PN1

THE ASSOCIATE: Matter C2020/9059 ERGT Australia Pty Ltd v Kevin Govender, section 604 for hearing.

PN2

JUSTICE ROSS: Thank you. It's Ross J here. I've got Masson DP with me and Wilson C is also on the line. Could I have the appearances, please, firstly for ERGT?

PN3

MR S HEATHCOTE: Your Honour, it's Steve Heathcote, I appear for ERGT.

PN4

JUSTICE ROSS: Thank you, Mr Heathcote.

PN5

And, Mr Govender, you're appearing for yourself, is that correct?

PN6

MR K GOVENDER: Yes, your Honour.

PN7

JUSTICE ROSS: Thank you, Mr Govender.

PN8

Can I deal, firstly, with ERGT's application for permission to be represented by a lawyer in the appeal? We've received your submission on that, Mr Heathcote, and is there anything you wanted to say, in response to that application, Mr Govender? Now, that only deals with the application for permission to be represented by a lawyer in this appeal hearing?

PN9

MR GOVENDER: No, I don't have anything to say about that.

PN10

JUSTICE ROSS: All right. Well, taking into account the complexity of the appeal, we are satisfied that granting permission to ERGT to be represented by a lawyer would enable the matter to be dealt with more efficiently and we will exercise our discretion to grant permission, Mr Heathcote.

PN11

Mr Heathcote, can I take you to, firstly, your amended notice of appeal? Do you have that in front of you?

PN12

MR HEATHCOTE: I will do very shortly, sir, if you bear with me.

PN13

JUSTICE ROSS: No, that's all right.

PN14

MR HEATHCOTE: I've got the documents sitting on a laptop computer and I'm having to jump around a little bit, so if you'd bear with me while I do that.

PN15

JUSTICE ROSS: Sure.

PN16

MR HEATHCOTE: Yes, sir, I have it.

PN17

JUSTICE ROSS: All right, thank you.

PN18

Mr Govender, do you have that document as well?

PN19

MR GOVENDER: Which document is that, your Honour?

PN20

JUSTICE ROSS: It's the amended notice of appeal, filed by ERGT.

PN21

MR GOVENDER: Okay. I'm just going to open up my emails now.

PN22

JUSTICE ROSS: It's a short point that I wanted to raise, Mr Govender, so I might - I'll take Mr Heathcote to it and I'll ask you if you've got anything to say about this particular point, once I've finished, okay?

PN23

MR GOVENDER: Yes, okay.

PN24

JUSTICE ROSS: All right.

PN25

Mr Heathcote, at - in section 1, the decision to be appealed, at 1.1 you refer to the date of the decision as 26 November 2020. Then, in 1.2 you refer to, at paragraph 1, the email sent to the parties on 26 November, by the Deputy President's associate, and you attach that email to your notice of appeal. At paragraph 5, under 1.2, you refer to the decision of 22 December.

PN26

It's that one - what I'm unclear about is two things. I'm not sure what the Deputy President meant by characterising her decision as an interim decision but also it's not immediately apparent whether the decision, published on 22 December, are intended to be the reasons for the Deputy President's earlier decision to refuse permission to be represented, her earlier decision on 22 November, sorry, 26 November, in the email, or whether it is a decision in which the Deputy President is dealing with your request, Mr Heathcote, that she reconsider her earlier decision.

PN27

It seems, I think, reasonably clear that it's the latter. That in the decision of the 26th, I'm sorry, 22 December, the Deputy President canvasses things that have occurred after her decision of 26 November. She refers to the digital court book, for example, which was only filed on 1 December. That would suggest that it can't be reasons for a decision given earlier than 1 December. But what do you say about all that, Mr Heathcote? Do you agree that the decision of 22 December is a decision in which the Deputy President is rejecting your invitation that she reconsider her earlier decision of 26 November, you agree with that proposition?

PN28

MR HEATHCOTE: I agree that the - sorry, your Honour - yes, I do; I agree with that proposition.

PN29

JUSTICE ROSS: So I take it that you're in effect - you're appealing both decisions, the earlier email communication of 26 November and the subsequent decision of 22 December?

PN30

MR HEATHCOTE: Yes, I think that's a correct characterisation, sir. Thank you.

PN31

JUSTICE ROSS: Was there anything you wanted to say about that point, Mr Govender?

PN32

MR GOVENDER: No, your Honour, nothing at this point to say.

