C2019/3079, Transcript of Proceedings [2019] FWCTrans 169 (26 June 2019)

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PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Before we begin I should formally advise the parties that we've read their submissions seeking permission to be represented by a lawyer and in each case we grant permission.

PN2

Mr O'Sullivan, you're appearing for the appellant?

PN3

MR O'SULLIVAN: Yes, your Honour, along with me is Mr Scott Cooper from the Catholic Commission for Employment Relations.

PN4

DEPUTY PRESIDENT GOSTENCNIK: Yes. Thank you, and Mr Aleksov, you're appearing for the respondent?

PN5

MR ALEKSOV: Yes.

PN6

DEPUTY PRESIDENT GOSTENCNIK: Yes. We've also had the opportunity to read the written submissions that have been filed by the parties so there isn't a need to rehearse those.

PN7

Yes, Mr O'Sullivan?

PN8

MR O'SULLIVAN: Yes, thank you, your Honour. This is an appeal from the decision of Deane DP toward costs to the respondent pursuant to section 400A. At the outset, your Honour, I'll touch very briefly on permission to appeal. The appellant submits that this decision if not overturned will have a significant impact on the way parties and in particular respondents to unfair dismissal applications approach settlement negotiations. Your Honour, this decision if left will stand as authority that a large monetary offer made by a respondent or an increased monetary offer made by a respondent in the face of an applicant seeking reinstatement is evidence that the respondent recognises that they have little prospects of defending the application.

PN9

Secondly, your Honour, we say that this decision if left untroubled will lead to a precedent that an applicant - a respondent who makes only monetary offers in the face of offers from an applicant to be reinstated similarly will be deemed to have been unreasonable. Now, your Honour, those findings, that precedent, will have the likely result that respondents will be reluctant to make large monetary offers to settle unfair dismissal applications. On this basis alone, members of the Bench, the appellant submits that the appeal raises a matter that is in the public interest and should be appertained.

PN10

I will come back later in my submissions to touch on other matters that the appellants submits and advances that this matter should be given permission to appeal, and some of those are set out in paragraphs 20 to 24 of the outlines of submissions. Your Honour and members of the Bench, the outlines of submissions set out some background to the appeal and it's important, your Honour, to pay consideration to the two reports of Mr Tawfiq. There may be some confusion in the mind of her Honour as to the status of these two reports.

PN11

Now at paragraph 4, your Honour and members of the Bench, there's reference to a number of allegations that were made against the respondent and other front office employees and there was a report undertaken by Mr Tawfiq which was ultimately used as a basis to make a number of adverse findings against the respondent and she was issued with a formal warning by the appellant, and that warning was provided by a Mr Bowyer. Now Mr Bowyer was at the time the decision maker. He made the decision with respect to the warning letter and he also made the decision with respect to the termination.

PN12

Following that, your Honour and members of the Bench, we have the verbal altercation which leads to the dismissal and ultimately the unfair dismissal application, the costs application, which was back in August. On this occasion, your Honour and members of the Bench, there was a second report undertaken by Mr Tawfiq. That was following an investigation into the allegations against both the respondent and Ms Culla. Certain adverse findings were made against both the respondent and Ms Culla. Prior to a decision being made to terminate Ms Culla she resigned and the respondent's employment was dismissed.

EVACUATION INTERCOM ANNOUNCEMENT [10.17 AM]

PN13

MR O'SULLIVAN: Well, that's good to know. Your Honour and members of the Bench, this is the second report and it appears that there may be some confusion perhaps by her Honour in the treatment of the report. But in any event - - -

PN14

DEPUTY PRESIDENT GOSTENCNIK: Sorry, can I just ask you to - - -

PN15

MR O'SULLIVAN: Yes?

PN16

DEPUTY PRESIDENT GOSTENCNIK: - - - perhaps tilt that microphone closer to you or perhaps move the lectern closer to you. Thank you.

PN17

MR O'SULLIVAN: How is that, your Honour?

PN18

DEPUTY PRESIDENT GOSTENCNIK: That's better. Thank you.

PN19

MR O'SULLIVAN: Yes. Now, your Honour, there was in - the unfair dismissal application was made and you'll see from the outline of submissions there was two days of hearing which took place in Wagga on the 28th and 29th March. Evidence was filed and served or witness statements was filed and served by both parties. Now it's important to note, your Honour and members of the Bench, that there were further witness statements that were filed and served following those first two days of hearing, and those were supplementary witness statements of a Ms Price and Ms Delaney.

PN20

They are found at appeal book volume 5 page 1436 to 1448 and appeal book volume 6 page 1608 to 1621. In short, your Honour and members of the Bench, both of those supplementary witness statements went to the issue of reinstatement, the practicability of reinstatement and arose from evidence that was given by a Ms Sandra Campbell. Now in the first two days of the hearing the evidence was given by the respondent, Ms Campbell, Mr Morell, Ms Grant, and the evidence of those witnesses was concluded and then the evidence of Mr Bowyer commenced but was not completed. That commenced on the first day of the hearing.

PN21

It's important to note, your Honour and members of the Bench, that if one looks through the transcript with respect to the cross‑examination of Mr Bowyer he was only taken to the letter of warning and the first Tawfiq report. He was not taken to in any way the decision to dismiss nor was he taken to the second Tawfiq report. The reasons for highlighting that will become obvious later in my submissions. After the hearing was adjourned it recommenced on 21 May 2018 and concluded on 23 May 2018 and the balance of the evidence was completed including the completion of the cross‑examination of Mr Bowyer and the balance of the appellant witnesses.

PN22

Now the cost offers, your Honour and members of the Bench, are well set out in the outlines of submissions but effectively there was one that was made before the first two days of hearing by the appellant which was effectively a monetary offer of 12 weeks' compensation, 12 weeks' payment on top of the existing five weeks' notice already paid. There was the first respondent offer on 1 March, reinstatement - back pay, I think it's fair to categorise that offer.

PN23

There was a second offer by the respondent on 3 April which was following the conclusion of the first two days of hearing which was on the same terms as the first offer of reinstatement and no back pay, and then ultimately there was a response offer by the appellant, the second offer which was for a payment of $54,000 which I don't think there's any controversy that that was in excess of the 26 weeks' statutory cap. If we can turn to the decision itself of her Honour. That decision is found at appeal book volume 1 tab 2A pages 11 to 31, and in my outline of submissions I traverse through that decision.

PN24

However in that exercise I forgot to deal with her Honour's summary of the submissions and evidence of both of the parties which is found at paragraph 12 through to 30 of the decision. Now following that summation her Honour then turns to the authorities with respect to section 400A and section 611 at paragraph 31 to 34. The appellant as is obvious from the grounds of appeal does not take issue with the appropriate principles that her Honour has recounted within those paragraphs. It's where we get to paragraph 35 of the decision is the beginning of where we say, the appellant says, her Honour fell into error.

