C2018/4576, Transcript of Proceedings [2018] FWCTrans 374 (2 October 2018)

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PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good afternoon. Mr Fredericks, you're appearing pursuant to permission granted for the appellant.

PN2

MR G FREDERICKS: Yes, Deputy President.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, and Mr Woodbury, likewise for the respondent.

PN4

MR S WOODBURY: Yes, your Honour.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Well we've listed this matter to deal with the question whether permission to appeal should be granted, so we've had the opportunity of reading the submissions that each party, or at least that the appellant has filed and this is an opportunity to elaborate on any matter that you think appropriate, Mr Fredericks, so away you go.

PN6

MR FREDERICKS: Thank you, Deputy President. Deputy President and members of the Commission, the key points the applicant wants to make are very much set out in the applicant's outline of submissions filed last week and I'm not proposing to go through all the points that are made here. My intention is really just to hit upon - - -

PN7

DEPUTY PRESIDENT GOSTENCNIK: Mr Fredericks, could I just trouble you to move that microphone on your right a bit closer to you.

PN8

MR FREDERICKS: Is that better?

PN9

DEPUTY PRESIDENT GOSTENCNIK: Much better, thank you.

PN10

MR FREDERICKS: To start again, the key points of what the applicant has to say in support of his application for permission to appeal are set out in submissions filed last week. I'm not proposing to go through those in whole or even in a huge amount of detail. My proposal really is just to go through and hit really upon some of the key points as we see them and obviously if the members of the Commission, members of the Bench, have any questions, to deal with that, any questions or concerns that the Commission might have.

PN11

The fundamental point in the applicant's submission is this, and it appears to be recognised that this is a fundamental point on how the hearing was run and the decision at first instance was given, which is this, that the evidence in the applicant's submission shows that the applicant intentionally consumed five actual alcoholic drinks. That, on the evidence, uncontested, was what the applicant intended to do on the night in question.

PN12

That had the, and I apologise, there's a typo in my submissions in 4(b), the dismissal was upheld on the basis that the applicant was responsible for consuming, and it should be 14 standard drinks, was responsible for consuming 14 standard drinks. I should add, the expert evidence from the respondent - apologies, I withdraw. The expert evidence from the applicant, was in the relevant doctor's report, was that the standard drinks consumed was in the order of 10.4. The respondent's was in the order of 18.

PN13

There seems to have been an arrival, in general terms, that the applicant consumed the equivalent of 14 standard drinks but for the purpose of this permission to appeal hearing, it's not necessary to delve further into that. But the evidence, in short, is that the applicant intended to consume five physical actual drinks. He unintentionally consumed significantly more than that and, which is uncontested, that had an adverse effect, which is not disputed, an adverse effect on the applicant such that he was not able to perform his - he was on slip duty, of course, and he was not able then to perform his duties on the return flight the next day from New York to Sydney and had to stay in New York at least one additional night and his employment was terminated because of that and at first instance, the Commission found that the dismissal was not unfair because of the fact that the applicant had consumed 14 standard drinks and it is that fact, that distinction, which the applicant submits was not properly drawn in the decision between what he intended to do and the unintended consequence of what he did, that distinction wasn't properly drawn, leads to both - well it's a significant error of fact, it's probably error of law in terms of how the finding was arrived at and results and also in the decision coming to an unjust result as set out in the submissions.

PN14

I will dwell on this issue of what the applicant intended to do but that really is the key to well this permission to appeal hearing and, frankly, the merits of the case generally. The applicant had five standard drinks. As I said, and I set this out in the submissions, that's not disputed. There's no finding, importantly, to the contrary. The only evidence is the evidence of Mr Urso and there was also a statement from someone who didn't give evidence, Mr Littmoden, which is also in evidence, who was drinking with Mr Urso that night and who vouches, similarly says that they each consumed five actual drinks.

PN15

We say consuming five drinks is not unreasonable. It's not an illegitimate thing to do, it's not a reckless thing to do. On the applicant's evidence, it's something he had done before with no ill effect. In fact, his evidence is he knew he could safely have five drinks so for him to have five drinks on the night in question was quite a reasonable and responsible thing to do, in the applicant's submission. It had an unintended consequence of the applicant having something in the order of 14 standard drinks.

PN16

There was no finding in the decision as to how the applicant came to have consumed 14 standard drinks. For example, there's no finding in the decision that the Commissioner didn't believe that the applicant only had five actual drinks and that the applicant had more. There's no finding that the applicant knew he was having 14 standard drinks and there is no real finding on how the applicant might have came to have had those 14 standard drinks.

PN17

COMMISSIONER BISSETT: Mr Fredericks, was there any evidence that the drinks he consumed were standard drinks?

PN18

MR FREDERICKS: I'm using the expression five actual drinks. The evidence was - without taking you specifically to the references, the three drinks were I think three gin and tonics and another one was a cocktail which has two alcoholic drinks in it, so the suggestion that - - -

PN19

COMMISSIONER BISSETT: There was no evidence that any of those drinks were standard drinks in the definition of a standard drink?

PN20

MR FREDERICKS: I'm not sure that they would have been standard drinks in that sense, Commissioner.

PN21

COMMISSIONER BISSETT: No.

PN22

MR FREDERICKS: It seems to be the case, and this is suggested on behalf, very much put on behalf, of the applicant that there's a practice of what's called free pouring at the bar in question, so perhaps contrary to, at least, my experience, now you should go to a bar and you get a cocktail you often get measured out in a nip or from the bottle up from the spigot, the drinks are actually free poured, so - and this was unbeknownst to the applicant, on his evidence, so unbeknownst to the applicant - - -

PN23

DEPUTY PRESIDENT GOSTENCNIK: The business isn't into making profit?

PN24

MR FREDERICKS: Well maybe they're just more generous in New York, Deputy President. Nonetheless, that seems to be the practice.

PN25

DEPUTY PRESIDENT GOSTENCNIK: Not in my experience.

PN26

MR FREDERICKS: Maybe alcohol's cheaper, maybe they make their profit in other ways but, no, that seems to have been what happened, in the applicant's submission. It has to be said the applicant's immediate thought, waking up the next morning after being hit by a freight train, and now it's my words not his, was he didn't now what happened and his mind immediately went to thinking "Oh, my drinks have been spiked".