PN33

JUSTICE ROSS: Thank you. Can I now go, Mr Heathcote, to your submissions in support of your appeal? In doing that, can I indicate that we've had the opportunity to read your submissions and Mr Govender's reply. We have also read through the Court book material, and I note there are some additional pages that have been provided in that regard. We have also had the opportunity to read the digital Court file relevant to the hearing scheduled for this Thursday. That's the Court file material filed by you I think on 1 December. Speaking for myself, Mr Heathcote, there is only one matter that I wanted to clarify from your submissions. So if I can put that to you and then invite you to say whatever else you wish to say without, you know, repeating what you've put in wring, but if you want to clarify or add anything to your submissions. The point I wanted to raise, Mr Heathcote, was about this procedural fairness point, and I want to test my understanding of what you're saying with you, okay?

PN34

MR HEATHCOTE: Certainly.

PN35

JUSTICE ROSS: As I understand it, the essence of your point is that the Deputy President accepted and relied on certain assertions made by a Mr Govender in his submissions of 18 December and took into account ERGT's failure to file materials in accordance with directions the Commission had issued whilst it was represented, and the essence of your submission is that ERGT was not given an opportunity to make submissions about those matters. So I mean I would sort of characterise it that there's a three‑point argument. The first point, the Deputy President's decision was based in part on assertions that were made in the respondent's submissions of 18 December, and also on ERGT's failure to file materials in accordance with the timeline set down in the directions at a time when they were represented. The second proposition in the argument is that you were not afforded an opportunity to respond to the assertions made in the respondent's submission, and nor were you given an opportunity to deal with the Deputy President's reliance on your non‑compliance with the directions. And the third element, or the third limb to the argument, the third point, is that you say that had such an opportunity been afforded then you would have refuted the assertions, and you also set out in your submission - or you provide an explanation for the non‑compliance with the directions. Is that the essence of the procedural fairness point, Mr Heathcote? Have I got that right?

PN36

MR HEATHCOTE: I think you have, sir.

PN37

JUSTICE ROSS: Okay.

PN38

MR HEATHCOTE: The essence of it is there was reliance on assertions that the Deputy President could have been in the position to assess more fully had she given us an opportunity to help her form her view about those things.

PN39

JUSTICE ROSS: Okay. Look, there's one other aspect of both your appeal submissions and also your submissions on the question of whether or not you should be granted permission to be represented before the Deputy President at the hearing on Thursday that I wanted to raise with you. In both instances you rely on the proposition that - or you rely on section 3(g), one of the objects of the Act, which acknowledges the special circumstances of small and medium‑sized businesses. Do you recall that, Mr Heathcote?

PN40

MR HEATHCOTE: Yes, I do, sir.

PN41

JUSTICE ROSS: The evidence that's in the digital Court file, I think it's the witness statement filed by ERGT, suggests that ERGT employs about 200 employees, including - - -

PN42

MR HEATHCOTE: (Indistinct) 199‑something, so yes.

PN43

JUSTICE ROSS: I'm not sure he - I thought - just bear with me for a second, I'll just go to the Court book - yes, that's at 96 of the Court book I think of Mr Millar. So Mr Millar says that the organisation currently has approximately 200 employees, right?

PN44

MR HEATHCOTE: Yes.

PN45

JUSTICE ROSS: So it would seem on the face of it that it's not a small business. Are you asserting that it's a small business, or are you asserting that it's a medium‑sized business?

PN46

MR HEATHCOTE: I'd say a medium‑sized business, sir. I would think small business employer, we're talking 14 or fewer.

PN47

JUSTICE ROSS: Yes.

PN48

MR HEATHCOTE: We're certainly larger than that.

PN49

JUSTICE ROSS: Yes. I would also observe that the Australian Bureau of Statistics defines a medium‑sized business - there's no definition in the Act - but it defines a medium‑sized business as one that employs between 20 and 199 employees.

PN50

MR HEATHCOTE: I see.

PN51

JUSTICE ROSS: So I'm just not sure how you come to the view that ERGT is a medium‑sized business.

PN52

MR HEATHCOTE: Well, even - essentially, sir, we didn't approach it by looking at the ABS statistics, but were looking at the comparison with organisation such as BP, which gets a mention in our submissions because of it being the subject of an earlier decision that Binet DP had been involved in. But our conclusion that it was a medium‑sized business was really based not so much on absolute employee numbers but on the kind of infrastructure that the employer had to manage its workforce. Our understanding of the need for special consideration to be given to those businesses has less to do with absolute numbers and more to do with whether or not some special consideration needs to be given to their capacity to manage its workforce. So our conclusion that it was a medium‑sized enterprise was more based around our assessment of the kind of HR and administration infrastructure that it had rather than absolute employee numbers, but even if we were to go on absolute employee numbers, we're still very close, if not within, the ABS's (indistinct).

