputy President Gooley and admittedly I wasn't able to properly speak to it and represent myself. But obviously I don't know if the Bench is willing to close the matter in regard to tendering new evidence in regard to a new notice of dismissal date. So I am not sure if it is now speculation, but I am just saying that 31 July was not the I didn't take it to mean the notice of dismissal.

PN49

DEPUTY PRESIDENT BULL: But why do you not raise that argument in the first instance?

PN50

MS SENARATNE: Your Honour - - -

PN51

VICE PRESIDENT CATANZARITI: Sorry, just before just to assist Commissioner Gooley on the transcript, she says that you argued that you were employed from 2 February to 11 September because you included the pay in lieu of notice. Isn't that what you put before the Deputy President?

PN52

MS SENARATNE: Yes, Your Honour.

PN53

VICE PRESIDENT CATANZARITI: So in answering the Deputy President's question, you are actually not answering the way you answered in transcript just now. So let's be consistent with the evidence before Deputy President Gooley.

PN54

MS SENARATNE: Yes, your Honour. I can't really explain the contradiction except to say that, you know, this entire time I have just tried to obviously I have presented my case in the best way I possibly can and on the evidence I have. And perhaps I did make an error during the original decision and in my evidence that was filed pursuant to that. But I can only then speak to the submissions that I have outlined to the Full Bench for this appeal and I don't really know if there is anything further I can say.

PN55

VICE PRESIDENT WATSON: Can I understand the way you are putting it in a little bit more detail? We have the letter of termination dated 31 July and it states that the employer has decided to terminate your employment effective 31 July. Your argument is that you didn't take it as termination with that date of effect. What is the legal basis for that submission; is it not when there is a termination at the instance of one party? Why is it not relevant to look only at what that party did in order to terminate the employment? Why is it relevant to look at how the other party may have understood that? What is the legal basis for that position?

PN56

MS SENARATNE: Your Honour, I think I understand the question. I suppose then I would look beyond the words on the page because, as you say, it is signed by the one party and what effect would it have if another party thought something different. Is that really the basis of your question? I think really it was because of the surrounding conversations that I was having with the respondent at the time. Even when I received this very letter, I was told that:

PN57

Tara, you know, perhaps don't even worry about this because, you know, we are trying to get you to work in a different area of the firm, that this is a formality only.

PN58

I mean, I was confused certainly at the time I was given this letter and I do have evidence which I would like to file with the Commission which would support this. So I guess on the face of it, it does say it is effective 31 July. But from my point of view, I didn't take this to mean this was notice of dismissal. There was a lot going on behind the scenes. I didn't sign the letter. I was given it. I was given it whilst being told:

PN59

Don't worry, we have to do this as a formality, but we are still continuing to work out your employment arrangements with King & Wood Mallesons.

PN60

That was honestly how it happened.

PN61

VICE PRESIDENT WATSON: But it was this letter that effected the termination of your employment.

PN62

MS SENARATNE: I don't think so.

PN63

VICE PRESIDENT WATSON: It was provided to you.

PN64

MS SENARATNE: It was hand delivered to me.

PN65

VICE PRESIDENT WATSON: What effect the termination of your employment if it wasn't this letter?

PN66

MS SENARATNE: In the following weeks I was in and out of discussions. I met with partners in other firms sorry, in other teams of the firm in regard to working with them. And then I think what effected in reality the termination was a meeting I had with Kathryn Bonning who is here today for the respondent in which she said that I had been unsuccessful in those interviews with other partners. And then that was the date that I was asked to leave the firm and that is what I took to mean notice of termination because until that time I did not know what was going to happen to me in terms of my employment arrangements at the firm. I haven't tendered that evidence obviously in relation to the weeks after 31 July.

PN67

VICE PRESIDENT WATSON: I guess the question is whether those subsequent discussions related to the possible withdrawal of the notice of the termination letter and they didn't. So aren't we left with the situation that the letter was the instrument that terminated the employment?

PN68

MS SENARATNE: In the absence of any other evidence to the contrary, which I have been not permitted to tender, then, yes. But I would strongly reiterate that I do have evidence that I haven't yet tendered which may actually suggest the opposite.

PN69

VICE PRESIDENT WATSON: Thank you.

PN70

VICE PRESIDENT CATANZARITI: I take it, Ms Senaratne, you were only paid up to 31 July, is that right?

PN71

MS SENARATNE: No, your Honour.

PN72

SPEAKER: Plus pay in lieu of notice.

PN73

VICE PRESIDENT CATANZARITI: Sorry?

PN74

SPEAKER: Payment in lieu of notice.

PN75

VICE PRESIDENT CATANZARITI: Plus payment in lieu of notice.

PN76

MS SENARATNE: Yes, yes, that is right.

PN77

VICE PRESIDENT CATANZARITI: Mr Kellock.

PN78

MR KELLOCK: Your Honours, we rely on our submissions as filed. We have nothing further to add. Thank you.

PN79

VICE PRESIDENT CATANZARITI: Thank you. Thank you, the decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.21 AM]