PN25

If one turns to paragraph 35, and this is found at appeal book volume 1 at page 28. Her Honour concludes that having considered the evidence and submissions, that she was satisfied that the failure to agree to the respondent's second offer was unreasonable. Importantly, your Honour and members of the Bench, her Honour at paragraph 36 - and we say quite correctly so - finds that there were some matters which supported a view by the appellant that dismissal was appropriate at the time Ms Roche was dismissed, and makes particular reference to the reports of the workplace investigator, the Tawfiq report, and I pause there.

PN26

When her Honour says 'the Tawfiq report' it is assumed and it is evident that her Honour is referring to the second Tawfiq report of 2017 and not the first of 2015, and the report of the New South Wales Police Service. Now I won't take your Honours to the New South Wales Police report. I've referred to those in my outlines of submissions and the reference there, but in short there was a finding by the New South Wales Police Service that the respondent was in fact the instigator of the altercation.

PN27

It is then evident in her Honour's findings, and it must be the case logically so, that something - that there was evidence before the Commission and more importantly, available to the appellant, that they should form a reasonable basis, on a reasonable basis, that they could no longer rely on the report of Mr Tawfiq, the second report, the New South Wales Police report. It's at this point if I can just turn now to the grounds of appeal. With respect to the first ground, your Honour and members of the Bench, I need not say any more than what's made out in the written outlines of submissions at paragraph 28 through to 31.

PN28

I now turn to ground 2. This ground goes to the finding of her Honour that the respondent could not have maintained on a reasonable basis a view that it could defend the application, and that must be following the first two days of hearing. It is implicit within her Honour's finding that there was some reasonable basis for the respondent to no longer accept the findings in the second Tawfiq report and/or the New South Wales Police report.

PN29

If I can deal with sub-ground (b) first, your Honour and members of the Bench. Now to the extent that the decision calls into play any factual basis upon which her Honour could be said to have provided a reason for such a finding is found at paragraph 36, and that is where at the last sentence she states or finds:

PN30

In this regard I accept the submissions made on behalf of Ms Roche.

PN31

Those submissions of the respondent with respect to the rejection of the second offer are found at paragraph 16 of the decision, but also at firsthand are also found in the respondent's submissions on cross at appeal book volume 1 tab 3B pages 71 to 72. Now if one goes through those various submissions made by the respondent, to the extent that they deal in any way with the Tawfiq second report it is submitted, and incorrectly so, that Mr Bowyer the decision maker, to the extent that he relied upon Mr Tawfiq's investigation report, the report was affected by serious flaws and was unreliable.

PN32

The transcript does not reveal any concession by Mr Bowyer with respect to the Tawfiq report. As submitted earlier, the extent of the cross‑examination of Mr Bowyer which was on the first day of the hearing in the afternoon did not go anywhere near the dismissal events, did not go near the Tawfiq report and was exploring the various allegations of misconduct which formed the basis of the first warning. In this respect, your Honour and members of the Bench, the appellant submits that any acceptance of this part of the respondent's submissions - her Honour appears to have done so - constitutes a serious error of fact. We say it falls within the first category of the House v The King principles.

PN33

If I could now turn to subparagraph (a) of ground 2, and his is failure to pay regard to the appellant's submissions and evidence. So it's uncontroversial your Honour and members of the Bench, that a failure to give any real consideration to submission and evidence which is significant and centrally relevant to the decisions being made can constitute jurisdictional error. In this regard, your Honour and members of the Bench, we refer to two decisions that were sent through this morning, the first being Linfox Pty Ltd v Fair Work Commission [2013] FCAFC 157 at 47 and also Solomon v University of Technology Sydney [2012] FCAFC 146 at 55 to 57.

PN34

The Solomon decision is also reported in the industrial reports but I understand that the AustLII version has been sent through to the Commission. With respect to this sub‑ground the appellant submits that her Honour did not give any real consideration to the submissions and evidence of Mr MacLean in relation to the basis upon which the appellant had a proper basis upon which to accept and continue to accept the Tawfiq report and the police report. We note that her Honour in the paragraphs leading up to paragraph 13 of her decision replicated the submissions and summarised some of the evidence.

PN35

The appellant submits that is not a proper exercise of considering submissions and evidence. The findings of her Honour at paragraphs 36 through to 42 at page 28 of volume 1 of the appeal book show no attempt by her Honour to engage in and give proper consideration to the submissions and the evidence of Mr MacLean with respect to the proper basis, and it's submitted that those grounds and reasons - I withdraw that. Those submissions and the evidence of the appellant which needed to be considered because they were central to her consideration were firstly that the two independent sources of information i.e. the Tawfiq second report and the police report were still a proper basis to rely upon and which Mr MacLean gave evidence that he did so.

PN36

Secondly, the submission made by the appellant that no concession was made by the respondent concerning the Tawfiq report in the first two days of hearing - I pause there and I must say the second Tawfiq report. Thirdly, and this Point goes towards a finding by her Honour in relation to the characteristics of Ms Culla, that she was volatile and the like. Now there were submissions made by the respondent - I withdraw that - by the appellant that Mr Tawfiq did know of Culla's emotional volatility and unstableness and that she was the cause of a number of breakdowns. Now that was taken into consideration.

PN37

And finally that the evidence of Ms Campbell disclosed that there were concerns regarding reinstatement, and I pause there and note briefly the respondent's submissions where it seeks to characterise the evidence of Ms Culla that she would be warmly received. That simply was not the case. Now with respect to the first two submissions and pieces of evidence that I've just referred to, these were said to be relevant to the determination to be made by her Honour i.e. the basis upon which it must be reasonable to no longer rely upon the second Tawfiq report and the police report.

PN38

As to the third and fourth submissions and pieces of evidence the appellant submits that these were also central to her Honour's decision making as both were matters to which she made particular findings at paragraphs 37 and 38 of her decision. If I can now turn to subparagraph (c) the evidence of Ms Campbell regarding reinstatement, your Honour and members of the Commission. That's referred to in the outlines of submissions and the appellant submits that that is an error of fact by her Honour in characterising the evidence of Ms Campbell as being favourable to reinstatement, in fact ignoring the evidence the totality of the evidence that Ms Campbell gave regarding concerns that she had about the reinstatement of the respondent. That evidence is found at appeal book volume 2 at pages 474 to 475.

PN39

Turning to ground 3 and this is the procedural fairness ground, this ground goes to her Honour's finding at paragraph 40 of the decision which is in fact firstly that the monetary offers put by the appellant were not reasonable in the circumstances. And secondly that it is to be inferred that the appellant by making a significant second financial offer, that they were obviously of the view that they had significantly diminished prospects for defending the application and/or the order for reinstatement.