PN53

JUSTICE ROSS: Yes. I'm not sure, Mr Heathcote, that "very close" sort of helps you, in the sense that it's a bit like are you a bit pregnant - you're either in or you're out really; you're in one category or you're not. But as I understand it, it's - I'm not suggesting that this becomes fatal to your argument that ERGT is not able to effectively represent itself, which is a separate submission you put, but I'm just going here to your reliance to section 3(g), the object, and speaking for myself, I wasn't sure how that object was necessarily enlivened or relevant in this particular case on the facts, that's all.

PN54

MR HEATHCOTE: Sir, the reliance on it was really our own I guess interpretation of where ERGT sat in terms of its smallness or largeness. We didn't go to the ABS's assessment of it, because we don't see that the Act necessarily gives us permission to rely on the ABS's view of what's small and what's medium‑sized, but nevertheless, even if we were to go there, then we are very close to the ABS's assessment, and as I said earlier, our view about small and medium‑sized and the need to have regard for size seems to us to be more a reflection on the parliament's intention to make sure that organisations of a particular size had - or recognition that organisations of a particular size or range of sizes had challenges that were different to what larger businesses might have, and it seemed to us, and you know, obviously we may stand to be corrected on this, but it seemed to us that the key variable there was not absolute employee numbers but rather the infrastructure you had to operate your business and to take care of those employee numbers.

PN55

JUSTICE ROSS: Yes. Look, I - - -

PN56

MR HEATHCOTE: (Indistinct)

PN57

JUSTICE ROSS: Sorry, Mr Heathcote. I certainly see the force of that proposition if you're looking at section 596(2)(b).

PN58

MR HEATHCOTE: Yes.

PN59

JUSTICE ROSS: That doesn't really turn on particularly employee numbers or size. It really is about, as you put it, sort of infrastructure and capacity.

PN60

MR HEATHCOTE: So for us, sir, just to round this out, our view of it was that given the size of our business I guess from an infrastructure standpoint, and particularly given that it's got a relatively small capacity, particularly in the HR realms, that some consideration should have been given for that. I understand how that crosses over with section 596. Our view of it simply was that the Deputy President looking at us as an organisation should have had some regard for our size and our capacity as she was applying section 596 to us.

PN61

JUSTICE ROSS: Okay.

PN62

MR HEATHCOTE: I don't really think we can take that submission any further than we have.

PN63

JUSTICE ROSS: No. Okay. Look, by email sent by my Chambers on 12 January, we advised the parties that in the event that we ultimately decide to grant permission to appeal and to uphold the appeal, it would be our intention to then proceed to determine the 596 application, that is, the application that relates to the Deputy President's hearing this Thursday, ourselves rather than remit the matter, as we thought that was the most efficient way of dealing with it, and for that purpose we indicated that we wanted you to make submissions today or during this hearing on the question of whether or not ERGT should be granted permission to be represented by a lawyer during the hearing this Thursday. We do that - we want to make it clear we haven't yet made a decision about whether to grant permission or to uphold the appeal, but we think it's the most efficient way of dealing with it. That we'd hear all of your arguments, including, in the event we did uphold the appeal, what we should do next.

PN64

Now, in response to that invitation, Mr Heathcote, you filed a submission, just bear with me a moment, I'll just make sure I've got the right one in front of me.

PN65

MR HEATHCOTE: Is that the document that we filed this morning, sir?

PN66

JUSTICE ROSS: It is. Yes, I'm just making sure - I've read it, I'm just going to get it in front of me.

PN67

MR HEATHCOTE: If you forgive us for ambushing you with it. It was our intention to make things easier, rather than harder.

PN68

JUSTICE ROSS: No, no, that's fine. As I understand it, you're really advancing two broad limbs of argument, in support of your application for permission to be represented by a lawyer in the proceeding on Thursday, before the Deputy President.

PN69

The first is that you say granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. That's your section 596(2)(a) contention.

PN70

MR HEATHCOTE: Yes.

PN71

JUSTICE ROSS: The second is - the second is, sorry Mr Heathcote, the second is that you say that it would be unfair not to allow ERGT to be represented because ERGT is unable to represent itself effectively. That's your section 596(2)(b) contention.

PN72

You go on to say something about (c), and that's really you're not advancing that proposition, you're really putting that forward in the event that Mr Govender says something about that.

PN73

In support of your 596(2)(a) ground, that's that it can be dealt with more efficiently, having regard to complexity, if I take your argument, both the one you've set out in the recent document of 18 January, and what you've said earlier, basically the proposition here is that the substantive matter involves a jurisdictional objection to Mr Govender's unfair dismissal application.

PN74

You say that jurisdictional objections are complex by their nature and that legal representation would enable the matter to be dealt with more efficiently. You set out, at 4.3 of your most recent submission, the reasons why you think it would be complex and at 4.5 you set out why efficiency would be advanced by granting permission.

