PN1

THE ASSOCIATE: C2021/8150, section 604 appeal by Saki Elefantis and the Trustee for the Timber Ridge Unit Trust, for hearing.

PN2

VICE PRESIDENT CATANZARITI: Good morning. I have on the Bench with me, this morning, Deputy President Asbury and Commissioner Bissett.

PN3

Could I have the appearances, please?

PN4

MR C DOWLING: Good morning members of the Full Bench, it's Mr Dowling here. I seek permission to appear, with my learned friend Mr Bromberg, for the appellant.

PN5

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowling.

PN6

MR N BURMEISTER: Good morning, Vice President, Deputy President and Commissioner. My name is Burmeister, I seek permission to appear for the respondent, which is the Trustee for the Timber Ridge Unit Trust, which I will, for the sake of the transcript recording, and everybody else, refer to as Ozcut today.

PN7

VICE PRESIDENT CATANZARITI: Thank you. Permission to appear is granted to both parties. The Full Bench has had the opportunity to look at the material. Having regard to the material that's been filed, we don't need to be addressed in relation to whether permission to appeal should be granted. We are of the view that there are matters of importance in this matter and permission should be granted, so we'd like the argument to be focused on the actual merits of the appeal. We do thank the parties for the comprehensive written submissions and now invite some short oral submissions.

PN8

Thank you, Mr Dowling.

PN9

MR DOWLING: Thank you, Vice President. I take it, from your response to me earlier, that you can see and hear me clearly, but I should just confirm it before I start.

PN10

VICE PRESIDENT CATANZARITI: We can. We're off camera but we can see and hear you.

PN11

MR DOWLING: Thank you, very much, Vice President.

PN12

The appellant to this appeal, Mr Elefantis, was found to have been unfairly dismissed. There is, as the Full Bench would be aware, no challenge to the finding, by Wilson C, that the dismissal was unfair. The appeal concerns two grounds of appeal directed only at the level of compensation due to Mr Elefantis, as the result of his unfair dismissal.

PN13

In summary, the first is that the Incolink payments received by Mr Elefantis, after his termination, should not have been taken into account in assessing his compensation. The second is that the Commissioner, in assessing compensation, made an error in his assessment of how long the appellant would have remained in employment, had he not been unfairly dismissed.

PN14

Can we lay some very brief factual and legal foundations before coming to the two grounds but, before I do that, can I formally tender the affidavit that was filed, together with the written submissions, on 28 January of this year, that is the affidavit of Ms Barnes-Wheelan, affirmed on that day, 28 January 2022.

PN15

VICE PRESIDENT CATANZARITI: Yes, thank you.

PN16

Is there any objection to that, Mr Burmeister?

PN17

MR BURMEISTER: There is, Vice President.

PN18

VICE PRESIDENT CATANZARITI: Yes, what's the objection?

PN19

MR BURMEISTER: So that affidavit, the affidavit dated 28 January 2022, leaving aside the formalities, as I see it, there are three substantive pieces of evidence that are sought to be led, call that further evidence in this appeal, because section 607 applies. Paragraphs 5 and 6 is the first species, no objection is taken to that evidence. That is evidence that relates to matters that happened after the first instance decision, and there can't be any criticism aimed at the appellant for not having led that evidence at first instance.

PN20

Paragraph 7 of Ms Barnes-Wheelan's - I should go back a step, Full Bench. Of course the principles regarding the admission of further evidence are well known. I can direct the Full Bench to another Full Bench's decision in - - -

PN21

VICE PRESIDENT CATANZARITI: We're very familiar with the principles, just keep going with your objection.

PN22

MR BURMEISTER: Thank you for that indication, Vice President.

PN23

In relation to paragraph 7, there is no temporal limitation on that evidence and it fails, in my submission, each of the three tests that the Full Bench ought to apply, as to whether the further evidence should be adduced.

PN24

That is, firstly, there's no suggestion that that evidence couldn't have been obtained or adduced without reasonable diligence for use at first instance. Secondly, it must have a high degree of probative value. In my submission, it has very little probative value. And, thirdly, it must be credible. In my submission, there's nothing about that evidence that has any credibility.

PN25

In relation to paragraph 8, I have no objection to that evidence. Then, in relation to paragraph 9, this is the evidence that seeks to bring in the deed of trust, the Incolink deed of trust, again, there's no evidence before the Full Bench as to why that evidence wasn't before the Commission at first instance. It's quite apparent that, had even reasonable diligence been applied, that evidence could have been before the Commission at first instance. For that reason that evidence should not be allowed in as further evidence on appeal.