PN40

Both of those - firstly if I deal with the first one concerning the characterisation of a purely monetary offer as being unreasonable, your Honour. The appellant was not put on notice of that argument or that that was to be a consideration, and an important consideration as well, by her Honour. It was not afforded any opportunity to address that concern that might have been held by her Honour and the basis of that finding. It was not put within the respondent's submission, it was not addressed in the appellant's submission in reply. Secondly with respect to the increased monetary offer, your Honour and members of the Bench, this was first put by the respondent in its submissions in reply and no opportunity was provided to the appellant to cavil with that submission.

PN41

DEPUTY PRESIDENT GOSTENCNIK: When you say no opportunity was provided, there was nothing to prevent you from filing a rejoinder, was there?

PN42

MR O'SULLIVAN: With respect, the appellant accepts that - - -

PN43

DEPUTY PRESIDENT GOSTENCNIK: I mean it may or may not have been accepted but a method could have been made if you were concerned about it.

PN44

MR O'SULLIVAN: The concern did not arise until we saw the decision, your Honour, and it is accepted by the appellant that that was a course that was open to it with respect to that particular finding of her Honour concerning the increased monetary amount and the inference to be drawn as to the appellant's state of mind, yes. But not with respect to the first, your Honour, as to the unreasonableness of providing purely monetary offers, your Honour. We say that if such an opportunity had been provided then the appellant would have addressed that by way of evidence and further submissions.

PN45

And in any event we note that not all - and it's appropriate to maybe now refer to some of the principles. But those principles of procedural fairness and natural justice are quite conveniently set out in the decision of Tainsh v Toyota Motor Corporation [2018] FWCFB 7565 and generally at paragraphs 44 to 46, and without going through those chapter and verse it's accepted that those principles - so that not all denials of procedural fairness will lead - will ground in an appeal. But when they go to a matter in issue and particularly central to the determination we say that it does, and in this circumstance we say that the denial of procedural fairness is one that means that the decision in that respect constitutes jurisdictional error and falls within generally the second ground of House v The King.

PN46

DEPUTY PRESIDENT GOSTENCNIK: Well, assume all of that's right for a moment.

PN47

MR O'SULLIVAN: Yes.

PN48

DEPUTY PRESIDENT GOSTENCNIK: And assume your client is given permission to appeal, we're dealing with an appeal by way of a re-hearing so what do you say about the matter? Because any issue about procedural fairness might be cured now.

PN49

MR O'SULLIVAN: Yes, your Honour, and those are dealt with in grounds 4 and 5 as to why we say - the submissions that would have perhaps been put. And so ground 4, your Honour, if I can go to that?

PN50

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN51

MR O'SULLIVAN: This is the ground which deals with what the appellant submits is a serious error of fact and this is dealing with her finding that the appellant had a subjective view that the prospects for defending the case were diminished and quite clearly considerably so. So that's dealing with the second of the two within paragraph 40. Your Honour, the appellant submits that doing so, her Honour drew an inference based on the size of the appellant's second offer such an inference - and the inference that was drawn was with regard to the subjective knowledge of the appellant as at the time of the making of the offer, the second offer, the increased offer as at the time of the offer.

PN52

Now we set out in the outlines of written submissions the principles with respect to the drawing of an inference are well settled and there's a reference to the MUA case and that specific reference is provided there. Your Honour and members of the Bench, an inference is not able to be drawn in the face of direct evidence with respect to a particular matter. This is not a credit finding that her Honour has made. This is a drawing of an inference based on the size of an offer as to the state of mind of Mr MacLean, being the deciding person for the appellant.

PN53

The evidence of Mr MacLean - and the submissions are quite clear in that Mr MacLean still thought at the time that he had a reasonable basis for concluding the appellant had reasonable prospects for success. I understand the respondent's point that in determining reasonableness for the purposes of section 400A to be determined objectively. However it is her Honour who makes the finding as to the subjective mind of the appellant at that point and so on, and furthermore, your Honour and members of the Bench, clear evidence that a party to an unfair dismissal proceeding knew that they had limited prospects for success is highly relevant to the consideration to be undertaken for the purposes of section 400A. Such an inference should not be made, and it was central to her Honour's decision. Turning to ground - - -

PN54

DEPUTY PRESIDENT GOSTENCNIK: As I apprehend - - -

PN55

MR O'SULLIVAN: Yes.

PN56

DEPUTY PRESIDENT GOSTENCNIK: As I apprehend the issue of inferences, for my own part I prefer the - and I think it's referred to in the MUA decision but I prefer the formulation adopted by the High Court in Bradshaw, and that is that an inference is only available where there are not other equally logical inferences available from the same facts. It seems to me at least on the face of the offer that another equally logical inference that might be drawn from the nature of the offer that the respondent made was that it wanted to make its offer sufficiently high to encourage the appellant - sorry, the respondent to set aside her claim for reinstatement in the face of a higher monetary amount. Another equally - - -

PN57

MR O'SULLIVAN: Well, that's another equally available inference that could be drawn. But the other inference - - -

PN58

DEPUTY PRESIDENT GOSTENCNIK: And if that's so - - -

PN59

MR O'SULLIVAN: Sorry.

PN60

DEPUTY PRESIDENT GOSTENCNIK: Then the inference that the Deputy President drew seems to me was not a permissible one.

PN61

MR O'SULLIVAN: Yes, that's correct. Another inference which is actually clearly available on the evidence is that Mr MacLean had instructed the Catholic Commission for Employment Relations to make a commercial offer. That was the basis of which he gives direct evidence, a commercial offer in the form of the second offer, and such a commercial offer, your Honour, is quite commonly made by respondents to unfair dismissal applications and it is a reasonable basis to put an offer, bearing in mind that there's only been two days of hearing.

PN62

There was still a substantial amount of witnesses to be cross-examined plus written submissions, travel costs and the like. We say in the circumstances in addition to that advanced by yourself, your Honour, we also submit that that's another not only inference but it's clearly available on the face of the evidence.

PN63

DEPUTY PRESIDENT GOSTENCNIK: But ultimately, let's assume all of that's right.

PN64

MR O'SULLIVAN: Yes.

PN65

DEPUTY PRESIDENT GOSTENCNIK: As I read the Deputy President's decision the fundamental basis upon which she concluded that costs should be awarded was the rejection of the respondent's offer, not the subsequent offer made by the appellant - sorry, the respondent - sorry, the subsequent offer made by the appellant that was the unreasonable act. That is, the rejection of the offer.

PN66

MR O'SULLIVAN: Yes.

PN67

DEPUTY PRESIDENT GOSTENCNIK: Armed with the knowledge about the prospect of its case after day 2 in the face of the respondent's strong and unyielding preference for reinstatement.

PN68

MR O'SULLIVAN: Yes, your Honour.

PN69

DEPUTY PRESIDENT GOSTENCNIK: So even if the inference was impermissible - let's assume that for a moment - you're still left with the difficulty of the first proposition.

PN70

MR O'SULLIVAN: Yes.