PN27

We recognise now that would be unlikely. It seems more likely that there was a practice of free pouring and there was some evidence of that which the Commissioner, in the decision, chose to disregard. I think Mr Jackson, who gave evidence on behalf of the applicant, and this is referred to at paragraph 57 onwards, went back to the bar later and observed the practice of free pouring in action and the Commissioner chose to not put any weight or chose to disregard that evidence which we say was actually a mistake because it was directly relevant evidence because it was the only direct evidence of a practice of how the bar actually poured their drinks.

PN28

True, it wasn't evidence of what happened on the particular night but it was nonetheless directly relevant evidence of what the practice of the bar was and we say the Commissioner, in the decision, should have put weight and should have had regard to that evidence because it was directly relevant to a fact in issue, particularly in circumstances where Qantas themselves did not make any inquiries about whether the bar free poured the drinks, and there's a summary of Ms Collins' evidence, who's dealt with this, at paragraph 120 of the decision.

PN29

That evidence, as to free pouring, was directly relevant and when one looks at the totality of what happened, one, in our respectful submission, actually is drawn to a conclusion that there's a high likelihood that free pouring did take place and it's probably a concept unbeknownst to us here in Australia that bars would do that and so it's not something the applicant says he should have been expected to be looking out for, should have been sitting there at the bar and necessarily paying attention to what was happening. He thought he was having five drinks, couple of them were mixed but he thought he was having five drinks, he's done that before.

PN30

DEPUTY PRESIDENT GOSTENCNIK: But didn't the Deputy President, in fact, take into account the allegation of free pouring and determine that ultimately it was of no assistance since she didn't accept, she found implausible, your client's explanation that he didn't feel affected until after his last drink, given the volume - - -

PN31

MR FREDERICKS: Indeed, that was - my apologies.

PN32

DEPUTY PRESIDENT GOSTENCNIK: Sorry, given the volume.

PN33

MR FREDERICKS: Yes, that is correct, Deputy President, and from paragraphs 178 to 185 of the decision, the Deputy President deals with the issue of free pouring and says that the claim that the - paragraph 183:

PN34

The claim that the bartender free poured drinks does not assist Mr Urso. If free pouring occurred

PN35

which we say it does:

PN36

I find it implausible that Mr Urso did not feel intoxicated at an earlier time and adjust his intake accordingly.

PN37

The problem with that, and that's quite an important finding, is that the evidence about whether or not Mr Urso felt intoxicated at an earlier time, the only evidence about that is Mr Urso's own evidence in cross-examination, which I've referenced in the submissions, where he says that he did not feel intoxicated at an earlier time. His evidence is that he went - it hit him all of a sudden, he'd had five drinks, and this is under cross-examination, he'd had five drinks and it didn't him until he went to the bathroom.

PN38

Of course, the evidence of the experts, I don't think specifically dealt with how quickly it would have taken Mr Urso to feel like he was intoxicated, so it actually doesn't really, on my reading of it, seem to be much evidence on this issue at all and the only evidence seems to be that of Mr Urso.

PN39

DEPUTY PRESIDENT GOSTENCNIK: Well it would depend, at least in part, on the period of time over which the alcohol was consumed.

PN40

MR FREDERICKS: Indeed, and there's no doubt that the evidence of the experts, at least, does show, and I think we can all accept this, that it does take a while for alcohol to get absorbed into the system and have an effect but nonetheless, the evidence of Mr Urso was that it didn't have an effect but also - - -

PN41

DEPUTY PRESIDENT GOSTENCNIK: But, sorry, wasn't the evidence of Mr Urso that he arrived at between 10.00 and 10.30 then over the next hour and a half he had the two mixed cocktails upstairs. He went downstairs, queued up in the rain, or something to that effect, and then over a period of another two hours he and his colleague consumed a further three gin and tonics, which, on that timeframe, would be over a period of three and a half hours or thereabouts, is that right?

PN42

MR FREDERICKS: I think there was a shorter timeframe.

PN43

DEPUTY PRESIDENT GOSTENCNIK: Well I'm just reading from his statement, that's all.

PN44

MR FREDERICKS: Yes, I think it's closer to two hours when I - - -

PN45

DEPUTY PRESIDENT GOSTENCNIK: Well that's what I was going to ask you about because as I understand it the ambulance showed up just before midnight, is that right?

PN46

MR FREDERICKS: Yes.

PN47

DEPUTY PRESIDENT GOSTENCNIK: So that on his timetable, it could have only been an hour and a half or perhaps two hours but it's just that in his witness statement, and this is picked up in the Deputy President's summary of chronology, there's a different version, that's all. At paragraph 33, which is at appeal book 97, he says - sorry, it might be a bit earlier. Yes, at 96, he says "My recollection is we arrived at the bar between 2200 and 2230" and then over the page he then talks about the drinks and at 33(c) he says "Brent and I had two peach martinis first on the rooftop bar. That was about an hour and a half we were there" and then they line up for drinks downstairs and, I think, yes, 33(d), he says "We then had three house gin and tonics over the course of about two hours", and the Deputy President seems to pick up that timeline in her summary at 42, at least indicating that's his recollection of events and that assuming that his recollection about the time of arrival is correct, given what we know about when the ambulance arrived, the timeframe of three to three and a half hours can't be right.

PN48

MR FREDERICKS: No, the timeframe seems to be then, understandably and so his recollection of the events in the evening are not necessarily great, but the timeframe seems to be arriving at the bar at about 10 o'clock also with an ambulance being called 11.50, and that's referred to at paragraph 43 of the decision, so it may be that the reference, in 42(b) of the decision, to each having three house gin and tonics over the course of about two hours, the two hours is intended to be perhaps the description of the entire evening or just a general ballpark figure rather than necessarily being 100 percent precise and - - -

PN49

DEPUTY PRESIDENT GOSTENCNIK: Yes. It's taken out of your client's statement, that's all.

PN50

MR FREDERICKS: It is and they are, of course, times provided after the event and it was really the issue was not, in our submission, not necessarily how long they were but the alcohol that was consumed and, of course, getting a bit drunk even on slip duty, of itself, is not a breach of the policy. It's the excessive - - -

PN51

DEPUTY PRESIDENT GOSTENCNIK: Mr Fredericks, I guess the point that I'm making is this, that the implausibility of the explanation finding, which you criticised, needs to be viewed against the context in which your client doesn't have a good memory about what happened, I think he says that, and his timeline in his statement is objectively wrong so that the implausibility about him not recalling or suggesting that he wasn't affected by it or didn't feel affected by alcohol until the incident needs to be measured against all of the circumstances, including his vague memory about the timeframe.

