C2015/7423, Transcript of Proceedings [2015] FWCTrans 743 (24 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052893

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VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
DEPUTY PRESIDENT BULL

C2015/7423

s.604 - Appeal of decisions

Walpola

and

Transdev Melbourne Pty Ltd

(C2015/7423)

Melbourne

11.36 AM, FRIDAY, 18 DECEMBER 2015

PN1

VICE PRESIDENT CATANZARITI: Can I take the appearances.

PN2

MR M MINUCCI: If the Commission pleases, my name is Minucci. I seek permission to appear on behalf of the appellant.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Minucci.

PN4

MR T BORGEEST: Your Honour, my name is Borgeest. I seek permission to appear on behalf of the respondent.

PN5

VICE PRESIDENT CATANZARITI: Permission is granted to both parties. This matter is actually listed for permission to appeal and the appeal proper. We have read all the material. We appreciate brief, oral submissions. Thank you, Mr Minucci.

PN6

MR MINUCCI: If the Commission pleases. There is one administrative matter, your Honour, just to deal with. Previously there was amended grounds of appeal that were sent through to - - -

PN7

VICE PRESIDENT CATANZARITI: Yes, we've got those.

PN8

MR MINUCCI: Subject to your Honour's leave, we would seek to file those.

PN9

VICE PRESIDENT CATANZARITI: I know there's no objection, so we will take the - - -

PN10

MR MINUCCI: If the Commission pleases. The first matter that I wish to deal with, your Honour, is the first ground; namely, the failure of the Commissioner at first instance to take into account section 387(h) of the Fair Work Act. As your Honours will be aware, 387 states that a Commissioner "must take into account" the eight discrete matters set out therein when considering a dismissal is harsh, unjust or unreasonable; namely, those matters are mandatory precursors to the exercise of a discretion.

PN11

What does "take into account" mean? The words or the phrase "take into account" have been suggested by the High Court - and your Honours will have a folder of authorities that are in front of you. The first tab, the case of R v Hunt, your Honours will see at para 329 of the decision, the Honourable Mason J equates the words "have regard to" to essentially "take into account - - -"

PN12

VICE PRESIDENT CATANZARITI: Just to get to the short of this, your point is that you say he didn't put specifically that he has taken into account any other matters that are relevant and we can't infer from what he has done?

PN13

MR MINUCCI: That's right.

PN14

VICE PRESIDENT CATANZARITI: That's a matter for us ultimately on a permission to appeal and we would say he has gone far enough, so - okay.

PN15

MR MINUCCI: I apologise - - -

PN16

VICE PRESIDENT CATANZARITI: You don't need to labour the point. We have read all the submissions and, as I say, in these matters we like to keep them relatively short and to the point.

PN17

MR MINUCCI: Thank you, your Honour. I appreciate that. The only other authority on that point would be the authority of Tickner v Chapman, at number 2 in the appeal authorities. Also we would draw an analogy with the matter of Lefu, which is at number 3. The Full Court of the Federal Court set out considerations when determining the question about whether an administrative decision‑maker has, as your Honour says, gone far enough. As your Honour said, I won't labour that point.

PN18

The next matter, briefly, that I seek to take the bench to is the second ground which encompasses essentially the second to the fourth grounds of appeal; namely, the relevant factors that should be taken into account when considering section 387(h) and also when considering the question of the exercise of the discretion. We say that those matters should be taken into account. The additional matters that I propose to deal with are as follows: I don't propose to take your Honours through Australia Post. Your Honours will be more than familiar with that decision.

PN19

Dealing with, first, the question of whether the passengers had alighted the vehicle, the evidence is uncontested that at the time the decision was made by the appellant to return the bus to the depot, which is across the road - or was across the road from where the bus had stopped, there were no passengers on the bus. Those passengers had alighted previously and the employer was aware of that. That, as I understand, is an undisputed matter. There was no evidence at first instance - - -

PN20

VICE PRESIDENT CATANZARITI: The Commissioner only finds one reason for termination. We're not interested in the other reasons.

PN21

MR MINUCCI: No, that's right.

