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C2018/4170, Transcript of Proceedings [2019] FWCTrans 59 (13 March 2019)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

s.604 - Appeal of decisions

Jeremy Snyder

 and

Helena College Council, Inc.

(C2018/4170)

Melbourne

2.01 PM, THURSDAY, 1 NOVEMBER 2018

PN1

DEPUTY PRESIDENT CLANCY: Good afternoon, could I take appearances, please?

PN2

MR M JENSEN: If it please the Commission, my name is Jensen, initial M. I seek leave to represent the respondent in this matter. I would be only representing with regards to the question on 725 section which has been raised by the full bench in the previous hearing.

PN3

DEPUTY PRESIDENT CLANCY: All right, and we have there also Mr Snyder. You're there?

PN4

MR J SNYDER: Yes.

PN5

DEPUTY PRESIDENT CLANCY: All right. Mr Jensen, when you say only in relation to the questions on section 725, 729 and 732, how does your client propose to approach the other matters?

PN6

MR JENSEN: My clients, who had prepared for those other matters previously, was going to run the case for the respondent that we are.

PN7

DEPUTY PRESIDENT CLANCY: Right.

PN8

MR JENSEN: So he was previously heard, he prepared for those, came with the provision that he was going to represent the school in that instance. That is when the full bench raised the issues of the 725 and 729 issue and was adjourned, so once those issues are resolved, he would resume as he was going to at the previous hearing.

PN9

DEPUTY PRESIDENT CLANCY: Right, but what if we are to deal with the - as we intend to do - both questions today?

PN10

MR JENSEN: I would purely make some remarks with regards to the submissions which have been filed. The submissions have been filed, I don't think it requires any further discussion or - there is just one issue with regards to the response filed by the appellant in this matter on the issue of 725. I have some comments to make on that and that will be the extent of my submissions today.

PN11

DEPUTY PRESIDENT CLANCY: Right, so you're not in a position or you're not intending to address the substantive matters on the application for permission to appeal in the appeal?

PN12

MR JENSEN: No.

PN13

DEPUTY PRESIDENT CLANCY: Right. Now, just before I go back to Mr Jensen, Mr Snyder, you filed some written submissions on the question of representation. They're dated 18 October 2018. Is there anything further you wish to say to those or anything further you wish to say in relation to what Mr Jensen has just put today?

PN14

MR SNYDER: No, I am happy for Mr Jensen to represent the respondent on that particular matter.

PN15

DEPUTY PRESIDENT CLANCY: All right, look, thank you. Mr Jensen, we have listed this matter for hearing in relation to the application for permission to appeal, the issues on the appeal, and arising out of our preliminary review of the file the questions that we've raised or the question we've raised in relation to the interaction of sections 725, 729, 732 - it wasn't our intention to run a segmented hearing today and in our view if we are to grant permission for a party to be represented today it's in relation to the whole matter. Now, how you subsequently treat or intend to conduct the matter is ultimately a matter for the respondent but what we intend to do is hear Mr Snyder on all three matters.

PN16

Sorry, when I say the three matters it's the question of permission to appeal and the appeal, those interactions of the section 725, 729 and 732 and the question of whether it's in the public interest for the Commission to grant permission for the appeal. We would ask Mr Snyder to address us first, the respondent to address us then and Mr Snyder to have an opportunity to reply. In our view, that is the efficient way to conduct the appeal today so that's how we intend to proceed.

PN17

Our view having regard to the matters raised by the appeal - and that is all the matters - and the factors in section 596 of the Act is that we are of the view that the matter is of sufficient complexity that it would be dealt with more efficiently if Helena College was legally represented so we are going to grant them that permission. How you now conduct it is ultimately a matter for you and your client to decide but we're not going to have a hearing today where we're dealing with section 725 and then we'll finish that and then we'll go into an analysis of the appeal. We want to hear the parties on all matters, all right?

PN18

MR JENSEN: I understand, Deputy President. What I propose then is I have one small issue which I (indistinct) on 729 when it comes the time to respond to Mr Snyder's submissions. I would make that comment and then Mr Papali would finish the appeal on all the other issues.

PN19

DEPUTY PRESIDENT CLANCY: All right, if that is the way the respondent wants to run it that is the way it will run. All right, then - - -

PN20

MR JENSEN: Thank you, Deputy President.

PN21

DEPUTY PRESIDENT CLANCY: - - - Mr Snyder - - -

PN22

MR SNYDER: Yes.

PN23

DEPUTY PRESIDENT CLANCY: - - - the full bench has had the opportunity to review the material that you've filed. We now invite you to make any oral submissions you would like to make in relation to the grounds of appeal which you have raised and also into the questions arising out of the interaction of section 725, 729 and 732 and also why you say it is in the public interest for the Commission to grant permission for your appeal so here is your opportunity now. You are invited to address the bench. If you wanted to do that standing you can do it. If you want to remain seated you can do that - whatever you're most comfortable with.

PN24

MR SNYDER: Okay.

PN25

DEPUTY PRESIDENT CLANCY: Just be mindful that that microphone there is to pick up your voice for the purposes of recording transcript so as long as you're speaking clearly into that it's not necessarily an amplification tool.

PN26

MR SNYDER: Yes, okay.

PN27

DEPUTY PRESIDENT CLANCY: All right, thank you, Mr Snyder.

PN28

MR SNYDER: Okay, so I initially applied for unfair dismissal at the WAIRC 15 days after I was dismissed. It is now nine months later and I am here to appeal a decision regarding my Fair Work Commission being lodged late and also defend why my application was allegedly lodged early. Once I have defended the lateness and earliness of my application I hope to finally have an opportunity to have my substantive case heard. I previously provided detailed evidence-based claims in support of my appeal application including initial submissions on 17 August, submissions regarding section 725 on 13 September and response on 21 September and response to the respondent's submissions on 19 October with a supportive comparison table on 21 October.

PN29

I stand by these submissions and request that they are each considered. In my oral submissions I will summarise my previous written submissions. In regards to the interaction of section 725, 729 and 732, paragraph 2711 of the Fair Work Act 2008 Explanatory Memorandum says that these sections are intended to insure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy. The respondent seeks to do the opposite of this intention. I took action to withdraw my previous application before applying to the Fair Work Commission and formally withdrew that application the next day once I knew the process for formal withdrawal.