PN26

Those are my brief submissions a to Ms Barnes-Wheelan's affidavit.

PN27

VICE PRESIDENT CATANZARITI: Thank you.

PN28

Mr Dowling, anything you want to say about that, before we take a short adjournment?

PN29

MR DOWLING: Thank you, Vice President, just a two - as I understand it, the objections are limited to paragraphs 7 and 9. I should clarify, in relation to paragraph 7, the evidence below was that the appellant had applied for four positions, at the time of the hearing. Seven is intended to update the Commission to advise them that that is now seven in total, since the termination, apart from the casual employment that he obtained, which is identified at paragraph 6 and to which no objection is taken.

PN30

My friend is wrong to say that that evidence should have been led below, that is simply updating evidence. The evidence below was clear and Mr Elefantis was cross‑examined on it, but the evidence was clear that he'd applied for four positions. This is an endeavour to update that information to make it seven in total.

PN31

As to - - -

PN32

VICE PRESIDENT CATANZARITI: Just a second.

PN33

Mr Burmeister, does that make any difference to you?

PN34

MR BURMEISTER: It makes a different to my ego, in being called wrong, Vice President, and I say that because I was led into error by the drafting or paragraph 7, which has no temporal relationship at all with the subject matter in paragraph 7. If that is to be the evidence, and if it's to be supplemented by evidence from Mr Dowling, on a second‑hand hearsay basis, then that objection would be withdrawn.

PN35

VICE PRESIDENT CATANZARITI: All right, thank you.

PN36

All right, we'll take that as being withdrawn at this point. Yes, let's go on to the other objection, Mr Dowling?

PN37

MR DOWLING: Thank you, your Honour. As to the other objection, there is no doubt, and it's clear between the parties, that this issue was before the Commissioner. There's no doubt that we raised the relevant clauses of the deed and the fund, in our submissions, filed on 28 January. No objection was taken at the time. No objection was taken in the written submission. We say, in the circumstances where the significant issue in this case turns on the nature of the payments, it would be wilfully blind for the Commission, taking into account the significance of the issue, to not have before it the deed which outlines that issue.

PN38

Of course the Commission is entitled to inform itself in any way that it considers appropriate, under section 590. Of course the rules of evidence don't apply, under section 591, but to suggest that this Commission should determine an issue that it has already recognised is of significance, without the deed before it, we say is not something that should be accepted. We can tell you, as is probably obviously from the transcript, that the issue arose very late in the hearing and that might provide, or does, in our submission, some explanation as to why the deed wasn't provided. But there's no dispute that the issue was squarely raised. The issue and the relevant clauses of the deed were squarely raised in the submissions, on 28 February of this year and in all of the circumstances, we say, that the Commission should not be wilfully blind as to the proper terms of the fund and should decide the significant issue with the significant benefit of that fund before them.

PN39

VICE PRESIDENT CATANZARITI: Thank you.

PN40

Having regard to the fact that the members of the Bench are not in the same jurisdiction as myself today, we'll take a short adjournment and we'll come back shortly. Thank you.

PN41

MR BURMEISTER: Vice President, may I, before the Full Bench adjourns, may I just respond to something my learned friend just raised?

PN42

VICE PRESIDENT CATANZARITI: Yes.

PN43

MR BURMEISTER: I just wanted to clarify, for the Full Bench, that my learned friend just referred to the written submissions and then referred to them as the written submissions dated 28 January '22, those written submissions, of course, were not before the Commission at first instance, those are the written submissions in the appeal.

PN44

VICE PRESIDENT CATANZARITI: Yes, I understood that, Mr Burmeister. It could not have been before the member at first instance. Thank you. We'll take a short adjournment.

SHORT ADJOURNMENT [10.11 AM]

RESUMED [10.15 AM]

PN45

VICE PRESIDENT CATANZARITI: Thank you. We've considered the objection, we propose to allow the documentation in. That being the case, we'll mark it exhibit A.

EXHIBIT #A WITNESS STATEMENT OF MS BARNES-WHEELAN

PN46

Thank you, Mr Dowling.

PN47

MR DOWLING: Thank you, Vice President.

PN48

As I indicated, can I just give the Full Bench some very brief, knowing that everyone has read the material I will be very brief, can I clarify that the appellant, Mr Elefantis, was employed by Ozcut, the respondent, for 17 years.

PN49

It was at the start of 2021 that Ms Thompson commenced as the new managing director and introduced some changes to the operation of the respondent, including the implementation of some new timesheet process.