PN52

MR FREDERICKS: It does, although the timeframe seems to be roughly in the order of two hours and assuming he wasn't ‑ ‑ ‑

PN53

DEPUTY PRESIDENT GOSTENCNIK: Well your client's version of events is three and a half.

PN54

MR FREDERICKS: I think it depends on how one reads that, over the course of the two hours. When I read that, and maybe it's me mis-reading it, Deputy President, I read that two hours, over the course of two hours, to refer generally to how long they were there rather than the three gin and tonics took two hours.

PN55

DEPUTY PRESIDENT GOSTENCNIK: But then that doesn't explain the first hour and a half. Why would he mention that? Why wouldn't he just say for a further half an hour? In which case, three gin and tonics over the spread of half an hour, even in a regular size, would have some impact.

PN56

MR FREDERICKS: It would have some impact but the - see these are issues that are properly coming out now, Deputy President. This is not something that was really tested in the hearing, and the timeframe wasn't really tested or made a point of issue even in the decision itself, and, for example, there was no - in a context where the onus of proving a valid reason is on the respondent, in our submission, when one is looking to - when you've got the actual evidence of the applicant as to what, if any, effect this was having on him, the actual evidence of the applicant to that effect, and it doesn't seem to have been put to him that there are issues with his timeframes and then to get a finding, in the absence of anything else, a finding that that evidence was implausible, in our submission, is a finding that was not properly open to the Commission, with respect to the Deputy President.

PN57

It may be that criticisms can be made of the applicant as to the timing or perhaps how the statement was expressed but that's not something that was really drawn to the applicant's attention in the proceedings below. It's not something that was made an issue of. The only evidence about the feelings, whether the applicant was feeling, I guess, intoxicated, probably in brackets, to such a level that he should have stopped drinking, close brackets, the only evidence is that the applicant's saying "No, I didn't feel like that. It just hit me all of a sudden" and we don't, unfortunately, have expert evidence about why that might have happened, as I read it.

PN58

We don't have the evidence, with respect, that would have allowed, properly allowed, that finding of implausibility to be made. I've misplaced my submissions.

PN59

DEPUTY PRESIDENT GOSTENCNIK: It's all right.

PN60

MR FREDERICKS: That actually deals with a couple of extra points I was going to make. The other point we would make is really about to what extent, and we probably just flow on from the discussion we've just had, to what extent the applicant should be held responsible, in the sense of being dismissed, to what extent the applicant should be held responsible for the unintended consequence of actions that are, on its face, reasonable and lawful and in the decision, the Deputy President referred to a decision of Gregory v Qantas and I deal with that at paragraph nine of the submissions where, in that case, an employee, I think a pilot, had gone out and bought some cannabis, I think they were in Indonesia, he'd gone out and bought some cannabis, smoked it and come back and engaged in some unfortunate behaviour, I think including groping one of his fellow employees in the back of a taxi, and his defence to his actions were "Look, I didn't mean to do it. It was because I smoked the cannabis and it had this effect on me. I didn't mean to take the actions that I did".

PN61

But that's a very different situation to the one we're faced with in these proceedings, with respect, because that's someone going out, buying unlawful drugs, obviously of itself that's a problem, buying unlawful drugs which, by their very nature, it would be of unknown strength, of unknown potency, you really could have no idea what you were getting, if you choose to go out and buy some illegal drugs, you can't then complain.

PN62

I think it's quite clear that it had an affect on you you weren't anticipating and we say that the decision in Gregory on that basis was quite properly reached. It's very different to the situation we have here where the applicant went out and had five drinks, two of which were the cocktails, but the applicant went out and did that in circumstances where, in our submission, he couldn't reasonably expect to think "Oh hang on, I might be having 10.4. I might be having 14. I might be having 18 drinks".

PN63

He had five drinks and that's what he thought he was having. He thought he had reasonably expected to have known the potency. We say he can't reasonably expected to have been required to stand at the bar and watch them pour and why would he have any cause to do that? That's a very different situation between Gregory and the one we have now and we make that point quite strongly because it is of some importance to this case. In that circumstance, it's also relevant the evidence that he had in the past had five drinks and he knew he was okay to do that and the Deputy President chose to disregard, if that's not too strong a word - - -

PN64

COMMISSIONER BISSETT: But Mr Fredericks, was there any evidence that your client had previously or regularly consumed this mixture of drinks, peach cocktails and gin and tonics in New York?

PN65

MR FREDERICKS: I don't think there was - my instructing solicitor will have a quick look through. My recollection is that there's not, the evidence didn't get to that level of detail. The evidence, on my recollection of it, is that his evidence was "I'd had five drinks before" and that was my - I'm paraphrasing, "I'd had five drinks before so I knew that was sort of my capacity and that's what I had this time".

PN66

COMMISSIONER BISSETT: There's a big difference between having five beers and five - well they used to be seven ounce glasses of beer, I don't know how big they are now but five beers and five cocktails.

PN67

MR FREDERICKS: Indeed, and if he'd had - and it's perhaps ‑ when we look back on the proceedings and decision you always think of these questions, would have been good if these questions were asked but they weren't, and clearly would be a world of difference between "I'm used to having five middies and I went out and had five drinks which each contained three spirits" but if the evidence was "I'm used to having five drinks" and at best he knew he was having seven because one of the drinks had two shots in it, possibly, because he had peach schnapps and a rum, although, on its face, you wouldn't know whether or not you're getting a full shot of either of those, but assume "In the past I've had five drinks", assume he should have known that he was having seven because of those two cocktails, that's not different ballparks of consumption.

PN68

That's roughly in the same ballpark and the way, unfortunately, the Deputy President chose to deal with that, I think at paragraph 175, was to not put any weight on that and say:

PN69

Mr Urso's claim that he could have five alcoholic drinks without compromising his ability to operate the next day, in my view, is unfounded and proved to be wrong.

PN70

But, again with respect to the Deputy President, that reasoning is a bit circular because it seems to be taking the ‑ the basis for not believing, well not giving any weight to the applicant's evidence about what he had previously been able to drink and why that was unfounded, was the fact that he'd had five drinks on the night in question and so it is somewhat circular to use events on the night in question to disprove or not believe his evidence of his prior experience and particularly when it's quite clear that what he actually consumed was substantially more than five drinks, was substantially more than seven drinks.