PN30

The former application could not have resulted in a remedy as it was made in the wrong jurisdiction and the latter application has not yet been allowed to be made so it cannot be said that I was ever seeking two different remedies for the same dismissal at the same time. In any event, quashing the decision and statute barring my initial application would only result in me having to recommence the processes of the past nine months all over again which is a perverse outcome. If that were the case I request the full bench uses its discretion to waive the irregularity of my application being lodged a single day late - sorry, a single day too early - pursuant to section 386 of the Fair Work Act.

PN31

I refer to the full bench's decision [2011] FWA FB 5225 in support of an action indicating retreat as satisfying the condition of withdrawal in these sections. I refer to the full bench's decision [2012] FWA FB 3212 in relation to the wording of an application being made in support of my application having not yet been made because it has not yet allowed - sorry, because it has not yet been allowed to be made and I refer to decisions [2014] FWC 1871, [2016] FWC 1133, [2017] FWC 3323 and [2017] FWC 0471 as precedents for using section 586 to waive an irregularity when an application was inadvertently made too early.

PN32

In regards to the appeal, I would first summarise my four points of appeal which relate to the two criteria to which Gregory C paid particular regard, namely the reason for the delay and the merits of the application, and then I will summarise my points addressing the requirement for my appeal to be in the public interest. The first point of appeal - in the decision it was stated that I was first made aware of the respondent's objection on 9 March but the evidence showed that this objection could not have been served on me prior to 12 March. This means that the 13-day period that the Commission had particular issue with was actually only 10 days.

PN33

While a three-day difference does not seem significant if the Commissioner realised that the period was 23 per cent shorter than he considered it might have influenced his discretion. The respondent has not objected to this point of appeal. The second point of appeal - in the decision it was stated that on receiving the jurisdictional objection it would have been prudent and perhaps expected that I immediately apply to the Fair Work Commission yet the respondent had offered to momentarily set aside the jurisdictional objection so that we could try to resolve the issue through conciliation. As such I feel that it was prudent and expected that I accepted the respondent's offer to try to resolve the matter rather than immediately withdraw that application and start a new process. In any case I had a strong conviction based on 2.5 years of the respondent representing that they were covered by the state registered agreement.

PN34

The Commissioner only considered a single mention in a letter 2.5 years prior even though the continuous misrepresentation is highly relevant to the reason I did not immediately withdraw the initial application. Furthermore the Commissioner did not ask me any questions regarding the period of time immediately prior to the conciliation and yet his decision relied on false assumptions contrary to the evidence regarding this period.

PN35

DEPUTY PRESIDENT CLANCY: What are those false assumptions?

PN36

MR SNYDER: I'm about to get to that. In particular in paragraph 10 of the decision the Commissioner states:

PN37

He also agreed in response to a question from the Commission that it was a combination of his uncertainty about the actual position and the advice from the union that led to him initially making application to the WAIRC.

PN38

MR SNYDER: Yet in paragraph PN 38 to PN 42 of the transcript the following was exchanged:

PN39

COMMISSIONER: Why did you not at the time lodge an application with the federal Fair Work Commission?

PN40

MR SNYDER: For a variety of reasons - mainly because the EBA that the college had been referring to was registered in the West Australian Industrial Relations Commission but also because my union representative said that the WAIRC was the appropriate forum for me to do it because Helena College was a state system employer and I hadn't been told that Helena College was a national system employer so I had assumed through all of this information that they were actually a state system employer. So that's why I applied to the WAIRC.

PN41

COMMISSIONER: Okay, so it was a combination of uncertainty and based on the advice from your union that you initially went to the state tribunal?

PN42

MR SNYDER: Yes and also that the EBA is registered at the WAIRC.

PN43

MR SNYDER: So the only reference to uncertainty was in the Commissioner's question and it's very clear from what I said that the main reason for applying to the WAIRC was because the respondent continuously referred to a state-registered agreement which the Commissioner did not consider in his decision at all. The Commissioner's focus was on the uncertainty by which he assumed that I was unaware of the distinction between the two jurisdictions. It appears as though the Commissioner had a preconceived idea that my case was yet another case of an employee accidentally applying to the wrong jurisdiction and because of this, he ignored the evidence from both parties that I was well aware that there was a distinction between the national system and the state system.

PN44

DEPUTY PRESIDENT CLANCY: Mr Snyder - - -

PN45

MR SNYDER: Yes.

PN46

DEPUTY PRESIDENT CLANCY: - - - the Commissioner's decision - he seems to suggest that a particular part of the delay he's focused on is from 9 March.

PN47

MR SNYDER: Yes.

PN48

DEPUTY PRESIDENT CLANCY: So how do you say that there is error in the approach he adopted in his analysis of the period from 9 March?

PN49

MR SNYDER: I'm getting to that as well.

PN50

DEPUTY PRESIDENT CLANCY: All right, how about getting to it now?

PN51

MR SNYDER: Okay - so if the Commissioner considered the evidence specific to my case then there were only two possible conclusions: either I applied for to the WAIRC based on a strong conviction that the respondent was a state system employer or I chose to be ignorant and as the respondent claims and applied to the state system even though I was allegedly aware that the respondent was a national system employer as there would be no benefit to me purposely choosing to apply in the wrong jurisdiction - - -

PN52

DEPUTY PRESIDENT CLANCY: Mr Snyder, I'm going to take you to paragraph 49 of the conclusion of the decision - - -

PN53

MR SNYDER: Yes.

PN54

DEPUTY PRESIDENT CLANCY: - - - where it's about five lines down:

PN55

However, I am also satisfied he should have been alerted to the fact he may have made application in the wrong jurisdiction when the jurisdictional objection was made to his application by the College on 9 March this year. However, he decided to let that process play out and only made the present application when the processes before the state Commission had been exhausted.

PN56

DEPUTY PRESIDENT CLANCY: So I would like to hear from you on what you say about his characterisation of the delay in that period.