PN50

On 11 May 2021 Mr Elefantis and Ms Thompson engaged in a heated exchange at Ozcut, about or including matters about the failure of Mr Elefantis to submit a timesheet that week. The result of that exchange was that Mr Elefantis was summarily dismissed on 11 May 2021. The letter of termination is set out in paragraph 9 of the decision, which his contained behind tab 3 of the appeal book.

PN51

Mr Elefantis filed a claim for unfair dismissal, on 10 June 2021, and some of these dates are important, for reasons we will come to. So 11 May is the termination, 10 June 2021 was the filing of the application and on or about 22 June 2021 Mr Elefantis made a request, to Incolink, for the benefits paid on his behalf during his employment. He subsequently received four payments and received them, relevantly, before the matter was heard and determined. They were payments in the sum of $8000, $8000, $9782 and then the last payment of $40,335. The last of t hem was received on 16 August 2021. So, as I said, before the matter was heard and determined.

PN52

The matter was heard on 31 August 2021 and 17 September of that year, and the decision, published on 10 December 2021. As I said, the Commission determined that Mr Elefantis' dismissal was unfair. Having concluded that the dismissal was unfair, the Commission assessed the question of compensation and he did that, at paragraph 62 to 102, and we will take you to some of those paragraphs. As I said, the decision is behind tab 3 of the appeal book and runs between pages 17 to 47.

PN53

There is, the Commission members might have seen, a table setting out the Commission's calculation of compensation included at paragraph 99 of the decision. Ultimately, the Bench will be aware, the decision provided no award of compensation for Mr Elefantis, on the basis that the loss he suffered was entirely offset by the benefits he received form Incolink.

PN54

Can we than, as the second foundational issue, give the members of the Full Bench some information in respect of Incolink. It is a joint venture between employers and unions, in the Victorian commercial building industry. Incolink administers funds under trust deeds and agency agreements. Contributions are paid in Incolink by participating employers, of which the respondent was one, for the benefit of their employees, under the terms of an enterprise agreement, in normal circumstances, and that was the case here. Incolink then provide employees of those employers with those benefits, in accordance with the terms of the trust deed.

PN55

The relevant enterprise agreement here was the Timber Ridge Unit Trust, the trustee for trading as Ozcut, and the CFMMEU, Victorian Construction and General Division, Concrete Sawing and Drilling Enterprise Agreement, 2016-2018.

PN56

Now, my instructor provided a copy of that agreement to the Chambers of your, Vice President - - -

PN57

VICE PRESIDENT CATANZARITI: Yes, we have that this morning. I just circulated and made sure the members of the Bench now have it as well.

PN58

MR DOWLING: Thank you very much. We do that out of completeness. Both the appellant and the respondent refer to it in their written submissions. Can I just identify, without taking the Bench to it, that clause 22 of the agreement provides that Ozcut will be a member of the Incolink fund and shall pay contributions to the fund, on behalf of all of its employees covered by the agreement, I think with the exclusion of apprentices, on a weekly basis, in accordance with the trust deed.

PN59

The trust deed, and we need to go to it very briefly again, which is the annexure that was the subject of the objection, it is annexure EB2 to the affidavit of Mr Barnes-Wheelan, if we could take the Bench to three clauses, please, of that deed?

PN60

The first, clause 4, which is found on page 10 of the trust deed, and the Bench will there see, at 4.1, 'All contributions made by a member will become part of the trust fund', and 4.2, 'Subject to clause 6 -', which we'll come to, 'each member must make the following redundancy pay contribution to the fund, in respect of each worker, from 1 April '04, the sum of $55.40', and then there's a provision, at sub (2) of 4.2, 'for that to be increased pursuant to the consumer price index'.

PN61

I can tell the Bench, and nothing turns on it, if my friend has any concern, that that, for Mr Elefantis, had increased, relevantly, to $84.

PN62

Can when then next take the Bench over the page to page 11, and clause 6, where the Bench will see:

PN63

Subject to clauses 6.3 and 6.4, the weekly redundancy pay contribution, payable under clause 4, must be paid for any week of Monday to Friday in which a worker is entitled to be paid wages by the member, in respect of the work performed on a construction site.

PN64

You will see, without us needing to take the Bench to it, that 6.3 and 6.4 provide some exception to that, in circumstances where all of the period of the week might not have been worked. But that is the obligation to pay, in respect of the working week, for a worker on a construction site. We say there's no dispute and we anticipate that the respondent says there's no dispute, because it relies on the payments, that Mr Elefantis was, relevantly, covered by the enterprise agreement; was, relevantly, entitled to the benefit of clause 22 and was, relevantly, a participant in the trust deed and that his employer, the respondent, was obliged to make the payments, pursuant to clauses 4 and 6.