PN71

DEPUTY PRESIDENT GOSTENCNIK: Which is the rejection of the respondent's offer as being the act.

PN72

MR O'SULLIVAN: Yes, your Honour, but in terms of reaching her decision, your Honour, and particularly by application of the various principles one is to take into account all of the circumstances in the matter. And the making of the offer by the appellant, the second offer, was a response to and an explanation for the rejection of the respondent's second offer, your Honour.

PN73

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand how that's put.

PN74

MR O'SULLIVAN: Yes.

PN75

DEPUTY PRESIDENT GOSTENCNIK: But again reading the decision as a whole, and paragraph 40 seems to me to buttress her conclusion. But ultimately the conclusion is concerned with the rejection of the second offer by reference to the Deputy President's views as to the known state of affairs of the appellant at the time it rejected the second offer.

PN76

MR O'SULLIVAN: That's one formulation available on the face of the decision, your Honour. The difficulty with the decision is that there is a paucity of reasoning, with respect and no criticism to her Honour. But there's a paucity of reasoning and the appellant is left with those specific findings that are made out - found at paragraphs 36 to 42. If I can turn now to ground 5 perhaps the same criticism, your Honour, or the same comment may fall with respect to ground 5 as it did to ground 4. This is in the first part of paragraph 40 and it goes back to - I'll withdraw that.

PN77

This is where her Honour determines that it was no reasonable for the appellant to make effectively purely financial offers. Now this finding, your Honour and members of the Bench, this is founded on the basis that the appellant on an objective view should have known that the financial offers would not have been accepted. The appellant submits that there is no basis upon which on an objective view that it would have believed that a financial offer would not be accepted. The evidence before the Deputy President did not disclose that the respondent had informed the appellant that she would not accept a financial offer.

PN78

Furthermore, your Honour, it is usual that respondents put offers in terms of financial settlements only, not that the appellant did so in the absence of any clear indication that it would not be accepted, and was not unreasonable. It would also follow that if the appellant had formed the view or on an objective basis would have understood that a financial offer would not have been accepted it would not have put it. In this respect, your Honour and members of the Bench, the Deputy President's finding falls within the second category of House v The King in that it's just unreasonable or plainly unjust.

PN79

If I go to ground 6 this is the workplace health and safety issue, your Honour and members of the Bench. The appellant relies on the written submissions. It deals quite clearly with this ground of appeal and in short this is effectively a duty, not only the duty under the workplace health and safety legislation in New South Wales and many other states under the uniform legislation and also under common law, is that that duty is not only held to a particular individual but all other employees and persons who come within - I'm just trying to remember the term - within the workplace.

PN80

And her Honour's finding misplaces or - I'll withdraw that - is erroneous in reaching the conclusion that that duty only fell in relation to Ms Culla, and in that respect the respondent makes some submissions with respect to this particular point at ground 6, and that the ultimate finding should be viewed upon and that that formed some basis as to why the respondent - the appellant, I should say, could not have held a reasonable basis for having a concern as to workplace health and safety.

PN81

The applicant has misconstrued the principles with respect to section 400A in the appellant's submissions because the time for the determining of reasonableness or otherwise was at the time of the making of the offers and not subsequently. So in conclusion, your Honour and members of the Bench, the appellant submits that it's in the public interest for leave to be given to appeal. The decision is counterintuitive insomuch as the Deputy President found that the second Tawfiq report and the police report - there was reasonable prospects prior to the hearing but there was not following the first two days of hearing, in circumstances where there was no reasonable basis for reaching such a conclusion.

PN82

Secondly, there is serious errors of fact in relation to the apparent finding that there were concessions made by Mr Bowyer, the decision maker, with respect to the second report. It constitutes an injustice in relation to the procedural fairness grounds and the appellant submits that the decision should be quashed and that the application for costs either be dismissed or alternatively remitted to another member of the Commission for re-determination. Unless there's any questions.

PN83

DEPUTY PRESIDENT GOSTENCNIK: Mr O'Sullivan.

PN84

MR O'SULLIVAN: Yes?

PN85

DEPUTY PRESIDENT GOSTENCNIK: Assuming we were with you on the question of permission and the appeal, and if we were to re-determine the matter we would re-determine the matter on the basis of the material that we have in the appeal book, at least so much of it as it relates to the costs application. There's nothing more that we need is there?

PN86

MR O'SULLIVAN: No, your Honour, except a point of clarification that in reconsidering, that these oral submissions and my outlines of submissions will be taken into account and in particular with regard to the - - -

PN87

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand that. Yes.

PN88

MR O'SULLIVAN: Yes.

PN89

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN90

MR O'SULLIVAN: Yes, your Honour.

PN91

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, Mr O'Sullivan.

PN92

MR O'SULLIVAN: If it please the Commission.

PN93

DEPUTY PRESIDENT GOSTENCNIK: Mr Aleksov?

PN94

MR ALEKSOV: The first matter to address is the public interest in allowing an appeal - I beg your pardon, allowing permission to appeal. It is in our respectful submission not correct to say that this case involves an in general principles. It concerns a unique set of circumstances which arose during the course of a hotly contested trial in which the respondent prevailed and the reasonableness or otherwise of the judgment about that turns entirely upon those facts.

PN95

Whether or not this case would have any impact upon other respondents to unfair dismissal actions and their approach to commercial settlements or settlements in any way is highly dubious because no respondent properly advised would treat the case as resolving anything more than what it decided, which was in these particular facts that course of conduct was not reasonable, and I submit that that's a sufficient basis on which to refuse permission to appeal on its own. There's also I suppose the additional consideration in relation to the public interest which is that - - -

PN96

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Aleksov, just excuse me.

PN97

Mr O'Sullivan, are you able to hear all of this?

PN98

MR O'SULLIVAN: Yes I am, your Honour.

PN99

DEPUTY PRESIDENT GOSTENCNIK: All right. I think the transcript reporters are asking you to speak up, Mr Aleksov. Perhaps that microphone on your left, move it closer? That's it. Perfect.

PN100

MR ALEKSOV: I'll double up. The second consideration is that this is a costs dispute which concerns a discretion vested in the primary officer of this tribunal who had the benefit of seeing the witnesses, hearing the parties, being familiar with the cut and fray of the litigation. Promulgation of disputes about costs should not be encouraged and that is an overlaying factor to the reason why there is not a public interest in granting permission to appeal. And with those points in mind I propose to take the Bench through the decision, the costs decision that is supposedly - well, that is under challenge and it's important to notice starting from page 1 that there's a reasonable summary of the background and a completely accurate recitation of the relevant legislation.

PN101

The background is not challenged by the applicant, and then there's a very extensive and detailed recitation of the evidence and submissions made by the parties on the question of costs. It is not slab quotes from what things have been said which indicates - does not indicate whether or not those quotes were read. It is summaries which shows that her Honour must have read everything carefully, thought about what was being said and formulated in her own mind an idea that was different than the way in which the parties were actually putting. When I say different than, it summarised what's going on.