PN57

MR SNYDER: Yes, so basically when the respondent made their single-sentence jurisdictional objection they - without any evidence to back it up - there was no sufficient evidence to make me aware that they were already a national system employer as the Commissioner concluded because it contradicted everything that was said to me throughout the 2.5 years of my employment.

PN58

DEPUTY PRESIDENT MASSON: Mr Snyder, it's Masson DP here as well.

PN59

MR SNYDER: Yes.

PN60

DEPUTY PRESIDENT MASSON: That may well be the case but you were sufficiently interested in that jurisdictional point raised by the respondent to seek some legal advice, weren't you?

PN61

MR SNYDER: Yes.

PN62

DEPUTY PRESIDENT MASSON: And that - sorry, I'll finish the question if you wouldn't mind - that legal advice was obtained on 14 March, correct?

PN63

MR SNYDER: Partially, yes.

PN64

DEPUTY PRESIDENT MASSON: Well, what do you mean, "partially?"

PN65

MR SNYDER: Well, the legal advice that I obtained on 14 March, which didn't fully address the issue, said also that the Helena College collective agreement didn't apply to my employment. So then that raised a further issue because Helena College had said the whole time the Helena College collective agreement - - -

PN66

DEPUTY PRESIDENT MASSON: I'm going to take you to some particular opinion given to you on page 3 of that legal advice under the heading, "Is the former employer a national system employer?" In the final paragraph it says, final sentence:

PN67

This means the legal argument that it is within the federal industrial relations system rather than the Western Australian industrial relations system is strong and persuasive.

PN68

MR SNYDER: Sorry, what page was that on?

PN69

DEPUTY PRESIDENT MASSON: Well, that is on the third page of the legal advice you received from Lynn and Brown.

PN70

MR SNYDER: Yes.

PN71

DEPUTY PRESIDENT MASSON: It is in that section of the letter with the bold heading, "Is the former employer a national system employer?" It's in the third paragraph, the final sentence.

PN72

MR SNYDER: Yes, but then in the next section it does say that there is a case to be made at the WAIRC as well because of the Helena College collective agreement applying to my employment.

PN73

DEPUTY PRESIDENT MASSON: Well, I'm just highlighting that you had some advice - your personal legal advice made particular reference to the strength of the argument that the respondent was a national system employer. That was on top of the jurisdictional objection the employer had raised so perhaps in answering the Deputy President's question on your post 9 March conduct, you can include a response as well on that, thank you.

PN74

MR SNYDER: Okay, so the legal advice that I got as was stated there was ongoing. The lawyer did advise me that there was a strong case that they were a national system employer. They also said that the Helena College collective agreement wouldn't apply to my employment if that was the case and so then that created further confusion, obviously, because Helena College was saying that they were a national systems employer but that the Helena College collective agreement still applied to my employment. So from that advice I was still uncertain as to what actually happened or, like, the legal part of that.

PN75

I sought further advice from them in regards to the collective agreement - - -

PN76

DEPUTY PRESIDENT MASSON: Have you furnished that advice in your material?

PN77

MR SNYDER: I did in the email - - -

PN78

DEPUTY PRESIDENT MASSON: You refer to - - -

PN79

MR SNYDER: Sorry, not the - the advice that the lawyer gave me was oral.

PN80

DEPUTY PRESIDENT MASSON: Okay, thank you.

PN81

MR SNYDER: But the email - sorry, I did put in an email as well from me to the Fair Work Commission stating that I saw - - -

PN82

DEPUTY PRESIDENT MASSON: No, no, I'm referring to you referred to having received further advice from Lynn and Brown in relation to this point about whether the respondent was a national system employer and you've answered that you haven't included that in the material as it was orally obtained. Is that correct?

PN83

MR SNYDER: That is correct.

PN84

DEPUTY PRESIDENT MASSON: Okay, thank you. Sorry to have distracted you there, you can return to the path you were on responding to the Deputy President.

PN85

COMMISSIONER LEE: Yes, but, Mr Snyder, if I look at the transcript of the hearing - - -

PN86

MR SNYDER: Yes.

PN87

COMMISSIONER LEE: - - - at PN 44 or PN 43, the Commissioner says:

PN88

Yes, yes, okay, okay, and your issues were obviously not able to be resolved through those processes.

PN89

COMMISSIONER LEE: You say then at PN 44:

PN90

No, Helena College responded after 21 days that they were a national system employer. I then went and saw a lawyer and got legal advice and the legal advice told me that they probably are a national system employer, in which case the EBA didn't actually apply to my employment.

PN91

MR SNYDER: Yes.

PN92

COMMISSIONER LEE: And also:

PN93

Yes, so then the respondent agreed to have a conciliation meeting at the WAIRC so I was hoping that that would resolve the matter. That was held on 22 March but it didn't resolve the matter and so that afternoon I applied to the Fair Work Commission because I was now aware that they are a national system employer and I then withdrew application to the WAIRC because obviously they are a national system employer.

PN94

COMMISSIONER LEE: So that was what you put before the Commissioner.

PN95

MR SNYDER: Yes, and the Commissioner didn't consider that I sought legal advice during that time. That was not referred to in the decision at all and in the decision it was not referred to that Helena College misrepresented the agreement throughout my employment, which meant that - - -

PN96

COMMISSIONER LEE: The Commissioner was interested in this period after 9 March - - -

PN97

MR SNYDER: Yes, I know, but - - -

PN98

COMMISSIONER LEE: - - - when it was placed on the record, that it had a jurisdictional objection.

PN99

MR SNYDER: Yes, but a single sentence from Helena College at that time did not make me aware that they were because they had previously said that they weren't. So it's not as simple as them saying so and then it's automatically I believe that that is so, because they had for 2.5 years said the opposite of that. In the decision the Commissioner referred to only my contract of employment, stating the agreement but didn't refer to the fact that for 2.5 years they were referring to this agreement during the enterprise bargaining discussions they were referring to this agreement and specifically said that the agreement is in the state system.

PN100

So a single sentence after such a period of time did not convince me that they were suddenly a national system employer because it went against what they said, what the union said, what the staff representative said and so I needed to get this clarification and so - - -

PN101

COMMISSIONER LEE: Mr Snyder, the difficulty is that the Commissioner acknowledged the mistaken belief so in paragraph 49 he says:

PN102

It is acknowledged that he made application to the WAIRC on the basis of a mistaken belief that it was the appropriate jurisdiction in which to pursue an unfair dismissal claim.