PN75

Do I assume that you also still rely on your earlier submissions that the grant of permission to be represented by a lawyer would be in conformity with other Commission decisions, including the first instance and appeal decisions in Tracey v BP Refinery?

PN76

MR HEATHCOTE: Yes, sir, that's correct.

PN77

JUSTICE ROSS: Okay. I just want to try and make sure I've got all of your arguments.

PN78

Then on the second point, that is, you say that it would be unfair not to allow ERGT to be represented because it's unable to represent itself effectively, you make the assertion, at 2.6 of your submission of the 18th, that the appellant's incapable of efficiently and effectively presenting its own case or engaging with the evidence or relevant legal questions. You refer to - above that, you refer to the fact that Mr Miller earned his undergraduate degree some 30 years ago.

PN79

As I understand it, just on that point, it's common ground that ERGT employs two human resource coordinators, Ms Garvan(?) and Ms Coleman(?), a human resource manager, Mr McKernan(?), and Mr Miller is the general manager of organisational performance, I think is his title, and he has responsibility for the human resource function, on behalf of the senior leadership team.

PN80

You submit that whilst they're all highly accomplished and capable HR officers, I think is the extract from your appeal submission, they don't have the requisite knowledge or skills to effectively represent the appellant, or ERGT, at a hearing. That's the essence of that proposition, I think.

PN81

Then you set out your submissions about subsection 596(2)(c), in the event that Mr Govender raises it, that's really your reply submissions, at 4.12 through to 4.17.

PN82

Well, for myself, Mr Heathcote, I understand what your submitting, in the event that the appeal was upheld. Was there anything that you wanted to add, either in relation to your submissions in support of the appeal, or your submissions as to why ERGT should be granted permission, in the event the appeal is upheld, why ERGT should be granted permission to be represented in the matter before the Deputy President, this Thursday?

PN83

Is there anything further you wish to say, Mr Heathcote?

PN84

MR HEATHCOTE: No, your Honour. I'm content to rely on the written material we filed and the answers I've been able to give to your questions. I think I risk repeating myself and I don't think - I don't think I need to do that.

PN85

JUSTICE ROSS: All right, thank you.

PN86

Mr Govender, can I go to you? You've also filed a written submission and the essence of it is that - well, you make three points. In relation to the appeal you say, in essence, there was no error. You say that, and I'm assuming that you're making the same submissions on the question of whether, if we did uphold the appeal, whether or not we should decide to grant permission to ERGT to be represented in the proceeding this Thursday.

PN87

Those submissions, both on the appeal and on the other matter, are, you say, the matter is not complex. You characterise it as a relatively simple, factual context. You say you don't accept the assertion that ERGT is not able to represent itself effectively. You say it is not a small or poorly equipped enterprise and that it can represent itself. You also say that an unfairness would result if we did grant permission to ERGT to be represented because it would create an imbalance by providing more advantageous representation to ERGT, as opposed to your position where you're representing yourself.

PN88

Have I fairly characterised your submissions, Mr Govender? And was there anything further you wanted to say?

PN89

MR GOVENDER: Yes, your Honour, and I don't wish to add anything further to my submission.

PN90

JUSTICE ROSS: All right, thank you.

PN91

Is there anything, finally, from you, Mr Heathcote?

PN92

MR HEATHCOTE: No, your Honour. I'm content to leave it there.

PN93

JUSTICE ROSS: All right.

PN94

Look, we're conscious of the need to determine this matter quickly, given that Binet DP is hearing the substantive matter this Thursday and we - - -

PN95

MR GOVENDER: Your Honour?

PN96

JUSTICE ROSS: Yes, Mr Govender?

PN97

MR GOVENDER: Sorry, your Honour, I think it's on the 22nd, which is the Friday.

PN98

JUSTICE ROSS: It's on the Friday, is it? Okay. Well, in nay event - - -

PN99

MR HEATHCOTE: Yes, I believe that's the case, your Honour.

PN100

JUSTICE ROSS: Okay, no problem. Look, in any event, we're conscious of that timeline and we'll hand down our decision either late on Wednesday or on Thursday of this week. So we'll determine the matter prior to the hearing before Binet DP.

PN101

My associate has each of your email addresses and we'll send you a copy of the decision by email.

PN102

Is there anything further?

PN103

MR GOVENDER: No, your Honour.

PN104

MR HEATHCOTE: Not from us, sir.

PN105

JUSTICE ROSS: All right, thank you. Well, thank you both for your submissions and your time - well, this morning your time and we will issue - we'll reserve our decision and we will issue our decision in the course of the next couple of days.

PN106

Thank you very much, we'll adjourn.

PN107

MR GOVENDER: Thank you, your Honour.

PN108

MR HEATHCOTE: Thank you, your Honour.

ADJOURNED INDEFINITELY [12.33 PM]