PN71

It's somewhere between 10.4 or I think 14's a figure that got landed. He's actually ultimately had 14 drinks. That's a world of difference between having five drinks and 14 drinks and in circumstances where the only evidence as to what he intended to drink was to the five drinks in question. There's a world of difference between seven drinks and 14 drinks. That's a completely different ballpark.

PN72

COMMISSIONER BISSETT: But that goes to the question I raised earlier of the difference between the drinks and a standard drink.

PN73

MR FREDERICKS: Yes.

PN74

COMMISSIONER BISSETT: You can buy a glass of wine in a hotel and get more than one standard drink in the one serve of wine that you get. I don't know how many standard drinks of peach drink, peach and rum, is worth but I suspect it's more than - - -

PN75

MR FREDERICKS: Sorry, Commissioner, I'm not picking you up very well there.

PN76

COMMISSIONER BISSETT: I said I don't know how many standard drinks are in the peach cocktail that your client consumed but I would think it's more than one standard drink.

PN77

MR FREDERICKS: That's possibly right.

PN78

COMMISSIONER BISSETT: Again, this goes to the difference between the five drinks your client had and five standard beers over the two or three hours that they recommend you consume it over.

PN79

MR FREDERICKS: That's correct, of course, Commissioner, but the issue is when people are thinking about what they can - the past experience of what they drink, in my submission they're unlikely to be thinking in terms of standard drinks. They are more likely to be thinking in terms of actual drinks. It was not put to Mr Urso, I don't think, that even having the five drinks, that was a different pattern of drinks than to what he had previously might have had and even if that was five drinks, in this instance he actually had seven - yes, the transcript that deals with this is at page 460 of the appeal book.

PN80

It's the cross-examination of Mr Urso and where Mr Urso gives evidence about the drinks that he had and it's put to him:

PN81

Now the standard amount of alcohol that you consumed is five drinks, is that correct?‑‑‑Yes.

PN82

Then there's a bit of a discussion of what that means. Further question at PN439:

PN83

But just on these five drinks, you say I'm well aware of my alcohol tolerance levels and I found five drinks is a quantity that I'm able to consume without compromising my ability to operate the next day, correct? So, it's a five drink rule is it?‑‑‑Yes.

PN84

In terms of the five drinks, is it five standard drinks?‑‑‑Five standard drinks, yes.

PN85

Then there's a bit of discussion about:

PN86

Is that five standard drinks or not

PN87

and at the very bottom of page 460, Mr Woodbury:

PN88

Yes?‑‑‑Yes, yes. Like maybe, I don't know. Five wines or just five drinks, yes.

PN89

There certainly wasn't the evidence of the applicant that he thought in terms of five standard drinks. He was just thinking in terms of five actual drinks and that was his experience and can I suggest, and I think is a fair thing to put on the evidence, that the problem didn't arise because Mr Urso thought he was having five drinks or five shots and actually had seven. That's not how the problem arose.

PN90

The problem arose because Mr Urso thought he was having five actual drinks but that ended up being in the order of an equivalent of 14 drinks and that's, again, uncontested evidence about what Mr Urso, his experience was and, again, circumstances where, on all the evidence, he couldn't really have been expected to stop and think "I'm in a bar in New York. Maybe I need to double check that the drinks aren't being free poured so I'm not having twice as much alcohol than I think that I'm having".

PN91

That's just not where the evidence takes this case. The evidence is he just went out for a few casual drinks with a fellow employee, and that fellow employee's evidence was that they'd had five drinks as well, had those five drinks and the ultimate consequence of that was that Mr Urso suffered - went through what he went through and, in our submission, particularly in the light of the evidence of Mr Jackson, the only plausible submission is that there was free pouring and he had more drinks than he realised he was having and it's unfortunate, in retrospect, that there wasn't more consideration of how long it takes for the drinks to creep up on you and when a person like Mr Urso would have reached a position where he realised he was well and truly drunk as opposed to feeling you have after having a few drinks, there was no discussion of that and that's important, again as we say in our submissions, the circumstances where that's part of the valid reason and it's the onus on the employer to substantiate the valid reason and the employer themselves did not make any inquiries about whether or not there was a practice of free pouring at the bar in question.

PN92

They did, to be fair, I think the evidence shows, attempt to get the CCTV footage but the evidence is, and it's reflected in the Deputy President's summary of the evidence of Ms Collins, that there was not that attempt to get that information regarding free pouring and there was the evidence that that's what happened and when one looks at the events, it seems to be quite, frankly, a logical and reasonable explanation of what happened, that Mr Urso went out and entirely legitimately, both in light of his own experience, and frankly on any objective sense, entirely legitimately went out and had five drinks and unbeknownst to him he's had 14 drinks in circumstances where he could not reasonably have expected to expect that to happen and that's, with all due respect, the flaw in the decision and everything else in terms of our submissions leads in to how that mistake was made in the decision and the consequences as to why that is an error and that's really the key to this case, with respect - - -

PN93

DEPUTY PRESIDENT GOSTENCNIK: The obligation, is it not, is on the cabin crew to ensure that he or she shows up for work in a fit state.

PN94

MR FREDERICKS: Indeed it is.

PN95

DEPUTY PRESIDENT GOSTENCNIK: Here your client is in a foreign port overnight, drinking in a bar with which he's unfamiliar, he's never been there, and you say he has no responsibility?

PN96

MR FREDERICKS: No, I don't. Sorry, that was a bit abrupt, my apologies.

PN97

DEPUTY PRESIDENT GOSTENCNIK: That's all right.

PN98

MR FREDERICKS: We don't say he has no responsibility. If he had gone out and had 14 drinks, we wouldn't be here.

PN99

DEPUTY PRESIDENT GOSTENCNIK: Well if he had've gone up to the bar and said "Do you pour in standard measures or free pour?", we wouldn't be here either.

PN100

MR FREDERICKS: That's true but how many people do that in a - - -

PN101

DEPUTY PRESIDENT GOSTENCNIK: People who have to work the next day - - -

PN102

MR FREDERICKS: Maybe. There's no evidence - - -

PN103

DEPUTY PRESIDENT GOSTENCNIK: - - - in a safety critical role.