PN65

Can we then take, lastly, the Bench to page 15 of the trust deed, and what it there provides, in terms of the benefits payable to workers and the worker's account.

PN66

Firstly, can we take the Bench, please, to clause 9.1, which appears about point 6 of the way down page 15, which there provides:

PN67

Where the employment of a worker, other than an approved worker, is terminated for any reason, then upon the trustee receiving a written request for the worker, or a person claiming through or under the worker, in the case of the workers' death -

PN68

That's the 'claiming through', in the case of the workers' death:

PN69

at or after the time of the termination of employment, in a form prescribed by the trust deed, and the worker is still out of work at the time the worker submits the written request to the trust deed, the trust deed must pay to the worker, or person claiming, the lessor of -

PN70

And then it sets out the two amounts at subparagraphs (1) and (2). Emphasising, going back to the first sentence of 9.1, that the termination can be for any reason.

PN71

Likewise, in respect of 9.1(a), which provides a slightly different calculation but, again, it provides:

PN72

Where the employment of the worker is terminated for any reason.

PN73

Over the page, at 16, 9.2, 9.3, 9.4 and 9.6 provide some other and additional circumstances in which a payment might be provided. Sorry, I withdraw what I said about 9.2. 9.3 provides that an entitlement to the payment, if the worker ceases to be employment in the industry. 9.4, where the worker retires and 9.6, in the unfortunate circumstances where the employment comes to an end as a result of the worker's death.

PN74

9.2, and it might have some very peripheral relevance, provides that the worker - if the worker remains out of work for four consecutive weeks, commencing the day after the termination of his employment, the worker is entitled to withdraw the balance, if any, of his account.

PN75

Can I just interpolate, and I appreciate I'm saying this from the Bar table, but the circumstances of this case, as I've described earlier, there was a payment of $8000, $8000, $9000 and then the balance of $40,000. I am instructed, and I don't think anything turns on it, so if my friend has any objection to me providing this information I can understand it, but I emphasise that not very much turns on it. There was some changes, during the period of the COVID pandemic that instead of the entitlement to receive the entire amount of the fund, that amounts were paid, over a period of time, I think to deal with, members of the Full Bench, the concern that there might be a run on the fund, in circumstances where a lot of people were either retiring or ceasing employment in the industry, or leaving for some other reason.

PN76

I raise that only to explain why it was $8000, $8000, $9000 and $40,000, but for the questions of principle that the Bench has to determine, nothing turns on that. All of the money was ultimately received by Mr Elefantis, before the compensation was being assessed.

PN77

So it's those clauses we highlight at this point. We want to say, because our friends raise it against us, something very briefly about how the scheme sits with the Act and the relevant award in the agreement. The Bench will be familiar, of course, with the redundancy entitlement contained within the National Employment Standards. The National Employment Standards redundancy pay entitlement did not apply to Mr Elefantis during his employment with Ozcut, and that was because there was an industry specific scheme that applied instead, and that's section 123(4) that provides that. The Building and Construction General Onsite Award, 2020, at clause 41, provided and set out the industry specific scheme. That award, and we do this very much for completeness, that award also provides that:

PN78

An employer may offset an employee's redundancy pay, entitled under the award, in whole or in part by contributions to a redundancy pay scheme.

PN79

The Incolink scheme, as our friend sets out in his written submissions, is an eligible scheme, under the clause of that award.

PN80

The Incolink scheme, it should be clear, doesn't replace Mr Elefantis' entitlement to redundancy, under the award, but the contributions to the Incolink scheme will offset any liability that Ozcut would have, in the event that Mr Elefantis was made redundant. We say, of course, and we'll come to it, that he wasn't.

PN81

The Ozcut agreement incorporates the scheme by reference. As I say, we should make very clear, it seems contrary to what my learned friend might say, Mr Elefantis was not made redundant, he was not eligible, under the industry specific redundancy scheme, to receive a redundancy, he was dismissed for serious misconduct, on the basis of his refusal, consistent with the letter of termination, to complete a timesheet as part of his employment. He was not redundant, within the meaning of section 119, nor was he made redundant, under the aware or the agreement. That was the case, certainly, there seems to be no dispute, at the time he received the payments from the Incolink fund, in that period of June to August.

PN82

Despite, of course, not being made redundant, it is clear that Mr Elefantis was eligible to receive, and did receive, the Incolink payments. That is so, we say, because the scheme is something different to but certainly more beneficial and broader in purpose than simply a redundancy payment. It stands alone and is governed by the terms of the Incolink Trust Deed, including those terms at 4, 6 and 9, that we've taken you to.