PN102

That is the absolute demonstration of active intellectual consideration which is required in the relevant context and it is - if I can put it this way. It is the analogue of active listening when reduced to writing. In relation to our case I don't see - a submission was made by us that there was a concession made by the decision maker but I don't see that that submission was actually accepted by her Honour. I just don't read it in the primary decision or in the current decision. I say that to refute one of the submissions made by Mr O'Sullivan. I think he puts it as a point of inference, and I'll come to that in a moment.

PN103

The point that becomes quite important in this dispute - and I'm sure the Bench has read this already. The point that becomes quite important for this appeal commences at paragraph 19 which concerns the statements of Mr MacLean and Ms Bhattacharya and there is very clear detailed summaries of the evidence of these people, and the point of focus put against us about in relation to the second offer can be seen squarely addressed at paragraph 22(d). And then at 23 there is the discussion of Mr MacLean's opinion about the issue of the CSO acting unreasonably, following through to 26.

PN104

In our respectful submission it is untenable to advance the proposition to this Bench that her Honour didn't consider that. She did not agree with what Mr MacLean had to say or his opinions but that's a different matter. Then there's further discussion, importantly the submissions that were made by the CSO commencing at paragraph 29. And on pages 11 through 13 especially the third to last dot point on page 11 through to the end of page 13, her Honour is dealing with the sort of legal argument, if you will, and one point I just wish to draw to the Bench's attention is that on page 12 the fourth to last point finishes a discussion of what was one of Ms Roche's arguments, which was that the unreasonable acts were the refusal of the offers.

PN105

The third to last dot point then commences a different discussion which concerned a slightly different basis on which costs were claimed or could have been claimed which, one, was the basis is the unreasonable act being the refusal of the offer whatever any counteroffer might be. Another basis is the conduct of the CSO in his approach to the negotiations, not seriously discussing the issue of reinstatement. They were two separate bases on which costs might have flowed and different dates might have been identified for the basis of any costs order.

PN106

Ultimately, what her Honour accepted was - and this is in paragraph 40 and it was put to Mr O'Sullivan that it was the refusal of the second offer that constituted the unreasonable act and the time from which costs would be calculated was the date of the expiry of that offer. It follows that her Honour's discussions - - -

PN107

DEPUTY PRESIDENT GOSTENCNIK: Which was what, seven days after 3 April?

PN108

MR ALEKSOV: Yes. I think the quantification of those costs still remains to be done - - -

PN109

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN110

MR ALEKSOV: But we don't need to go into that. The issue about the inference that might have been drawn by - seems to have been drawn by her Honour about the CSO being aware of the weakness of its position, does not affect her Honour's judgement objectively. But in the circumstances of that trial, based on the evidence that had been adduced to that point and the evidence that was to be adduced together with the nature of the opening that Ms Roche had put as well a within the legal context which included matters relevant to demeanour and credit, and especially of Ms Culler, her Honour formed the view that it was no longer reasonable to oppose reinstatement because it was a downhill trend from that point.

PN111

DEPUTY PRESIDENT GOSTENCNIK: Well, how is such a conclusion open at the conclusion of the second day of the hearing where the employer has not had the opportunity to put evidence on about the practicality of reinstatement? And that by the second day, there would be insufficient information before the Deputy President for her to conclude whether reinstatement was practical, or appropriate. Ultimately, putting aside the merits, how is it justifiable to conclude that a rejection of an offer for reinstatement was unreasonable in those circumstances?

PN112

MR ALEKSOV: If I might put this at the start of the very start of that proposition, the first is that her Honour correctly recognised that reinstatement is the primary remedy. It is not the default remedy, but the onus was upon CSO to adduce evidence to her Honour to explain why reinstatement would not be appropriate.

PN113

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN114

MR ALEKSOV: All of the matters which the CSO relied upon to show that reinstatement would not be appropriate, turned on the supposed poor behaviour of the application for reinstatement. All of those matters had been knocked out of the premise. By the time that Ms Campbell concluded giving evidence, it was unquestionably clear that the person who was responsible for the unhappy state of affairs at that school, was Ms Campbell, and she was no longer there. That the seriousness with which the CSO viewed Ms Roche's conduct was no longer tenable.

PN115

It was all of decision-makers that gave evidence, so Mr Balyer and the HR representative Ms Price, et cetera. They were not primary witnesses. They were people who had been relying on other evidence. Ms Campbell was the principal of the school. She did not - she was not called by the CSO, which clearly justifies Jones v Dunkel type of reasoning, that they knew from the very beginning her evidence was not going to be helpful. She arrives under summons from us; she's questioned and she makes it abundantly clear - - -

PN116

DEPUTY PRESIDENT GOSTENCNIK: Jones v Dunkel inference isn't available in circumstances where - - -

PN117

MR ALEKSOV: I'm not saying it's a Jones v Dunkel inference; I'm saying - - -

PN118

DEPUTY PRESIDENT GOSTENCNIK: No, I understand the point you're making.

PN119

MR ALEKSOV: I'm saying that the fact is that's the way the case ran.

PN120

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN121

MR ALEKSOV: Dean DP heard her give evidence about all of the issues relevant to supposed misconduct by Ms Roche. Having heard all of that, it was correct for her Honour to think it was untenable for the CSO to maintain a position that Ms Roche had engaged in any kind of conduct remotely close to the level of justifying dismissal, having regard to the important contextual feature that the counter-party to the dispute was herself, acting dramatically unreasonably.

PN122

With that in mind, accepting that the premise of the CSO's case was this person has a long history of poor conduct, had been washed away - - -

PN123

DEPUTY PRESIDENT MASSON: Is that true? I mean the evidence hadn't yet been heard by Ms Delaney and Ms Price.

PN124

MR ALEKSOV: Correct. They are HR officers who had very little evidence to give that was direct. The dominant - - -

PN125

DEPUTY PRESIDENT MASSON: They're direct in relation to the incident that led to the termination.

PN126

MR ALEKSOV: And in relation to the environment at the school.

PN127

DEPUTY PRESIDENT MASSON: Had they not been - had a significant involvement in dealing with issues over some years involving Ms Roche and Ms Campbell and other staff?

PN128

MR ALEKSOV: Yes, I accept that and I don't say they had no direct evidence. Ms Price especially, had a significant degree of involvement with Ms Roche in terms of managing matters. But in terms of the environment of the school, there were two witnesses of critical importance in this case. One was Ms Roche. Of course, her evidence ended up being accepted. She had been cross-examined by that stage. Nothing in cross-examination pushed her backwards.

PN129

The second witness who was probably the most critical witness, both for the question of unfairness and for the question of reinstatement was Ms Campbell, the principal of the school who was the boss of both women. I use that loosely. She had given her evidence - the CSO were subject to a proper inference that they knew that she was going to give evidence in general terms that was going to be helpful to Ms Roche.