PN104

MR FREDERICKS: With respect, for that to be able to be held against the applicant, there should have been some evidence that that was in any way the practice of any of his fellow employees. This is a bar, a reputable bar on the face of the evidence, in a major capital city, in New York, and where having five drinks, or even seven drinks, this is at 10 o'clock at night, or roughly speaking, circumstances where he's due to fly out at 5.30 pm the next day, so ample time to metabolise any alcohol, it's really a council of perfection and if I can take the Commission to the decision at page, it's not page number, it's paragraph 29 onwards - sorry, 32 sets out some of the relevant policies and that over the page from where paragraph 32 starts, there's the cabin crew responsibilities on slip and they must not engage in any activity that manifestly increases the risk of illness, et cetera, and we say well having five drinks does not manifestly increase that risk.

PN105

Going out and buying some drugs, yes, absolutely manifestly increases that risk and the relevant policy with respect to alcohol, which I've flagged in my submission, talks about excess consumption, and we say that has to mean knowing or at the very least reckless excessive consumption and true it is that employees such as Mr Urso had an obligation to ensure that they report up to work the next day but that doesn't mean that it's somehow an absolute obligation on the employee and they'll be held responsible no matter what.

PN106

For example, it might be Mr Urso got up, just had a quiet night out, got up the next morning and decided to, this may or may not be a good example, decided to go out for a jog in perfectly nice weather, tripped over something or someone ran into him and he fell over and injured himself and he couldn't fly, or he was crossing the road lawfully at a green pedestrian light and a car comes through and hits him, none of those things manifestly increase the risk, none of his activities in themselves manifestly increase the risk that he won't be able to report to work so it's not that absolute duty.

PN107

It's, and I'll use that word reasonable, it's not precisely used but it's a risk, has to manifestly increase the risk and it has to be, if we can find the other reference to the policy, I think it refers to excessive consumption of alcohol and that's why you have to come - we say when you're looking at those tests it's what did the applicant do? Is it something of itself manifestly increased the risk? Is it something of itself there was an excessive consumption of alcohol? In our submission it wasn't and I understand, Deputy President, what you say about he could have asked how they poured their drinks but there was no evidence, as I said, that anyone, any employee, did that or that any employee was aware it was expected of them, which is important if we're trying to look for some general practice perhaps that Mr Urso did not follow.

PN108

DEPUTY PRESIDENT GOSTENCNIK: Mr Fredericks - - -

PN109

MR FREDERICKS: I'm sorry.

PN110

DEPUTY PRESIDENT GOSTENCNIK: - - - is it accepted that if you drink 14 standard drinks at least in one and a half hours you're going to be adversely affected?

PN111

MR FREDERICKS: Sorry, Deputy President, I can't hear you very well.

PN112

DEPUTY PRESIDENT GOSTENCNIK: Do you accept that if you drink 14 drinks in an hour and a half that you're going to be in a very poor physical condition?

PN113

MR FREDERICKS: Yes.

PN114

DEPUTY PRESIDENT GOSTENCNIK: Right, and is it part of the case, or otherwise, that his work colleague also had the same free pour drinks?

PN115

MR FREDERICKS: Sorry, the colleague that was with him?

PN116

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN117

MR FREDERICKS: Yes.

PN118

DEPUTY PRESIDENT GOSTENCNIK: But he wasn't adversely affected?

PN119

MR FREDERICKS: That's the evidence to the statement that that colleague didn't give evidence but there's a statement that appears in a couple of places in the appeal book and also just referred to in the evidence that Mr Urso and, I think, Mr Littmoden's(sic) his name, were basically engaged in a shout, so they were having the same drinks over the course of that evening.

PN120

DEPUTY PRESIDENT BULL: Yes, I understand but if you agree that drinking 14 drinks in an hour and a half would put you in a poor physical condition, why is that his colleague wasn't in the same condition?

PN121

MR FREDERICKS: Well I understand the colleague is one, and I don't know if there's evidence of this or I might be ‑ and probably going on instructions and perhaps giving evidence from the bar table, I understand his colleague to be a bigger person. The other point is if he drinks - - -

PN122

DEPUTY PRESIDENT BULL: Well I'm just looking at paragraph 33 of the decision, the last dot point where the Commissioner says that Mr Littmoden consumed the same drinks and was not affected. You're now saying it was because he was a larger person.

PN123

MR FREDERICKS: Sorry, I'm not catching all you're saying, Deputy President.

PN124

DEPUTY PRESIDENT BULL: Sorry, I must not be speaking in the microphone properly. Paragraph 33, the last dot point, what do you say about that?

PN125

MR FREDERICKS: Well I think that was the evidence of ‑ that that was actually put forward by Mr Urso, yes, so Mr Littmoden consumed the same drinks and was not affected and that seems to have been the fact.

PN126

DEPUTY PRESIDENT BULL: Yes, but how do we rationalise that? I just can't work that out myself.

PN127

MR FREDERICKS: Well, and that's why I'm looking, my instructing solicitor to look, and I don't know that there's direct evidence of this so I'll put it as a hypothetical, if you like, that if, and I think her Honour even - the expert evidence says this, that different people process alcohol differently. For example, people of a bigger - different body weight will process alcohol differently, or be less affected by alcohol, than people of a lower body weight. For example, the evidence that Mr ‑ ‑ ‑

PN128

DEPUTY PRESIDENT BULL: All right, so you're saying that Mr Littmoden would have had the same amount of drinks, 14 in an hour and a half, and because of his size he wouldn't have known the difference? He would have thought it was just five standard drinks he had.

PN129

MR FREDERICKS: Well, and unfortunately we don't know, there just wasn't evidence about that, but if the drinks are being free poured, there's no guarantee that each person is drinking the same amount of drinks and I mean, Mr Littmoden could well have been, I guess, drunk, well in colloquial terms, could well have been very drunk but obviously didn't have - not to the extent - it didn't affect him to the same extent that it affected Mr Urso and Mr Littmoden might have been in the fortunate position that he went home and went to bed and slept it off or however he was adversely affected, might have hit him back at the hotel room but there's nothing unusual, given the apparent imprecision with which the drinks were poured, in two people having different reactions to how the drinks - to that number of drinks.