PN83

Can we then, lastly, as foundational matter, just identify and make some comments about section 392 and, particularly, 392(2)(e)? In our submission, it should, at least, be uncontroversial that the purpose of compensation, under section 392, is to compensate an unfairly dismissed employee, in lieu of reinstatement, for losses reasonably attributable to the unfair dismissal, within the bounds of the statutory cap on compensation that is to be applied.

PN84

Secondly, and most importantly in the present circumstances, it is also well established that the calculation is intended to put the applicant in the financial position he or she would have been in, but for the termination of their employment.

PN85

That's a foundation or principle we say. We've relied on the Ellawala decision, which has been referred to many times in this Commission and the Bench will find that behind tab 3 of the cases provided by the appellant. We did, for completeness, provide a copy of Double N Equipment Hire, which is behind tab 2, which is a decision of a Full Bench of the Commission, in 2016, simply adopting Ellawala just to update the application of the principle. But we say there can be no dispute that the calculation is intended to put the applicant in the financial position that he or she would have been in, but for the termination of their employment.

PN86

None of that is surprising, it's entirely consistent with the principles governing the assessment of compensatory damages, which we'll return briefly, that an injured party should receive compensation in a sum which, so far as money can do, will put the party in the same position that he would have been in, if the contract had been performed or if the tort had not been committed. A relevant corollary being that the plaintiff cannot recover more than they had lost.

PN87

There's no dispute between us, it seems, that the Commission was correct to identify the Sprigg formula, in determining the compensation, and that is set out by the Commissioner at paragraphs 82 to 83. But, again, it does not appear to be any dispute between us that the formula should be read together with the considerations identified in section 392. The Sprigg formula is not a replacement for the statutory exercise that the Commission is required to conduct, under section 392.

PN88

We said, as part of our foundational matter, just one last thing, and that is, something more specific about section 392(2)(e) as part of those considerations, under section 392. Section 392(2)(e), clearly enough, directs the Commission to take into account the amount of any remuneration earned by the person, from employment or other work, during the period between the dismissal and the making of the order for compensation.

PN89

Can we make these observations about that subsection before we come to deal with the first part of the first ground, and that is subsection (2)(e) is concerned with remuneration. The remuneration must have been earned by the person, from employment or other work and, finally and importantly, the remuneration must have been earned since termination.

PN90

Now, that leads us to the first aspect of ground 1. That is, that the Incolink payments were remuneration earned during the employment and not earned since the termination. We will say, additionally, and I'll come to it a little later, that given the exercise involves putting Mr Elefantis in the position he would have been in, but for his unfair dismissal, the Incolink payments should not be deducted, because they would have been available to him at the end of any entitlement period assessed by the Commission. That must be so, we say.

PN91

But returning to the question of the Incolink payments more directly, as we understand it, it is accepted by the respondent that the Incolink contributions form part of the remuneration paid for the appellant's service, pursuant to the agreement. Our friend is shaking his head, we say – we should explain why we think it's accepted, we say that because the respondent, as we understand it, says that this amount of remuneration should be deducted, under 392(2)(e), and was properly deducted. Now, if it's not remuneration, then perhaps it should not have been deducted at all, under 392(2)(e) on that basis, but I'll let my friend speak to what he says.

PN92

If it is a proposition that our friend disagrees with, can we make it good then? Remuneration ordinarily and sensibly is what an employer provides to an employee, as consideration for the employee's services. It's not defined in the Act, however it's been discussed generally in the authorities, of course, and we have, in our written submissions, and the reference is paragraph 31, set out references to those authorities. But can we say that what has been said clearly enough is that remuneration is in respect of work done, not money from other sources and unrelated to work done. It has a wider meaning than wages and salary. It might include tips or commissions or bonuses, so long as they are at least customary and capable of being estimated, as well as non monetary benefits, such as accommodation, board, and motor vehicle use, in some circumstances. Remuneration also can include the payment of superannuation contributions and workers compensation payments.

PN93

So we say there really shouldn't be any dispute, but we're happy to listen to what our friend has to say and respond to it, about whether the payments were, properly, remuneration.

PN94

The question then of whether the Incolink payments are earned, is the critical one and therefore - when they were earned, sorry, and therefore the point at which, if at all, they should be taken into account, under subsection (2)(e).

PN95

The section itself provides that - it's concerned with remuneration between the dismissal and the making of the order, and that's consistent with step 2 of the Sprigg formula.