PN130

At the end of that state of affairs, Dean DP clearly understood, as did I, I must say, that there was only one way this case could go, which was that the CSO had completely misconceived the nature of Ms Roche's allegations by fundamentally failing to grapple with the fact that the counter-party to all the disputes between - involving her, was the dominant party of blame.

PN131

That was an evidentiary question; it did involve questions of credit because, although Ms Roche's credit in terms of her attempting to give truthful evidence wasn't challenged, her credit as a reliable witness was. This is a person who engages in misconduct, who behaves in passive-aggressive ways, whose body language does X, Y and Z. That was challenged in cross-examination, and it failed. Ms Campbell came along and supported that.

PN132

Now, the remaining witnesses, one was Mr Tawfiq who did not - - -

PN133

DEPUTY PRESIDENT MASSON: No, no but I'm interested at that point where the evidence had been heard which was critical in the decision that the Deputy President made.

PN134

MR ALEKSOV: I have to accept that at that point, there was additional evidence to be given which was to be led by the respondent. I have to accept that, but I do say that when one bears in mind what that evidence was, it does not undermine Dean DP's observations that the most relevant evidence had already been given.

PN135

DEPUTY PRESIDENT MASSON: Are you say that that might be seen in hindsight, or at that point?

PN136

MR ALEKSOV: It had to be seen at that point because the relevant evidence was the remainder of Mr Balyer's cross-examination which the bulk of it had already been completed, was Ms Price. I accept she had some evidence to give about her personal interactions with Ms Roche dealing with the management of these issues. But she had no direct evidence in relation to the substantive issues. And there was Mr Tawfiq whose evidence really, was in writing, in the reports. The foundation for why those reports were not reliable had already been laid in cross-examination with Mr Balyer because the reports - - -

PN137

DEPUTY PRESIDENT MASSON: Sorry, no you say report, but my reading of the transcript, whilst it was the first topic that was the subject of the cross-examination in day one and it went to, as I recall the transcript, a series of propositions being put to Mr Balyer in relation to the factual basis of the allegations that founded the 2015 warning.

PN138

MR ALEKSOV: Yes. That's right. Having - but is it fair to say that that cross-examination revealed that that report, the veracity - beg your pardon. The validity of that report had been obliterated. The fact of a report is neither here nor there. The point is that in Mr Balyer's mind those considerations were said to be partially operative, but unclear. The decision-maker himself gave evidence which was not strong.

PN139

COMMISSIONER MCKINNON: In fairness to that witness, he gave evidence in answer to a series of hypotheticals, not actual questions

PN140

MR O'SULLIVAN: Your Honour, I had to interlude, but we can't hear - apologise Commissioner.

PN141

COMMISSIONER MCKINNON: My comment was that the evidence of Mr Balyer that is said to have been obliterative of the first report - - -

PN142

MR ALEKSOV: I'm sorry, I should clarify. I do not say that Mr Balyer's evidence was obliterated, I say that the usefulness of the Tawfiq report had been obliterated.

PN143

COMMISSIONER MCKINNON: Well, assuming that the evidence given by Mr Balyer had that effect. But the evidence of Mr Bogar was in response to a series of hypotheticals.

PN144

MR ALEKSOV: I mean that's true, but the hypotheticals were used to establish weaknesses in reliance upon the Tawfiq report.

PN145

COMMISSIONER MCKINNON: Yes, but you would still then have needed to establish those hypotheticals as fact.

PN146

MR ALEKSOV: The truth of them, yes. I accept that. I accept that. It remains the case though, that Mr Balyer again - he had no direct knowledge of these matters. It was here is the decision-maker reading materials on the papers and being presented with information. It is fair to say that at that time, and with the benefit of hindsight, the two dominant witnesses were Ms Roche herself who withstood cross-examination. That was an important feature of the case. That had happened by then.

PN147

The second critical witness was Ms Campbell, who came along and said, actually there really isn't going to be much of an issue about this. The point that Mr MacLean makes about well, Ms Campbell was perhaps not telling me exactly the same things prior to then; that's not the point. The point is that Dean DP heard that evidence, and it was sworn evidence. So, once Mr MacLean heard that, he really didn't have much leeway to continue in thinking that this was reasonable or unreasonable; there's really only one way to go.

PN148

But the CSO's conduct ends up not being the basis - beg your pardon. The CSO's conduct in making subsequent offers, ends up not being the basis on which the Deputy President decides the case. It was simply the flat-out refusal to accept the second offer. Which is really, in substance, a finding that her Honour thought from that point, it should have been apparent to the CSO acting reasonably that they were going to lose and it was going to lead to reinstatement.

PN149

COMMISSIONER MCKINNON: Doesn't that suggest that the Deputy President might have already formed a view on the second day of hearing as to remedy?

PN150

MR ALEKSOV: It is cases of - so that's question of bias really. These cases routinely hold that a decision-maker has to keep an open mind, but not an empty mind. her Honour clearly kept an open mind and maintained the appearance of doing so throughout the case. The fact that her Honour had heard witnesses and formed impressions about the strength or weaknesses of those witness' evidence does not even come close to engaging considerations of that kind.

PN151

What it does do, is indicate that her Honour was a conscientious decision-maker listening to the evidence at that time, having heard the two critical witnesses in the case, which was known throughout. The two critical witnesses had concluded their evidence and she thought look, this case is pretty clear.

PN152

DEPUTY PRESIDENT GOSTENCNIK: Again, and perhaps - and I mean no criticism of the Deputy President and the way she conducted the proceedings, but my own practice when dealing with unfair dismissal matters is to deal with the question of whether the dismissal was unfair first, make factual findings so that parties can then make submissions about the appropriateness of any particular remedy having regard to the findings that I've made.

PN153

In this case, as at day two, just strikes me that in order for there to be a conclusion that the rejection of the offer was unreasonable, an element of that must be that the employer could not have led a new - it couldn't lead from that point on, any evidence probative of the question of reinstatement and it's appropriateness.

PN154

Because if it could, how it can be concluded that the rejection which was effectively a rejection of an offer for reinstatement was unreasonable? Putting aside the merits of the case - - -

PN155

MR ALEKSOV: I understand the question. I want to tackle it at a few levels.

PN156

DEPUTY PRESIDENT GOSTENCNIK: Sure.

PN157

MR ALEKSOV: The first level is, I accept that as a common practice, and a very efficient practice in these sorts of cases, this particular case actually involved tremendous - the issues of liability and the issues of remedy dramatically overlapped in this case, because the question was, could - was Ms Roche's conduct in historical terms sufficiently serious to justify dismissal. If so, well the same question was - sorry, if not, the same factual matters arose relevant to the question of reinstatement. Is this a person who can be trusted to behave herself within permissible bounds?