PN103

COMMISSIONER LEE: But then goes on as the Deputy President is referring to to focus in on the fact that you should have been alerted on 9 March.

PN104

MR SNYDER: Yes.

PN105

COMMISSIONER LEE: But you would agree, wouldn't you, that he has taken into account - well, he's acknowledged in considering whether there was an acceptable reason for the delay - those various factors in making that statement that he's made there, hasn't he?

PN106

MR SNYDER: Yes, but I don' believe that I should have straight away been made aware just because of that one sentence. So if he - because the evidence that he considered was the contract of employment 2.5 years ago, he didn't consider all of the other stuff and if he considered all of the other stuff then it would have been apparent to him, I believe, that I would not be persuaded by a single-sentence response without any evidence from Helena College.

PN107

COMMISSIONER LEE: But you didn't make that submission.

PN108

MR SNYDER: I also wasn't asked about that period. I didn't realise that that period would be of such importance in his decision because I thought that me going through the process of trying to get this issue resolved through the WAIRC would be favourable for my decision, not against my decision because then I wouldn't even have to apply to the Fair Work Commission if that actually happened.

PN109

COMMISSIONER LEE: Because you would have got a remedy out of the West Australian Industrial Relations Commission?

PN110

MR SNYDER: Yes, if the conciliation meeting at the industrial relations commission was successful then I wouldn't have had to have applied to the Fair Work Commission and so I don't see why me trying to seek a remedy and have that resolved would go against my application that explains the reason for the delay.

PN111

DEPUTY PRESIDENT CLANCY: All right, okay. So that is how you approached that period after 9 March?

PN112

MR SNYDER: Yes, well, it was actually after 12 March - - -

PN113

DEPUTY PRESIDENT CLANCY: All right.

PN114

MR SNYDER: - - - because the documents were served on me on the 12th. So it's only 10 days.

PN115

DEPUTY PRESIDENT CLANCY: Yes, okay.

PN116

DEPUTY PRESIDENT MASSON: Just on that point - - -

PN117

MR SNYDER: Yes.

PN118

DEPUTY PRESIDENT MASSON: - - - because at paragraph 32 of the decision the Commissioner says:

PN119

Mr Snyder also submits that the process of dealing with his application in the WAIRC was delayed because of the college's tardiness in providing his response which was not received until 9 March - - -

PN120

DEPUTY PRESIDENT MASSON: - - - et cetera, et cetera.

PN121

MR SNYDER: Yes.

PN122

DEPUTY PRESIDENT MASSON: Did you submit to the Commissioner that you didn't receive it until 12 March?

PN123

MR SNYDER: The respondent actually submitted evidence that had the - an email from the Commission date stamped 12 March, which was when they first received the stamped copy - - -

PN124

DEPUTY PRESIDENT MASSON: Right.

PN125

MR SNYDER: - - - and they couldn't have served that on me before they received the stamped copy from the WAIRC.

PN126

DEPUTY PRESIDENT CLANCY: Just while we're on dates, Mr Snyder, I think in your opening you suggested that you lodged your application in the West Australian commission on 10 March, is that correct?

PN127

MR SNYDER: Yes.

PN128

DEPUTY PRESIDENT CLANCY: I just want to take you to appeal book 87, because it appears to have - sorry, I think you said 10 February. I apologise. But it would appear that the document was actually filed on 13 February. Now, nothing much may turn on that but I'm just curious as to the difference in your evidence and the actual date stamp on the application.

PN129

MR SNYDER: Because I sent it on Saturday 10 March - sorry, Saturday 10 February.

PN130

DEPUTY PRESIDENT CLANCY: Well, the evidence, however, appears to be that it was received in the Commission on 13 February.

PN131

MR SNYDER: Yes.

PN132

DEPUTY PRESIDENT CLANCY: Okay.

PN133

MR SNYDER: Yes.

PN134

DEPUTY PRESIDENT CLANCY: Thank you.

PN135

MR SNYDER: Okay, can I go on to the third and fourth points of my appeal now?

PN136

DEPUTY PRESIDENT CLANCY: Yes.

PN137

MR SNYDER: Yes?

PN138

DEPUTY PRESIDENT CLANCY: Thank you.

PN139

MR SNYDER: My third and fourth points of appeal relate to omitted evidence in regards to the merits of the case. The Commissioner only considered the evidence for the period up until 10 January, did not consider evidence submitted for the period between 11 and 23 January, did not consider that the appropriate written information was provided a month after the meetings, nor did the Commissioner consider which consultation provision from which industrial instrument the employer should have been following. My union representative had negotiated a timetable that would allow me Tuesday and Thursday afternoons off and Wednesdays off all day for semester one because of my family circumstances.

PN140

On 10 January the respondent changed their minds, stating for - that the first seven weeks of semester one would actually have to be worked at 1.0 FDE across the five days of the week, did not accept our offer to meet and gave me less than two days to make a decision.

PN141

DEPUTY PRESIDENT MASSON: Mr Snyder, what's this appeal point going to? The merit of your application for unfair dismissal?

PN142

MR SNYDER: Yes.

PN143

DEPUTY PRESIDENT CLANCY: All right, so if I could take you to the Commissioner's decision, at 47, so you take issue with the Commissioner's finding, do you, that it's difficult to conclude based on the materials now before the Commission that your case has significant merit:

PN144

There are a number of discussions held with him after it was decided that the maintenance of a full-time position could not be justified. He was also provided with some options in these circumstances. Whilst it is accepted that Mr Snyder did not necessarily agree with the rationale for what was being proposed this does not mean that the college's decision and the processes put in place as a consequence of that decision were necessarily misconceived or unwarranted.

PN145

DEPUTY PRESIDENT CLANCY: So what is your particular objection to the finding on the merits, given that the Commissioner says that it's not in a position to have a concluded view? What he said is it's difficult to conclude that your case has significant merit.