PN130

If it is the case that it's not believed that Mr Urso only had the five drinks, then that's a finding that should have been made. As we might all appreciate, that's a very serious finding to make, that the evidence given by an applicant and supported and corroborated by another person, if that evidence is not believed, then a finding should be made on that basis because otherwise there's a real risk, as might have happened here, that it's sort of an underlying assumption of we're forced to read between the lines that might well have led the Commission into error, so if there was a finding that if it's not believed that the applicant had five drinks, didn't consume the alcohol that he said he consumed, then that finding should have been made. It wasn't made.

PN131

There's no, ultimately - I mean, we're looking back unfortunately with some conjecture about what happened to Mr Urso on the night. He's ended up in hospital in New York, clear difficulties, with respect to all parties in these proceedings, obviously difficulties in gathering evidence from Sydney as to what happened in New York both either at the bar or in a hospital and there's a degree of supposition and that's recognised in the expert reports where varying figures are put forward as to the level of actual drinks that were consumed and for all we know, it was something that was completely out of left field, we don't know that, but ultimately we come back to the evidence that is there and the evidence, the corroborated evidence, is that Mr Urso had five drinks but unbeknownst to him he actually ended up having a lot more and that's really the issue, with respect.

PN132

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Fredericks, where can I readily find the statement of his colleague in the appeal book?

PN133

MR FREDERICKS: I'm sorry, Deputy President, I didn't quite get that.

PN134

DEPUTY PRESIDENT GOSTENCNIK: Sorry, where can - sorry. It's all right, I've found it, thank you. Yes, Mr Fredericks, sorry.

PN135

MR FREDERICKS: Members of the Commission, unless there are any further questions or I can assist in other ways, that's the submissions for the applicant.

PN136

DEPUTY PRESIDENT BULL: Sorry, before you sit down, Mr Fredericks, so just in a nutshell, are you, probably could work this out myself if I studied it a bit more closely, but do you say there is a valid reason for the dismissal or not?

PN137

MR FREDERICKS: We say there isn't.

PN138

DEPUTY PRESIDENT BULL: All right, so the fact that the applicant didn't turn up to work due to an alcoholic intake is not a valid reason?

PN139

MR FREDERICKS: That's correct.

PN140

DEPUTY PRESIDENT BULL: All right.

PN141

MR FREDERICKS: In these circumstances.

PN142

DEPUTY PRESIDENT BULL: Yes. No, I understand that, thank you.

PN143

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, Mr Fredericks. Mr Woodbury.

PN144

MR WOODBURY: Thank you, your Honour. Be relatively brief. In short, we say that it's not in the public interest for a Full Bench of this Commission to embark upon an examination of the amount of alcohol which was served or consumed at a rooftop bar in Manhattan on 22 July 2017, particularly when it's not in dispute that what alcohol was consumed was sufficient to record a reading, blood alcohol reading, of 0.205, that is not in dispute, nor that, as a direct consequence of the after effects of that consumption, that the appellant failed to attend for his rostered duty the next day.

PN145

That, in a sense, was the basis upon which employment was terminated. It was due to excessive drinking which then led to the failure to report to duty. The matters that my friend has gone to involve a detailed examination of what drinks were consumed, when, what their potential effect was on the applicant, in particular, in circumstances where the evidence was very unclear as to what happened on the particular night and, indeed, the two experts, what they were prepared to agree on, was that the blood alcohol content was 0.205 percent which, I think, everyone agreed, the experts agreed, it was a very high reading. What they also agreed upon, after some testing in cross-examination, was that a likely range of standard drinks that was consumed on the night was around 14 in the time period that the evidence availed itself of.

PN146

They're the objective facts and evidence, your Honour, in terms of the way in which the night in question unfolded and the evidence of what was a consequence of that. All of the other matters were actually cloudy or grey because of the simple fact that Mr Urso, in his cross-examination at paragraph 56 particularly on page 15 of the decision, accepted that his recollection and memory of the night in question was not very clear at all. You might recall that he actually blacked out. He went into the bathroom and vomited, blacked out and then had to be transported to the hospital and yet he maintained that he only consumed five drinks.

PN147

We, of course, could not call direct evidence as to the number of drinks that were actually consumed because we had no witnesses who were present. Mr Littmoden, who gave some statements as part of the investigation at the time, was not actually called to give evidence and his evidence, well his statements, were not tested. He actually did not give evidence in the actual proceedings but there was statements that were called but even that gave rise to inconsistencies in relation to the number of drinks that were actually consumed and I take your Honour through it if needs be but essentially, first time Mr Littmoden was spoken to in relation to how much was actually consumed, he indicated that there were two gin and tonics and about half a dozen ‑ sorry, I think it was two peach melbas and half a dozen gin and tonics.

PN148

That was subsequently, when he went to write his actual statement, changed to the five drinks in question, as Mr Urso contends. Mr Urso himself, in his initial discussion with Ms Baker, who was the - - -

PN149

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Woodbury, the first account was an oral account given, was it?

PN150

MR WOODBURY: It was and there is a filenote to that effect ‑ ‑ ‑

PN151

DEPUTY PRESIDENT GOSTENCNIK: Is that in the - - -

PN152

MR WOODBURY: - - - at AB252.

PN153

DEPUTY PRESIDENT GOSTENCNIK: 252.

PN154

MR WOODBURY: Ms Collins had that discussion recorded - - -

PN155

DEPUTY PRESIDENT GOSTENCNIK: Mr Woodbury, just hold on a minute until we find it. 252 did you say?

PN156

MR WOODBURY: Yes, AB252. This is a filenote of the discussion which Ms Collins had immediately with Brent, referred to Mr Littmoden, about what actually happened and you will see, at about point seven in asterisks two peach martini, half a dozen gin and tonics.

PN157

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN158

MR WOODBURY: That is a record of the discussion which Ms Collins, who was the investigator at the time, had with Mr Littmoden about what actually happened. It was purely fact finding and that was his direct response at that point in time. What happened then was that when she then went to Mr Littmoden and said "Can you actually now put that in writing in a statement" he changed his mind and he reverted to two peach martinis and three gin and tonics, which coincidentally was exactly the same amount that Mr Urso remembers consuming and she queried him and at paragraph 99 of the decision of Dean DP, she refers to receiving the signed statement of Mr Littmoden and he then says in response to querying as to whether or not his statement is correct, when he's referring to two peach martinis and three gin and tonics, because in the original discussion, that you get a file note of, she referred to two peach martinis and half a dozen gin and tonics, he said:

PN159

No, I did not say that, you must have misheard me, I would never consume that amount.