PN158

The case was run - although of course legally distinct steps, in factual terms, was run with overlap. So, everyone was examined and cross-examined in all issues relevant to liability and remedy at one go. It was not contemplated - - -

PN159

DEPUTY PRESIDENT GOSTENCNIK: But not as at the conclusion of day two.

PN160

MR ALEKSOV: But the witnesses whose evidence had concluded by day two, and to the extent of Mr Balyer as well, was on those issues. Of course, Mr Balyer couldn't give any further useful evidence in relation to reinstatement because he had ceased to be in his position. The dominant witness, probably the overwhelmingly dominant witness on the question of reinstatement from the CSO's perspective, had to be the principal of the school. She had concluded her evidence by then. That's the basis on which it was legitimate to say, not accepting this offer was unreasonable.

PN161

Now, there is - I mean I should just make these submissions, but there is a legitimate degree to which the evidence of the principal of school could fairly have been said to be overwhelmingly preferable to any evidence that any other person might give in the office. The remainder of the witnesses was Mr Tawfiq who conducted investigations, Ms Price, who was the HR Coordinator, and there was one other HR operative who gave evidence.

PN162

Those three people need to be weighed against the withstanding cross-examination by Ms Roche, the relevant examination of Mr Balyer on these issues having finished and then the evidence of the principal who would be the person in charge of implementing reinstatement. All of that had concluded. I accept that one might look at that and say, hmm, that does seem to be quite an extraordinary situation where one could say at that point, it was obvious which way this case was going, but this was it. This was the case.

PN163

The evidence about how serious the conduct of Ms Culler was, had come out by that stage through Ms Campbell. There was no one who challenged her credibility. It just became abundantly obvious that the CSO had completely misconceived the way in which these two women had operated and that Ms Roche had done nothing but try to - and there was a couple of little issues along the way, but she had really just behaved herself, as you would expect any employee to do in these incredibly trying circumstances. The real problem was that Ms Culler was tolerated for so long. It was unreasonable to have expected her to do so. All of that had concluded by day two.

PN164

COMMISSIONER MCKINNON: Had the New South Wales police report been challenged?

PN165

MR ALEKSOV: Yes, it had. Because the issues to which it went, was an allegation against Ms Roche. New South Wales police didn't push the matter further. The point was that the same factual issues to which those allegations went had been examined. I accept there were additional witnesses to speak about those issues, but the probative value of their evidence, compared with the probative value of Ms Campbell's evidence, long-time employee of the school and recent principal, that had settled by that stage.

PN166

Any it was really just a question of competing submissions and both parties were - well the CSO was ably represented and Ms Roche had been.

PN167

COMMISSIONER MCKINNON: Well, Ms Campbell gave evidence both for and against reinstatement, didn't she?

PN168

MR ALEKSOV: When challenged on how reinstatement would be implemented, it was entirely clear, in my respectful submission that it would be implemented just fine. Now, it's not as though I accept that Ms Campbell wasn't rushing to say that - I'll withdraw that. Ms Campbell was not a willing participant in the case. So, she expressed her views in an appropriately moderate form. That's I think the best way to put the extent to which she was non-supportive of reinstatement.

PN169

Overall though, she really was supportive of reinstatement. Personally, she might have had issues with it, but when questioned about could it be implemented, she gave pretty clear evidence to say, of course it could. And of course, there was the key fact that Dean DP by that stage had observed, being that the blame for nearly everything was Ms Culler and she was gone and wasn't coming back.

PN170

COMMISSIONER MCKINNON: Yes, and then in concluding of course was that Ms Culler wasn't a witness, so had no opportunity to defend herself.

PN171

MR ALEKSOV: Correct, but the burden of that weighs that Mr O'Sullivan said that. Beyond that, I just want to raise a couple of other matters to make sure I've got it all.

PN172

There's an attack - just returning to the submissions and grounds as put against me, there's an attack made on paragraph 36 about the appreciation that the CSO had significant risks in the matter and that apparently her Honour didn't make findings by reference to the correct test. I think that just falls away when full regard is had to that paragraph because her Honour clearly directs her attention to the unreasonable act being the refusal of the second offer.

PN173

her Honour in passing and probably in deference to the fact that considerable submissions were made about other bases on which there might be findings of unreasonable conduct, passes over that in her reasons. I accept that and I accept that perhaps those are slightly more difficult reasons to defend, but the basis on which this decision is made - it's quite enough a neat skeleton. You refuse the second offer and in context, that was unreasonable.

PN174

Even if Your Honours grant permission to appeal - sorry.

PN175

DEPUTY PRESIDENT GOSTENCNIK: Can I just ask you this. Is it sufficient to conclude objectively that the rejection of the second offer was unreasonable on the basis that it should have been clear to the appellant that its prospects of success were obviously and significantly diminished? That is, let's assume that on the state of the material after day two, that was a finding open to the Deputy President that the prospects of success were obviously and significantly diminished. Not obliterated, not no reasonable prospects; but simply diminished.

PN176

Faced with that finding, is it open for a member to conclude that the rejection as unreasonable?

PN177

MR ALEKSOV: Let me tackle that slowly. If it could be said that the prospects were obliterated or there was no reasonable prospect of success, the discretion to avoid costs is engaged, yes?

PN178

DEPUTY PRESIDENT GOSTENCNIK: Probably under 611 as well.

PN179

MR ALEKSOV: Yes, it's plain. Where you are in the territory of diminished or significantly diminished, attention focusses on questions of degree. It must be the case that there would be situations where perhaps it couldn't be said there was no reasonable prospect, but prospects were so low that it is unreasonable just the same. A slightly different degree of unreasonableness.

PN180

It's obviously unreasonable if your prospects are nil in continuing the case; that's obviously so.

PN181

There are additional gradients above that where defending the case is unreasonable. So, giving attention to those matters of degree, in my respectful submission, and including because - and I need to stress this a lot - including because her Honour had the benefit of seeing the witnesses and bearing in mind that credibility cuts two ways. It can be negative, but it can also be positive. It's obvious that the evidence of Ms Campbell was highly persuasive to her Honour.

PN182

Having the benefit of that, her Honour thought that even if the prospects were not nil, literally, they were so low that a responsible organisation assisted by capable lawyers should have known, and it was unreasonable for it not to accept reinstatement. So the answer to Your Honour's question, long-winded in that sense, is yes. But it depends on just where in that spectrum or degree the prospects sit. In my respectful submission, her Honour correctly appreciated that they were just about nil and so severely diminished that it was unreasonable to continue.

PN183

Relevant to that, it is correct for her Honour to have inferred that Ms Roche was only concerned with reinstatement and that the CSO could fairly have been expected to perceive that. She had rejected previous financial offers; her offers were exclusively reinstatement-based. Her income was very small. I think it was in the thirty odd thousand per year and the costs of the case ended up running up to more than a year's income.