PN96

We have, in our written submissions, and some issue is taken with it, set out that 'earned' is not defined in the Act, nor has its meaning, to the best of our researches, been the subject of any decisions, under section 392(2)(e), but on those circumstances, of course, it is proper and ordinary to give it its natural meaning. We identified, in the written submissions, and it's worth repeating, that in the Oxford Dictionary it's provided as - the meaning provided as:

PN97

To do work or render service in return for, to receive or be entitled to, through work or another activity.

PN98

And we've set out the Macquarie also as, relevantly:

PN99

To gain by labour or service.

PN100

The concept, not surprisingly, reflects ordinary contractual principles of consideration, as I said. That is, an employee provides their service in exchange for the employer paying to them an agreed amount of remuneration. Relevantly, it is upon the provision of that service that the employee earns the remuneration. It can only be earned during the course of the employment and not after the employment came to an end.

PN101

Not surprisingly, again, of course, the concept of remuneration may differ from the concept of receiving it and the two, in normal circumstances, are not contemporaneous. An employee may earn an entitlement to be paid remuneration in the hour that he or she works, but will not usually receive the payment until the end of that day, the end of that week or, possibly, the end of that month. They might be paid a month in arrears, for example.

PN102

It is quite common that remuneration earned during the employment relationship might be received by the employee since the termination, after the employment has ended. Indeed, in respect of most, if not all, final termination payments, they might include wages that were earned during the employment but are being paid, effectively, since the termination. There's no sensible suggestion, as we see it, that they could be deducted under section (2)(e).

PN103

Remembering, of course, where we started a little while ago, that there is an obligation, under clause 22 to pay into the Incolink fund and to make the payments, consistent with clauses 4 and 6 of the scheme. In those circumstances, even though the monies might not be received after the employment relationship has come to an end, in our submission, the Incolink payments are earned during the employment. The error we point to is the error of the Commissioner below determining that the Incolink payments were remuneration, earned from employment since the termination and therefore taken into account, under 392(2)(e).

PN104

To make good that proposition, apart from identifying the ordinary meaning of the words and the way the scheme works and the way the amounts were paid, can we also identify a number of analogues, for the assistance of the Full Bench? The first of those we have provided behind tab 6 in the cases that we provided yesterday, to the Full Bench. The decision behind tab 6 is a decision of his Honour Beach J of the Victorian Supreme Court, in Papadopoulos v MC Labour Hire.

PN105

Now, we rely on this for two propositions, so I will have to bring the Commission back to it. But, as this point, I just want to identify what's said, and these are dealing with Incolink payments. We accept they're dealing with Incolink payments not in respect of the redundancy payments, but in respect of another form of payments, still under clause 22, but perhaps I can explain, by reference to the decision. If the Bench goes to the decision of Papadopoulos?

PN106

VICE PRESIDENT CATANZARITI: Yes, we have that, Mr Dowling.

PN107

MR DOWLING: Thank you, very much, Vice President.

PN108

You'll see, the first paragraph, there's a description of Incolink as a joint venture between employer associations and unions, in the commercial industry, and how that Incolink administers a number of funds, under the Trust Deed and Agency Agreements, and how the funds are paid into Incolink by employers for workers, under the terms of an enterprise agreement, mainly a workplace agreement, and you've already heard, in the present circumstances, they are paid pursuant to the Ozcut Enterprise Agreement.

PN109

Can I direct your attention to paragraph 4, still on page 1? That's where his Honour Beach J says:

PN110

While counsel for the 1st defendant sought to establish, from an internet site, during cross‑examination of an employee of Incolink, the payment of Incolink could be made voluntarily. But probabilities, as was fairly conceded by the 1st defendant, during argument, are that the premium was paid, pursuant to the terms of an enterprise agreement or a workplace agreement or pursuant to some other contractual obligation.

PN111

So accepting what we know in this case is that they are paid pursuant to an enterprise agreement.

PN112

Paragraphs 14 and 15 are the next point I want to take the Bench to and there his Honour Beach J, referring to Brereton, Watson and Ramsey JJ, said, in the second sentence, at paragraph 14:

PN113

If the Incolink payment was made as result of the purchase of an insurance product required to be purchased because of an EBA or workplace agreement then, by his work, the plaintiff bought his entitlement to the Incolink payment.

PN114

Then going on, at 15 - sorry, skipping over that balance of 14 and going on to 15:

PN115

I'm not persuaded that the premiums were paid, other than pursuant to a contractual obligation, having regard to the evidence of Ms Garcia. In my view the (indistinct) suggests that such premium as was paid by the 1st defendant was paid pursuant to a contractual obligation enforceable at the (indistinct) of the plaintiff. Further, in any event, the payment -

PN116

Sorry, I'll come back to that last sentence of 15, but I don't need it for the present purposes.