PN160

So there was immediately a question as to what exactly was consumed, that's one example.

PN161

The second example, and this, obviously, is off the back of the expert evidence which says that it was - the agreed expert evidence which is that it's in the range of about 14 drinks, at page 15, and I'm not going to the direct evidence, I'm going to the decision, more for convenience at this stage, your Honour, the fourth last dot point. Mr Urso agreed that during this first discussion with - - -

PN162

DEPUTY PRESIDENT GOSTENCNIK: Which paragraph are you at now, Mr Woodbury?

PN163

MR WOODBURY: So this is paragraph 56 of the decision of her Honour, but it's over the page, on page 15, where she dot points out what matters were put to Mr Urso and his comments and on the fourth last point, on page 15, it refers to the word "agreed" that during his first discussion with Ms Baker, who was the customer service manager on the particular flight, and she was enquiring after Mr Urso as to what happened, he told her that he only had four drinks, but then he explains:

PN164

But I'd literally just woken up when I said that and I wasn't feeling well and I understood that, yes - and I don't understand why I said that I just was feeling crap.

PN165

So you can see there immediately there is, again even with in (indistinct) a difference as to what he might have consumed. But then more particularly, and my friend started to take you to some of the cross-examination in relation to this and I think, Commissioner, was across the line of your questions as well, which related to whether or not any regard was had by Mr Urso to the actual quantity of alcohol in the drinks, that (indistinct) and the tenor cross-examination was to the effect that as far as he was concerned it was just five standard drinks, he didn't really care or have regard to what was actually in them. At page 460 my friend referred you to part of the cross-examination but over the page, at page 461, it goes on and I won't take you all the way through it but, basically he (indistinct) was that he would just have five drinks, but not have regard to the fact that there might be different shots and different amounts of alcohol in each drink, which I think goes to what you were saying, your Honour, in response to Mr Fredericks, about the fact there is potentially different amounts of alcohol.

PN166

Our submission, at the end of the day, in relation to that first instance and in relation to this application, is that the case doesn't hinge and never hinged on ascertaining precisely how much was consumed, in terms of numbers of drinks or even particularly alcohol. Indeed, the expert evidence is that it's impossible to actually be categoric in relation to the exact number of drinks that were consumed.

PN167

At paragraph 172 of the decision her Honour says:

PN168

I've considered the opinions of Dr O'Dell and Dr Hosegood.

PN169

Both doctors agreed that whilst it was not possible to calculate the exact number of standard drinks, it was likely that he consumed around 14 standard drinks. So we have that as the expert evidence, in relation to the number of drinks likely to have been consumed, it's not absolutely perfect, and neither of the doctors were as categoric as that. But what they were aligned with was that the blood alcohol content reading was 0.205 per cent and from Qantas' perspective it was the fact that that blood alcohol level could only have been derived from an amount of alcohol being drunk which, in its view, was excessive and which led, obviously, then to the consequence that he was not able to attend for his shift the next day.

PN170

Whether it was intentional or not, that again is something that is very difficult for an employer, in these circumstances, to call evidence about. But, at the very least, we would say, having regard to Mr Urso's own evidence, it was reckless disregard to how much he was actually consuming. He was due to fly out the next night, at 5 pm, in circumstances where he went out, voluntarily, to a rooftop bar, he consumed an amount of alcohol that led to a blood alcohol content of 0.205 per cent and from that perspective we say that his intent or not is almost irrelevant because we absolutely would accept and, in fact, I think I did accept, at first instance, that we would accept that it was not his intention to miss his flight the next day, nor to end up in hospital or be found unconscious in the bathroom of the particular bar in question. But he did place himself in the position where he consumed an amount of alcohol.

PN171

The only explanations that he could come up with as he tried to exculpate himself of the responsibility for that related to free pouring, which only came up well down the track and was put as part of the hearing of the matter, and I'll come to this evidence in a moment, but some evidence, very, very fragile evidence, was put forward in relation to that and then it was maintained, actually, as his primary position from the start, was actually the fact that his drinks had been spiked. Both of those explanations, we say, were absolutely without any foundation whatsoever and certainly there was no evidentiary foundation of them.

PN172

The drink spiking was simply something that was raised at the time, very early on, in relation to the incidents actually occurring. The medical reports that came through in relation to the blood alcohol content expressly said that there was no evidence of drink spiking, albeit even through the whole course of his show cause process he continued to maintain that that was a possibility. In relation to the free pouring situation, that's dealt with, initially, in paragraphs 57 to 61 of the evidence, this is Mr Jackson, who was a customer service supervisor based in Brisbane and also an information representative for the Flight Attendants' Union, and his evidence, which I don't think is in the appeal book comprised of an iPhone video of Mr Jackson being in the same rooftop bar on 11 January 2018, so some many, many months down the track, not on the day in question, which was of some drinks being poured. In fact, I think it was a Peach Melba, from recollection, drinks being poured and the way in which those drinks were being poured. From that, the assertion or the submission is made that that somehow provides some evidentiary support to the fact that drinks were free poured and that may well have contributed to an excess of alcohol being imbibed, unintentionally, by Mr Urso.

PN173

Now, we say that in terms of just putting together that construct, in relation to how the events might have unfolded, firstly it's not necessary for, even the Commission at first instance, (indistinct) the Full Bench to (indistinct) from that exercise. The second is, though, that what it really discloses is just the lack of responsibility or accountability that Mr Urso took for his own conduct on the night in question and, certainly, there was no evidence to the effect that, "The drinks were being poured away from me, or I couldn't actually see how they were being poured." The evidence was that, "They were just poured and I just drank what was put forward and I had five of them." That was taking Mr Urso absolutely at his word.

PN174

The evidence of free pouring, though, is scant. I objected to it, it was admitted, probably appropriately, under the way in which the Commission conducts hearings, without regard to legal form or technicality but weight could be given to it and her Honour, I think, gave it appropriate weight, which was very little at the end of the day. But, as I say, even if free pouring was occurring on the night it doesn't actually bear upon the actual matter in question in this proceeding and it certainly does not get up to the level required in order to gain permission to appeal, in terms of the matter being in the public interest and/or that there's been a significant error of facts shown on the evidence.

PN175

So, from our perspective, your Honour, we don't see that there's any merit at all to the appeal in general, let alone to the two questions or the question that has to be determined today. Unless there's anything further, your Honour, they're my submissions.