PN184

Evidence given by Mr Roche at the time was that this isn't just a job, this is the centre of her community life and the CSO knew all of that. So, we're not just talking about the ability to source income.

PN185

DEPUTY PRESIDENT GOSTENCNIK: I understand that submission. But, the question of rejection has to be viewed in the context of a counter-offer as well. Certainly, in my experience, although the particular monetary offer was rejected, it's not to say that a monetary offer of the right amount would have been.

PN186

MR ALEKSOV: I have to accept that, because of course it's questions of degree. If it was an eight-figure offer - - -

PN187

DEPUTY PRESIDENT GOSTENCNIK: Yes. Here's a million dollars is a different matter to fifty odd thousand.

PN188

MR ALEKSOV: I accept that. I accept that. But I think we have to confine ourselves to the realistic situation, the reasonableness of the context. This whole case, it was obvious - including from when - because remember Ms Roche had given evidence Your Honours by that time and it was unambiguously clear from her evidence that this was not a financial decision. It was a poor financial decision. This was a lifestyle social decision.

PN189

If there ever is a case about the non-financial considerations relevant to employment, this was it. That was striking. The CSO knew all of that too. So, it was abundantly clear why reinstatement was the game. My financial offers, even remarkably large I must say, were not going to cut it.

PN190

I do wish to address your Honour's on the technicalities of what's on the appeal. So, I'm going to presume that permission to appeal is given, and say it's still a costs discretion. So, if your Honours are satisfied there was no open basis to say that there was an unreasonable act, then we would lose the appeal and your Honours would have the discretion to re-exercise and it would have to go against us and to say no order as to costs.

PN191

But if your Honours can't be satisfied of that, then there is no real attack to the discretion. So, the only focus of the applicant's case which might succeed, is to say it was not open to her Honour to say it was unreasonable. That needs to be, in my respectful submission, the basis of disposition of any appeal. To say that it wasn't open to her Honour to say so, would need to overcome the benefit of her Honour having seen and heard the witnesses themselves.

PN192

That is a massive benefit and I think I've said this already, but the impact of Ms Campbell who turned up at trial and didn't know what her evidence was going to be, nor did the Deputy President, the CSO must have had a reasonable idea about what it might have been. The impact of that evidence cannot be understated. I can say that to your Honours having been there, it was dramatic. The kind of evidence she gave about especially Ms Culler and her degree of culpability in these scenarios was of tremendous impact. That must have been what persuaded the Deputy President to identify that this was unreasonable.

PN193

Now, her Honour hasn't exactly structured it on that basis, but to say that it's not open, given - and your Honours have read the transcript of how this went. To say that that was not open, is a very hard bar for my learned friend.

PN194

The complaint about a procedural unfairness in my respectful submission, goes to this point that her Honour passed over in her reasons, or gave some attention to in her reasons about the CSO's conduct. But it's not the dispositive basis of the decision. So, even if the complaint had any merit, it couldn't be a basis for allowing the appeal. But in any event, it's pretty difficult to see how a procedural unfairness complaint has any merit of this kind.

PN195

The CSO is represented by lawyers; her Honour was receptive to significant procedural indulgences. The fact that they didn't choose to do anything more about it, is a burden that falls at their feet and it can't be complained about now.

PN196

The final point is ground six about the application of the duties. Her Honour just rejected that at the level of premise. Her Honour found that there were no such duties because Ms Roche was not responsible for these matters and none of that is challenged in an appeal from that decision and so really, it just has to be taken as read for the purposes of the cost's decision.

PN197

I'll just make sure I've covered everything. Yes, I have. Unless your Honours have any other questions.

PN198

DEPUTY PRESIDENT GOSTENCNIK: No, thank you, Mr Aleksov. Anything in reply, Mr O'Sullivan?

PN199

MR O'SULLIVAN: Very, very briefly, your Honour and members of the Bench. Just a correct of some perceptions of the start of the evidence following the first two days and in particular, the status of the evidence of Ms Campbell. Ms Campbell, your Honour and members of the Bench was not a witness to the altercation in any way, shape or form. Secondly, Ms Campbell was not part of the decision-making process with respect to the dismissal itself. She was not a key witness. The appellant - - -

PN200

DEPUTY PRESIDENT GOSTENCNIK: But on any view, she was material to the question of reinstatement, surely?

PN201

MR O'SULLIVAN: Well, it is to a certain extent, your Honour and to the extent that she did - - -

PN202

DEPUTY PRESIDENT GOSTENCNIK: Well, she's the principal.

PN203

MR O'SULLIVAN: Indeed, yes. Indeed, she is.

PN204

DEPUTY PRESIDENT GOSTENCNIK: And her views would carry significant weight.

PN205

MR O'SULLIVAN: Indeed, your Honour. Flowing from that, the appellant submits there's a mischaracterisation of the evidence that Ms Campbell gave on the second day of hearing. I've touched upon those in my grounds and that is that Ms Campbell did give evidence that was contrary or which would weigh against reinstatement. Now my friend has put that she accepted that she would have no problems reinstating or if memory serves me correct, the transcript is incomplete - there's a number of inaudible parts; I've been trying to put my finger on that particular part.

PN206

But her Honour, in my recollection put to Ms Campbell concerns by other members of staff who were still employed at the school with respect to the reinstatement, concerns regarding the respondent's behaviour since the dismissal. There was a series of questions regarding - dealing with restorative practice and how that would go about in terms of complying with an order. Ultimately, your Honour and members of the Bench, what Ms Campbell did agree to was that if there was an order to reinstate that she would put it in place.

PN207

That's not as high as my friend's submission that the evidence of Ms Campbell could be taken as being glowingly in approval and acceptance of Ms Roche back within the workforce. Furthermore, your Honour and members of the Bench, as rightly pointed out there was further evidence to be given by Ms Price and Ms Delaney with respect to difficulties with reinstating the respondent in these proceedings.

PN208

They touch on a long history of interaction, not only with Ms Campbell - I'll withdraw that. It wasn't with regards to Ms Campbell. There was difficulties with respect to a previous principal whose name escapes me at this point in time. A Mr Adam Jones - I'm thankful to Mr Cooper for that. That was evidence that was yet to be tested. That did not come up in the cross-examination of Mr Balyer, and furthermore, the cross-examination of Mr Balyer at the conclusion of the first day and obviously the second day, simply dealt with as the learned Commissioner rightly pointed out, simply dealt with the putting of various hypotheticals concerning the letter of misconduct.

PN209

I think those are the matters that needed to be clarified and rectified your Honour. I have nothing further to add.

PN210

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Mr O'Sullivan. We propose to reserve our decision and will publish our decision in due course. We thank both counsel for their helpful submissions this morning and in writing.

PN211

We'll adjourn.

ADJOURNED INDEFINITELY [11.34 AM]

Fair Work Commission Transcripts

C2019/3079, Transcript of Proceedings [2019] FWCTrans 169 (26 June 2019)