PN117

Then to 17, referring to the payment:

PN118

Further, in any event, it was not paid as some discretionary payment or act of grace, it was payable because the plaintiff had, by his work, bought his entitlement to it.

PN119

That's the important purpose for the reason presently that I want to take you to Papadopoulos, and that is that, 'The plaintiff had, by his work, bought his entitlement to it'. So he had earned it, he was entitled to it, under the agreement. He had, by his work, in our submission, earned the entitlement and that was the way it was properly approached, as a matter of principle we say. If nothing turns on the difference between these form of Incolink payment and the form of Incolink payments paid to Mr Elefantis, and I'll come back to that. But, as a matter of principle, it was provided for by the agreement and it was earned as the result of his work.

PN120

We have, additionally, provided - can I also make good this proposition? I don't need to take the Bench to this decision, but we have provided it for your benefit, and this is the decision of Amiker v Latts(?), a decision of the High Court, reported at volume 260 of the Commonwealth Law Report. It's paragraph 104.

PN121

They were there dealing with whether to reduce compensation by entitlement to a pension scheme, or superannuation scheme, and in examining the entitlement, at paragraph 104, their Honours Bell, Gabel, Nettle, Gordon and Edelman JJ said this:

PN122

The point is amplified when the nature of that converted capital asset is understood. Mr Latts'(?) rights, under part 5 of the Superannuation Act can be conceptualised because Mr Latts admitted, as delayed remuneration for work that Mr Latts has carried out. That asset is intrinsically connected to earning capacity, representing, as it does, a species of remuneration financial rewards for work.

PN123

Again, we raise it at a level of principle that it is the reward for work, and that is so here for Mr Elefantis. It is a reward for his work. The employee, here Mr Elefantis, earns the remuneration at the time work is carried out, even where the receipt of that remuneration might be delayed.

PN124

In those circumstances we say that it is clear, form the trust deed, that Mr Elefantis, and all of the circumstances in the agreement, had earned and was entitled to the Incolink contributions and was entitled to them, as it transpires from clause 9, whether he was unfairly dismissed or not.

PN125

The respondent, from paragraph 25 in its written submissions, says it's incorrect to asset that the contributions were earned prior to dismissal. We say that proposition should be directed - should be rejected, I'm sorry.

PN126

One of the bases upon which it says that is that we have, in it's submission, conflated 'earned' with 'accrue'. Can we make clear that, in our submission, those two concepts are not mutually exclusive. One can earn and accrue an entitlement and one earns and accrues wages by each hour of the day that they work, but may not receive payment, as we've already said, at the end of the day or the week or the month.

PN127

The respondent also says that some meaning can be derived from the term 'earnings', in particularly at section 328 and 332. We don't accept that. We say, really, nothing can be drawn, and we'll come to it now, in the context of the question that this Bench has to answer, under section 392(2)(e), from an examination of the noun 'earnings', under 332 or 328, with the verb 'to earn', particularly in respect of 392.

PN128

There is an example provided by our learned friend, in respect of section 328, which, if the Bench is not familiar with it, provides a guarantee of annual earnings, under the Act. Simply we say, as a mechanism by which an employer can set or guarantee a minimum annual wage. It does not detract, in any way, from the applicant's submission that remuneration is earned by the work and by the performance of the contract the employees service.

PN129

Indeed, it appears that section 328(2) is consistent with what we say because it allows the employer to reduce the guaranteed amount where the employee is terminated before the end of the guarantee period, by reference to the period of time where the employee did not render service. But, clearly, it's directed at payment in exchange for the rendering of service.

PN130

But, ultimately, we say the respondent makes no attempt to grapple with the appellant's submission about genuine - about the circumstances in which this amount was earned, under clause 22, and by operation of clauses 4 and 6 of the trust deed, and the payment, by operation of clause 9, and it is, in all of those circumstances that we say, when properly assessed, the error is taking into account the Incolink payments, as a payment earned since the termination of employment.

PN131

And, of course, for reasons we'll now come to, the compensation calculated is intended to put the applicant in the financial position he or she would have been in, but for the termination of employment. That means, in the assessment of compensation, that payment should not be taken into account in any other way.