PN146

MR SNYDER: Well, he then went on to use - he used that to dismiss my application, as one of the points that was to dismiss my application. I don't think that him being unable to make a conclusion is sufficient to dismiss an application based on the merits of the application and I also, as I was saying, don't think that he fully considered the consultation given that the written information was provided one month after the two meetings. So it's not as though the meetings went on for a long time. There were two meetings in the first week of December and then there were no meetings after that.

PN147

Also, with my fourth point of appeal, the Commissioner made a decision about the date of my dismissal being 25 January. But he also said that the intended date of the dismissal was 19 March on 23 January and he did not consider what actually happened between 23 and 25 January to warrant the respondent dismissing me several weeks earlier, which - - -

PN148

DEPUTY PRESIDENT MASSON: Mr Snyder, isn't it the case that there had been exchange between you and the respondent between the 10th and the 25th whereby for reasons of being unable to agree on payment in lieu you elected to take full redundancy. Then you were requesting respectfully that you not have to work out that notice period. The respondent in response said, "No, we want you to work out the notice period." Then on 25 January you strongly requested that the notice be paid out and then - to which the respondent agreed.

PN149

MR SNYDER: Some of that communication was with the chair of council as a formal complaint which - - -

PN150

DEPUTY PRESIDENT MASSON: No, I'm asking you whether you made a request on 25 January that your notice be paid out and the respondent agreed to that.

PN151

MR SNYDER: No, on 22 - - -

PN152

DEPUTY PRESIDENT MASSON: All right, hang on - can you show me where that is not the case in your material?

PN153

MR SNYDER: Well, the letter was sent on 22 January so I didn't make that request on 25 January and it was not made to Mr Papali or Mr Lyons. It was made to the chair of council who said that he would take 21 days to consider that.

PN154

DEPUTY PRESIDENT MASSON: But I'm saying - can I take you to appeal book page 85?

PN155

MR SNYDER: Yes.

PN156

DEPUTY PRESIDENT MASSON: In the second paragraph you specifically request that your redundancy request on Monday, 29 January to coincide with the change of timetable and you felt that it would only be appropriate to resolve this matter before that date.

PN157

MR SNYDER: Yes, that was to the chair of - - -

PN158

DEPUTY PRESIDENT MASSON: Okay, so you were requesting that you not be required to work out the notice period?

PN159

MR SNYDER: Well, yes, but that is a referral back to my letter from the 22nd so I - - -

PN160

DEPUTY PRESIDENT MASSON: No, I'm just trying to get you to tell me - to agree or disagree that that was a request made by you that you not be required to work out the notice period.

PN161

MR SNYDER: That was a request by me to the chair of council.

PN162

DEPUTY PRESIDENT MASSON: Well, whether it was to the chair of council or to somebody else, it was requested that you not be required to work out the notice period, is that the case?

PN163

MR SNYDER: Yes.

PN164

DEPUTY PRESIDENT MASSON: Okay, then if I take you to appeal book 86, they responded to that request and agreed.

PN165

MR SNYDER: No, that is not a response to that request. The letter on page 86 is from the principal of the school and the principal of the school was apparently not aware of this formal complaint. The chair of council had said that he would take 21 days to investigate that complaint. There was no resolution to that complaint and then - - -

PN166

DEPUTY PRESIDENT MASSON: Okay.

PN167

MR SNYDER: - - - the principal dismissed me on the 25th.

PN168

DEPUTY PRESIDENT MASSON: Okay, and you say that the correspondence of the 25th was unrelated to your request that you not be required to work out the notice period?

PN169

MR SNYDER: Well, I don't know if it was because in the letter it doesn't specifically say that it was and - - -

PN170

DEPUTY PRESIDENT MASSON: But you seem to be cavilling with a request that you - having made on the 25th, having been agreed to.

PN171

MR SNYDER: It wasn't agreed to, though.

PN172

DEPUTY PRESIDENT MASSON: Okay, all right, thank you.

PN173

DEPUTY PRESIDENT CLANCY: Mr Snyder, on page 82 of the appeal book in your letter to the chair of the school council, the last paragraph from page 82:

PN174

In order to resolve this dispute I proffer to accept the 1.0 FDE redundancy effective 29/1/2018 with the seven weeks' notice paid out in lieu, associated 2.1 weeks holiday pay and the required six-week severance pay as supplied by the college in the redundancy payment details.

PN175

DEPUTY PRESIDENT CLANCY: Then over the page on 83, the third paragraph:

PN176

IF the college feels that this is a reasonable means of resolving the dispute then despite the previously negotiated means to minimise adverse effects of this redundancy no longer being relevant and the process being full of contradictions I will consider this dispute to be resolved in the interests of finalising this process.

PN177

MR SNYDER: Yes. That is the letter that I was referring to that I sent on 22 January.

PN178

DEPUTY PRESIDENT CLANCY: Yes, well, then when the college responded on the 25th doing what you requested, isn't that a response to your - - -

PN179

MR SNYDER: Again, that was from a different person and also the college didn't actually pay what I had asked and so that is why I considered that the dispute was not resolved, because they did not pay the amount that they had offered, which was $30,000 and something. They paid less than that and then they demanded that I re-pay my salary for the entire month of January. So that is why I, as I said - they did not meet what I had asked for and they - and so then I didn't consider the case resolved.

PN180

COMMISSIONER LEE: In any case, it's apparent that your employment ended on 25 January. You don't cavil with that, do you?

PN181

MR SNYDER: No, but that was seven weeks prior to the date that they said had to be the date that the redundancy started.

PN182

COMMISSIONER LEE: That may have been the case but it ended on 25 January as a matter of fact, didn't it?

PN183

MR SNYDER: Yes, I understand that but that means that either the - what - either their rejection of my request to bring it forward was unreasonable or they dismissed me for a reason that wasn't redundancy because nothing changed between 23 and 25 January to warrant bringing the redundancy forward by seven weeks. They haven't explained why they brought the redundancy forward by seven weeks. They just said that they chose to do it.

PN184

DEPUTY PRESIDENT CLANCY: Well, one conclusion could be they chose to do it because you asked them to do it in your letter of the 22nd.

PN185

MR SNYDER: Yes, but given that that investigation was not concluded I - - -

PN186

DEPUTY PRESIDENT MASSON: But the offer that you put to them or the proposal that you put to them on the 22nd wasn't conditional on an investigation being concluded. It was an offer to say, "Let's resolve it now." That's what your letter says, doesn't it?