PN176

DEPUTY PRESIDENT GOSTENCNIK: No, thank you, Mr Woodbury.

PN177

MR WOODBURY: Thank you, your Honour.

PN178

DEPUTY PRESIDENT GOSTENCNIK: Mr Fredericks, anything in reply?

PN179

MR FREDERICKS: Yes, just briefly. I'll just touch on the last point firstly. The evidence of Mr Jackson is what it is, it was admitted into evidence by the Deputy President. It is evidence as to what happens at the bar in question, it is the only evidence of free pouring but again in circumstances were no inquiries were made by the respondent about the practice.

PN180

DEPUTY PRESIDENT GOSTENCNIK: But the Deputy President deals with that evidence, at 184, she says:

PN181

Mr Jackson's evidence, in this regard, doesn't assist. Mr Jackson was not with Mr Urso on the night, has no personal knowledge as to what Mr Urso had consumed.

PN182

She considered it and - - -

PN183

MR FREDERICKS: That's correct, but he wasn't there to give evidence about what I call the physical number of drinks that Mr Urso consumed, he wasn't called to give evidence on that point. He was called to give evidence about a practice of free pouring at the bar in question. There's evidence from Mr Littmoden that supports, and I'll get to this, there's evidence from Mr Littmoden that supports what Mr Urso said. All Mr Jackson is doing is saying, "I went to the bar, I spoke to the bar tender and I took a video and here's the evidence of free pouring." That evidence was admitted and that evidence, the respondent might not like it, that evidence is what it is. It's the only evidence about the practice and we're not going to know exactly what happened on the night, in the sense of having some sort of objective evidence, but Mr Jackson, with respect to free pouring evidence, Jackson's given evidence about the fact that there is the practice of free pouring at the bar.

PN184

This wasn't something that was done at an even that occurred years ago and we're going back now to get evidence of what happened it was, relatively speaking, contemporaneous. So the evidence is there and proper weight should have been put on it, in our submission.

PN185

DEPUTY PRESIDENT GOSTENCNIK: Mr Fredericks, what does the video actually disclose? Does it disclose - - -

PN186

MR FREDERICKS: I've only seen a description of it.

PN187

DEPUTY PRESIDENT GOSTENCNIK: Does it disclose what Mr Jackson said to the bartender before he took the video?

PN188

MR WOODBURY: Yes. It was basically set up, your Honour, by Mr Jackson to try and show a peach martini being poured and how they would actually pour it. But the video is grainy, there's no, for example, evidence actually given as to what's in the actual containers or how much, so a quantity of alcohol is being poured, it is just simply a visual depiction of a drink being poured. And, to the extent that there's a phrase "free pouring" I would absolutely accept that they're not measured out in nips, in the way that one might be familiar in Australia, or other countries, so it's not poured out in shot glasses and then poured into a glass, but actually how much alcohol is poured in, what is the alcohol being poured in, that is not actually in evidence or in the video. So that was our submission, that it really doesn't take the matter very far at all.

PN189

DEPUTY PRESIDENT GOSTENCNIK: Yes, all right. Sorry, Mr Fredericks.

PN190

MR FREDERICKS: It goes as far as showing that there was more alcohol than - there may well have been more alcohol than Mr Urso might reasonably have expected.

PN191

Then we get to the evidence of Mr Littmoden, not called to give evidence by either party, it's important to note. We have the initial file note of a call between Qantas HR and Mr Littmoden, then there's a file note of that conversation. So we don't actually know what Mr Littmoden said and there is later evidence where Mr Littmoden says, I had the reference which I've now lost, "I wouldn't have drunk that much." When he comes to give his written evidence, when he actually has to stop and think about precisely, he says, "Here are the drinks that I had."

PN192

The respondent's are going to say that's some sort of strange coincidence that it's the same number Mr Urso said, well, no, it's not a strange coincidence because he's reporting on what happened. Mr Urso didn't initially say four drinks, that was the morning after, literally the morning after when he was having that conversation. It's not surprising his memory might have been a bit hazy. It's never in his evidence that he can't remember anything, he can remember having the drinks he just can't remember what happened after he hit the floor in the toilet, to put it colloquially.

PN193

So the evidence of Mr Littmoden, when he came down to think about it in precise terms about what had happened, he's written evidence that he's literally signed off on, is to the five drinks. We don't know what questions are asked of Mr Littmoden to get that file note or whether it was put to him on the basis of the number of drinks, in relation to (indistinct) or if it was just a general chat about the number of drinks that were had on the night. I don't know if this inference is sought to be drawn and if it is it should have been quite explicitly put that Mr Urso has concocted this with Mr Littmoden, there's no evidence of that. Mr Urso, in fact, has denied, in cross-examination, that he's spoken to Mr Littmoden about this. Unsurprisingly, Mr Littmoden has given the same evidence about the number of drinks, because that's the number of drinks that was had.

PN194

But to come back to the more fundamental point, the evidence is not unclear about what happened on the night, the evidence is corroborated by Mr Littmoden. But the respondent says that it's not in the public interest for the Full Bench of the Commission to get into the nitty gritty of the alcohol that was consumed on the night. Well, with respect, it actually is, that is the fundamental point of this case. Unfortunately the Commission does have to dive into the nitty gritty of that detail because that's the valid reason. You can't say, "It's not in the public interest to see whether a valid reason was properly arrived at because it's all a bit unseemly because it involves a number of drinks." That's very much what the Commission has to do.

PN195

An employee has lost their job, there's a valid reason that apparently he's consumed 14 standard drinks. That valid reason is very much challenged in the evidence and the submissions of the applicant. So, unfortunately perhaps, the investigation into the consumption of alcohol on the night is precisely what the Commission has to do where in circumstances, as it was put by the respondent, the termination was due to excessive drinking.

PN196

The Commission, in the first instance and now, when looking at permission to appeal, has to look at whether the valid reason of excessive drinking was properly arrived at. In the submission of the applicant it wasn't. I have nothing further.

PN197

DEPUTY PRESIDENT GOSTENCNIK: All right, thank you, Mr Fredericks. We thank both counsel for their helpful submissions, we'll reserve our decision and public our decision in due course. Thank you very much, we're adjourned.

ADJOURNED INDEFINITELY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [2.47 PM]

Fair Work Commission Transcripts

C2018/4576, Transcript of Proceedings [2018] FWCTrans 374 (2 October 2018)