PN22

VICE PRESIDENT CATANZARITI: So the question is whether it's open to him as a matter of discretion to use - having regard to our roles on the appellate bench - as to whether that's enough, then your other point is the 387(h) point. So, again, you don't need to labour the point on an appeal. We can read the material. We're asking you to draw attention to what is the relevant point. It's only one reason, the reason for termination.

PN23

MR MINUCCI: That's right. We say after that reason has been made, your Honour, after that reason has been determined - the valid reason has been determined - we say as a matter of discretion he has failed to take into account the relevant matters set out. They are, we submit, matters that ought ordinarily be taken into account as a matter of the exercise of the discretion and once those matters are taken into account, we submit that the discretion should be exercised in favour of the appellant.

PN24

That is a step after your Honours being satisfied that there is a failure or that the Commission should have taken those matters into account in the exercise of the discretion.

PN25

VICE PRESIDENT WATSON: Why do you say he didn't take them into account?

PN26

MR MINUCCI: That he did not?

PN27

VICE PRESIDENT WATSON: Yes.

PN28

MR MINUCCI: I say that, your Honour, with particular reference to the fact that there is an absence of essentially a conclusionary paragraph of sorts which says, "Yes, I found a valid reason. That has been found." On that point, the evidence that is then before the Commissioner, the undisputed evidence - there is that weighing up process that needs to take place. We say that that is not present - - -

PN29

VICE PRESIDENT WATSON: What is paragraph 56?

PN30

MR MINUCCI: Paragraph 56? Sorry, your Honours, I - - -

PN31

VICE PRESIDENT CATANZARITI: There are no other factors. He has referred specifically at paragraph 56 and also, right at the beginning, he says he is considering (a) to (h); so he draws the attention to the issues he's dealing with and that's the link.

PN32

MR MINUCCI: Well, we say on that authorities that's not enough.

PN33

VICE PRESIDENT CATANZARITI: Yes.

PN34

MR MINUCCI: We also say that that consideration that there are no other factors leaves us guessing. It's the leaving guessing which creates the error, in my submission. The fact is he could have said, "I say that this is not harsh because", whatever, or, "These are not relevant factors because." There is a "because" there that we say is missing and that constitutes the error in short compass.

PN35

Simply stating, "Well, there are no other factors", in light of the undisputed particular matters of evidence given the principles, we would say is not enough and that he should have actually addressed them. Unless the Commission has anything further in terms of specifics, given the nature of the material that has been read, those are my submissions.

PN36

VICE PRESIDENT CATANZARITI: Thank you, Mr Minucci. Yes, Mr Borgeest.

PN37

MR BORGEEST: Your Honours, the controversy before the Commissioner was - it was a valid reason case and most of the debate was about that. There was a debate about warnings and there was a debate about procedural fairness. The Commissioner resolved all those matters. There was a valid reason and that's not the subject of contest today.

PN38

The Commissioner may have in his discretion chosen to explore one or more of the four matters that my friend has now raised, but none of those matters were a part of the controversy below. I mean, I've addressed them one by one in the outline and I won't go back over them, but there has been nothing from the applicant to say how any of these matters are elevated to such a degree that there is a manifest injustice, let alone a discordance with principle arising from any of these particular matters.

PN39

These are matters that were not part of the controversy - I'm sorry, with the exception of the warnings element. The warnings element was dealt with squarely below; the matters concerning alighting from the bus - - -

PN40

VICE PRESIDENT CATANZARITI: Yes, the warning was discounted.

PN41

MR BORGEEST: The warning was resolved against the respondent.

PN42

VICE PRESIDENT CATANZARITI: That's right.

PN43

MR BORGEEST: So alighted from the bus, disruption to services and the applicant's circumstances; none of them featured as a ground of submission or controversy on the evidence as matters that might make the termination harsh, unjust or unreasonable even in the event that another reason is found, as it was. There is nothing in the Australia Post case or elsewhere which elevates these particular topics as matters that must be specifically addressed in the paragraph.

PN44

With respect, the Commissioner did not say that valid reason is the end of the matter. The application was dealt with in a perfectly orthodox way in accordance with the principles. It was a valid reason. The Commissioner turned his mind to the other necessary factors under the statute, considered them and found that there were no other factors that weighed in the discretion. Other than that, we rest of our outline.

PN45

VICE PRESIDENT CATANZARITI: The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.45 AM]