PN187

MR SNYDER: As part - yes, but that was as part of a formal complaint about the entire process which I was told would be investigated.

PN188

DEPUTY PRESIDENT CLANCY: Okay. All right, you can continue on with your submissions.

PN189

MR SNYDER: Hang on a second - sorry, I've lost - okay, I'll move on to the public interest. So in my written submissions I've referred to decision [2010] FWA FB 5343 GlaxoSmithKline Australia Pty Ltd v Makin, decision [2017] FWC 3866 King v Gourmet Beef Pty Ltd and decision [2017] FWC 6057 Yvonne Carn v Anglican Schools Commission T/A Swan Valley Anglican Community School. With reference to the test of public interest I would argue that the decision at first instance manifests an injustice as it had created a precedent where any employer can misrepresent the industrial rights of an employee leading the employee to initially apply in the wrong jurisdiction and then simply quote Gregory C's decision to dismiss the subsequent application and circumvent any unfair dismissal remedy which is a clear injustice.

PN190

I also argue that a Commissioner not considering significant evidence that was discussed by both parties in oral and written submissions raises issues of important and general application. I have also argued that in my case the legal principles applied appeared disharmonious when compared with other recent decisions dealing with similar matters. In relation to King v Gourmet Beef Gostencnik DP said in paragraph 63:

PN191

A significant factor in cases of this kind is the steps that an applicant took to seek advice after becoming aware that there was a jurisdictional problem with his or her state industrial law application.

PN192

MR SNYDER: Gregory C did not consider the steps that I took to seek legal advice following the respondent's jurisdictional objection. In Carn v ASC, the Commissioner considered the applicant waiting 20 days for conciliation meetings followed by a further two days before applying to the Fair Work Commission to be reasonable whereas in my case Gregory C considered a 10-day wait for conciliation and a few-hour wait before applying to the Fair Work Commission to be unreasonable. Legal principles applied in Gregory C's decision are clearly disharmonious with those of Riordan C's just six months earlier under very similar circumstances.

PN193

Furthermore in the same decision Riordan C stated at paragraph 23:

PN194

In Kornicki v Telstra Network Technology Group the Commission has considered the principles applicable to the extension of time discretion under the former section 170(c)(e)(8) of the Workplace Relations Act 1996. In that case the Commission held that if the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.

PN195

MR SNYDER: Gregory C did not conclude that my application was without merit. He said it was difficult to conclude that my case had significant merit. Thus his test was whether or not my case had significant merit rather than the established test of whether or not it was without merit. Again, the legal principles of Gregory C's decision were disharmonious with other decisions. Thus there were significant errors and it is in the public interest to quash the initial decision and grant me an extension of time which will allow me to finally have an opportunity to have my substantive case heard.

PN196

If the respondent did not misrepresent that they were covered by a state-registered agreement we would not be here nine months later. If this appeal is dismissed then they would get away with circumventing an unfair dismissal remedy because they misrepresented my workplace rights. This would be an injustice.

PN197

DEPUTY PRESIDENT CLANCY: Mr Snyder - - -

PN198

MR SNYDER: Yes.

PN199

DEPUTY PRESIDENT CLANCY: - - - I want you to turn to the questions raised by the operations of section 725, 729 and 732.

PN200

MR SNYDER: Yes.

PN201

DEPUTY PRESIDENT CLANCY: Now, when do you say your application to the Fair Work Commission was made?

PN202

MR SNYDER: Sorry?

PN203

DEPUTY PRESIDENT CLANCY: When do you say your application to the Fair Work Commission - this application - was made?

PN204

MR SNYDER: Well, according to the Fair Work Act the Fair Work Commission has not allowed my application to be made.

PN205

DEPUTY PRESIDENT CLANCY: All right. So if your appeal was successful when would your application be made - considered made?

PN206

MR SNYDER: When the appeal is successful.

PN207

DEPUTY PRESIDENT CLANCY: So you say it's not when you filed it in the Commission on the 22nd?

PN208

MR SNYDER: That's when I lodged the application but the Commission hasn't allowed for that to be made.

PN209

DEPUTY PRESIDENT CLANCY: Yes, but if we extended time to when you lodged it in the Commission on the 22nd is that when your - do you say that's when your application is made?

PN210

MR SNYDER: I'm not sure how that actually works technically.

PN211

DEPUTY PRESIDENT CLANCY: Well, when we raised this question with you we sent you a couple of decisions. Do you remember that?

PN212

MR SNYDER: Yes, yes.

PN213

DEPUTY PRESIDENT CLANCY: So what do you say about those decisions?

PN214

MR SNYDER: In my written submissions I said that I didn't think that they were relevant because I wasn't actually changing my application to a different type of application and that - - -

PN215

DEPUTY PRESIDENT CLANCY: No, that's the second sort of issue. It's more the one that - ABC Transport, which was the appeal against the decision of Kaufman SDP. Do you remember that decision?

PN216

MR SNYDER: So the (indistinct) v Northern Bolting Services Pty Ltd?

PN217

DEPUTY PRESIDENT CLANCY: No, it's the other one - ABC Transport.

PN218

MR SNYDER: I don't believe I received that one. I was only given one decision at that time. I was given the three parts of the Fair Work Act and the - - -

PN219

DEPUTY PRESIDENT CLANCY: Sorry, I thought we had sent you both.

PN220

MR PAPALI: It was given under the Commissioner.

PN221

DEPUTY PRESIDENT CLANCY: It was?

PN222

MR PAPALI: Yes, because we have a copy.

PN223

DEPUTY PRESIDENT CLANCY: Right, okay.

PN224

DEPUTY PRESIDENT MASSON: Mr Snyder, I think you must have at one point had a copy of the ABC decision because you did in fact make reference to that in your submissions in relation to when your application was made or not made as the case may be so it may well be in your materials somewhere. But I certainly have a note that in your submissions you have made reference to it.

PN225

MR SNYDER: Okay.

PN226

DEPUTY PRESIDENT CLANCY: All right, so your position is that your application wouldn't be considered made until the date of our decision if our decision was to extend time?

PN227

MR SNYDER: That would make sense logically to me, if say for example you did that today then yesterday it hadn't been allowed to be made and today it would be allowed to be made so that's - that makes sense to me. I'm not sure - - -

PN228

DEPUTY PRESIDENT CLANCY: But if you're looking at section 394(2) of the Act, which says the application must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission allows under subsection (3) - - -

PN229

MR SNYDER: Yes.

PN230

DEPUTY PRESIDENT CLANCY: - - - and then in the - I understand you say you don't have it but so the case of ABC, it's said at paragraph 11:

PN231

As a matter of grammatical logic no application has been made until allowed by the - - -

PN232

MR SNYDER: Sorry, are you - that decision wasn't provided to me on the day. I found that decision myself. But yes, I recognise that decision now, yes.

PN233

DEPUTY PRESIDENT CLANCY: Okay. All right so that is your position, that it would be made on the date we - if we ordered it it would - if we allowed your application that would be the date it's made, is it?

PN234

MR SNYDER: As I said I am unsure of the technicalities of that and that would be a matter for the full bench to decide.

PN235

DEPUTY PRESIDENT CLANCY: All right.

PN236

MR SNYDER: But as I've said in my written submissions I feel that my case is very similar to the other decisions where dismissal happened after the application was made and so the Commissioners have waived that irregularity whereas it is not similar to the decisions where somebody has applied for the wrong remedy and have asked for it to be changed to a different remedy.

PN237

DEPUTY PRESIDENT CLANCY: Yes, all right.

PN238

DEPUTY PRESIDENT MASSON: Just so you're clear about the point the Deputy President is making, because I'm not sure you're grasping it and it's fair that you understand it, if you're looking at section 394 - have you got that in front of you?

PN239

MR SNYDER: I don't but I do know it and understand what you're saying.

PN240

DEPUTY PRESIDENT MASSON: As the Deputy President just said to you subsection (2) says the application must be made within 21 days after the dismissal took effect or within such further period as the FWC allows under subsection (3). Now, an ordinary reading of that is that it could be any further period but then (3), extended time limit, says:

PN241

The FWC may allow a further period for the application to be made if satisfied there are exceptional circumstances, taking into account those factors.

PN242

DEPUTY PRESIDENT MASSON: Now, in my experience the Commission, when exercising that discretion, when it does, allows a further period up until the time that the application purported to be made, if you like, but - let's say that was two days late or two weeks later, it doesn't matter - but that on every occasion in my experience is the date that the - sorry, I withdraw that. That is the further period which the Commission allows.

PN243

MR SNYDER: Yes.

PN244

DEPUTY PRESIDENT MASSON: That's my understanding. You're not aware of any decisions where the Commission has allowed a further period which has no relationship to when the person actually attempted to lodge their - attempted to make their application?

PN245

MR SNYDER: No, I'm not aware of any decisions like that but the Act as it reads certainly suggests it could be possible. That would be up to the full bench. I'm not in a position - I'm not trained in law. I'm not in a position to argue that. But it definitely sounds from the wording that the Commission could allow any period as they would choose.

PN246

DEPUTY PRESIDENT MASSON: Okay, all right.

PN247

DEPUTY PRESIDENT CLANCY: All right, thank you, Mr Snyder. What we'll do - have you finished your submissions? I understand you have, is that - - -

PN248

MR SNYDER: Yes.

PN249

DEPUTY PRESIDENT CLANCY: Yes, thank you. What we'll do now is ask Mr Jensen to address us and then I believe we'll hear from Mr Papali. After they've finished you'll have an opportunity to respond, all right?

PN250

MR SNYDER: Okay.

PN251

DEPUTY PRESIDENT CLANCY: Thank you. Yes, Mr Jensen.

PN252

MR JENSEN: Thank you, Deputy President. The actual issue I was going to raise is in regards to the 725 is the very matter you've just been discussing with the applicant here - the question of when the application is made and if there was the extension of time what date would it be classed as being the time it's made. We have read through the ABC decision and Commissioner (indistinct) position. Our position is that if an extension of time in this appeal is successful and an extension of time is given to the applicant in which to make his application the date that that would be extended to would be the date that the application was lodged in the Fair Work Commission.

PN253

In that situation section 725 would still be enlivened because it would still have the situation where you have two applications on foot at the one time and then it would be a question of whether the Commission is going to exercise its discretion and allow the applicant to vary his original application. I think I've summarised the point you were raising and discussing with the appellant just then. That was extent of what the comment we were going to make with regards to section 725.

PN254

DEPUTY PRESIDENT CLANCY: All right.

PN255

MR JENSEN: Unless there is any further questions on those aspects I would pass over to Mr Papali to deal with the appeal and leave to appeal.

PN256

DEPUTY PRESIDENT CLANCY: All right, thank you. We'll hear from Mr Papali.

PN257

MR PAPALI: Thank you, Deputy Presidents, Commissioner. So the appellant lodged a claim with WAIRC. It was for two claims the appellant had made. One was for unfair dismissal and one was for a claim for entitlements that were alleged to have not been paid during his period of employment. So we received a request from the Commissioner's office at WAIRC wanting to know whether we were wishing to address the jurisdictional objection raised in both matters heard and determined as a preliminary issue or would we consent to the matters being listed for a conciliation, ending the hearing and determination on the jurisdictional objection.

PN258

Now, our response to the Commissioner was as a goodwill gesture we agreed to consent to proceed with option two, which was to consent to the matters being listed for a conciliation conference pending the hearing. The Commissioner made the decision - sorry, it was identified that the jurisdiction issue was valid at the time and the next day the appellant withdrew his application, although in two days' time he withdrew the application. With regards to the claim that the appellant makes that for 2.5 years we stated that we were not a national system employer, I refute that because we never made a statement categorically to any staff member that we were not a national system employer.

PN259

We had an agreement, an enterprise agreement, that was registered with WAIRC and that was the instrument used to employ staff. However, in October 2017 we commenced the negotiations for the new agreement and it was put to the staff and the bargaining representatives that because we are a national system employer, if there is an industrial relations issue, the matter would be not be heard at WAIRC and would be heard at FWC so instead of registering the agreement again with WAIRC we would be better of registering the new agreement with FWC. Mr Snyder was an employee at the time in October 2017 so he was well aware - and I have provided evidence in the recent weeks showing that he was (indistinct) in the EBA meetings that were through the bargaining representatives.

PN260

So for Mr Snyder to make the statement that or the appellant to make the statement that he - 9 March was the first time that Helena College was claiming to be a national system employer in my view that is incorrect. The process with regards to redundancy - the applicant is claiming unfair dismissal. In our view we undertook the process because we had a change in circumstances at the school and we followed the process which was a genuine redundancy. It wasn't an unfair dismissal. The individual was given two options. He chose to go with partial redundancy but he wanted to have everything. He wanted to take the partial redundancy and not work the notice of leave.

PN261

The notice of leave of his position was 1.0 FDE. We are a not-for-profit organisation. We cannot be seen to be providing - and we are accountable to the government for grants that we get. We have got to spend our money in an appropriate manner. So the appellant was advised that your understanding of the notice period that will be worked at a reduced rate was never put forward and it cannot be supported. The appellant chose to then flip it and in the end he offered to take the 1.0 redundancy and we paid it out. With regards to his issue that he wrote this letter to the chair of council, the chair of council is the legal entity for Helena College.

PN262

I did have conversations with the chair of council prior to the payment of the full notice of leave being made on 20 January. I have got email evidence to show that we had discussions with the chair of council so for the appellant to make the statement that the chair of council only received the letter and the respondent was acting independently, that is incorrect. We are one organisation. Thank you.

PN263

DEPUTY PRESIDENT CLANCY: Thank you, Mr Papali. Mr Snyder, do you want to say anything in response to the submissions that either Mr Jensen or Mr Papali has made?

PN264

MR SNYDER: Yes, so in response to Mr Jensen, the other aspect of my section 725 case was about the withdrawal and I did refer to the previous decision that a dictionary of the word, "withdrawal", could be relied upon for this and I obviously did make - did take actions prior to lodging my application to the WAIRC. I said that I would like to withdraw it, which in the Fair Work Commission is sufficient to formally withdraw. I note that in the WAIRC it is not sufficient to formally withdraw that way but I did actually take action to withdraw so even if that were the case that my application - the Commission rules that my application was made on the 22nd I actually did take action to withdraw and to retreat from that application about an hour or two hours before that was lodged.

PN265

DEPUTY PRESIDENT MASSON: Mr Snyder, wouldn't it be reasonable to characterise that email you sent to Mr Luke Mater, I think his name was - - -

PN266

MR SNYDER: Yes.

PN267

DEPUTY PRESIDENT MASSON: - - - as an inquiry as to what the process was for withdrawal?

PN268

MR SNYDER: Yes, but I also did say that I wish to withdraw.

PN269

DEPUTY PRESIDENT MASSON: You say it was - - -

PN270

MR SNYDER: I informed him that I would like to withdraw and then asked him what the formal process was so I believe that that was me taking an action away from my application which - - -

PN271

DEPUTY PRESIDENT MASSON: But were you aware that the rules of the Western Australian Commission are quite prescriptive in terms of the processes for withdrawal?

PN272

MR SNYDER: Yes, I am, but there is no reference in the Act, in the Fair Work Act, that it has to be a formal withdrawal according to the rules of the relevant jurisdiction.

PN273

DEPUTY PRESIDENT MASSON: So your submission is that we should not have regard to the specific withdrawal processes in the WA system but rather we should have regard to and rely on extrinsic material such as the cases that you have referred to?

PN274

MR SNYDER: Yes, so I was referring to a full bench decision that relied on the dictionary definition of the word, "withdrawal."

PN275

DEPUTY PRESIDENT MASSON: Not withstanding there is a fairly clear process defined within the legislation regulations for the WA system?

PN276

MR SNYDER: Yes.

PN277

DEPUTY PRESIDENT MASSON: Okay, thank you.

PN278

MR SNYDER: In response to Mr Papali, he stated that Helena College was willing to set aside the jurisdictional issue and that is very, very similar to the other case with Anglican Schools Commission where they also set aside the jurisdictional issue so that the matter could be resolved. I also didn't say that Helena College categorically said that they were a national system employer. I said that Helena College misrepresented that they were a state system employer through reference to the state-registered agreement which Mr Papali has agreed to - well, not the misrepresented part but that they referred to the state-registered agreement throughout my employment.

PN279

In regards to the partial redundancy this was also raised in my written submissions for the extension of time case. They offered 39 per cent of the legislated minimum redundancy payments. If they had offered the full minimum legislated redundancy payments, then that decision would have actual been a lot easier for me. That also was not considered in the decision. The notice period that they had said was - well, the payment for the notice was 0.39 FDE. So my request to have that paid in lieu, it had no financial effect on the college at all. It just meant that I had a 0.61 FDE timetable. I would go to school and teach the exact same classes but I would not be required to be there five days a week when I didn't have classes to teach.

PN280

So there was no financial difference to the college so I think - - -

PN281

DEPUTY PRESIDENT MASSON: (Indistinct) the point that they wanted you to work and you didn't want to.

PN282

MR SNYDER: But they didn't provide me with any work to do.

PN283

DEPUTY PRESIDENT MASSON: All right, thank you.

PN284

MR SNYDER: They just provided me - in schools you get given a timetable and - - -

PN285

DEPUTY PRESIDENT MASSON: I understand, I understand. Thank you.

PN286

MR SNYDER: What Mr Papali raised just now about having conversations with the chair of council and emails with the chair of council, that is the first time that I've heard of that and it definitely wasn't raised at the extension of time conference so that is not - I don't think it should really be considered.

PN287

DEPUTY PRESIDENT CLANCY: Thank you, Mr Snyder. Is there anything further you want to put?

PN288

MR SNYDER: No, that's all, thank you.

PN289

DEPUTY PRESIDENT CLANCY: All right, thank you. We thank the parties for their written submissions, for their attendance today and for the submissions they've made during the course of the hearing today. The full bench will reserve its decision and issue its decision and reasons in writing in due course and I will now adjourn the Commission.

ADJOURNED INDEFINITELY                                                           [3.15 PM]

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