PN132

The Full Bench would have seen we spent some time in our written submissions saying why the payment should not be taken into account in any other way under, for example, 392(2)(g). We do that for two reasons. One, we don't want the Full Bench to reach any conclusion that, 'Well, perhaps if it wasn't to be taken into account, under 392(2)(e), it could have been taken into account, under 392(2)(g)', and therefore it's an error that might not be of any practical moment and therefore reject the ultimate submission of the appellant. Or, alternatively, and more appropriately we say, if the Bench accepts the error by the Commissioner in taking into account, under 392(2)(e), and determines to exercise the discretion afresh and assess the compensation, we want to satisfy members of the Commission that it should not only not take it into account, under 392(2)(e), but should not take it into account in any alternative way, particularly under 392(2)(g).

PN133

Can we make very clear two defining features about the Incolink scheme that are relevant to how it should not be taken into account, under 392(2)(g). The first is that, as we've already identified, hopefully clearly, that contributions are made by the employer in accordance with the agreement and they form part of, in our submission, the remuneration or consideration paid to the employee in return for the employee's service.

PN134

But, secondly, although the Incolink scheme is sometimes referred to as a portable redundancy scheme, an analysis of the scheme reveals that the payments from Incolink can be withdrawn in a range of circumstances, including, as we've already said, for any reason: resignation, retirement, death, but, critically, in our submission, a participating employee will, in all cases, ultimately be entitled to receive, at some point during their working career, the full balance of the benefits in their workers account.

PN135

Now, remembering that the Bench is endeavouring, in the exercise of compensation, to restore Mr Elefantis to the financial position he would have been in, but for the dismissal. But for the dismissal, in the present circumstances, Mr Elefantis would have still been entitled to the amounts held in his workers account, whether it was by way of unemployment, redundancy, retirement or death.

PN136

Now, to make good this point, because it is concisely and precisely dealt with by Asbury DP, in another matter, take the Bench to that decision behind tab 5 of our list of authorities, and that's the decision of Rankin v Pileworks.

PN137

VICE PRESIDENT CATANZARITI: Yes, we have that.

PN138

MR DOWLING: Thank you, Vice President.

PN139

Can I take the Bench to paragraph 85, where the Deputy President was considering the question of compensation and, particularly, under the head we're now discussion, which is 392(2)(g), and you were there, Deputy President, dealing with the BERT Scheme, which you will know, but other members of the Bench might not, is the Building Employees Redundancy Trust, which you will know but other members might not, that it operates in a similar way to the Incolink scheme that you've seen, and you there say, four lines down, at paragraph 85:

PN140

I also do not intend to make a deduction for redundancy payments the applicant may have accessed from BERT, on the basis that those payments would have been available to the applicant if he accessed them at the point at which I have estimated his employment would have ended.

PN141

That's precisely so here.

PN142

Now, the Commissioner below estimated that the period of employment of Mr Elefantis would have continued for a period of six weeks. We'll have something about that, briefly, in ground 2, but assuming, for arguments sake, for the moment, that his employment continued for six weeks, there is no dispute, in our submission, that at the end of that six week period Mr Elefantis would have been entitled to receive the benefits, under the Incolink scheme, in the same way described by her Honour, Asbury DP, on the basis that those payments would have been available to the applicant if he accessed them at the point at which I have estimated that his employment would have ended. So, at the end of that six week period.

PN143

That, we say, is not only logical and consistent with principle and consistent with the scheme in the Act and consistent with the desire to put the applicant in a position he would have been in, but for the termination, we say it is right and should be applied in the present circumstances.

PN144

Of course, it might be said, too, that it demonstrates the absurdity of the position for which the respondent contends, and that is had an employee, or had Mr Elefantis chose not to draw down on his Incolink entitlements after the unfair dismissal was heard and determined, there can be no dispute, it seems, given our friends rely on (2)(e), that he would have been entitled to them.

PN145

Now, that does not, in our submission, reflect a sound approach or a sound principle. Either they are taken into account or not, and you can't, by the benefit or misfortune or good fortune of timing, say that they might fall under (2)(e) in some circumstances and not others.

PN146

Can we nextly, but lastly, in respect of this ground of appeal, make good what we say, by some reference to the approach to assessing compensatory damages. We do this because we say the approach to section 392 is consistent with the approach to compensatory damages and we think, in our submission, respectfully, that it would assist the Commission to see how dealing with compensatory damages, payments of this kind have been taken into account.

PN147

Can I do that by returning to Papadopoulos, which was that decision behind tab 6 of the cases? Do the members of the Full Bench have - - -

PN148

VICE PRESIDENT CATANZARITI: Yes, we have.

PN149

MR DOWLING: Thank you, Vice President.

PN150

Now, I don't need to return you to paragraphs 1 and 4. I want to draw attention, this time, to paragraphs, firstly, 7 and 8 where there his Honour Beach J says:

PN151

The first of (indistinct) is distinguishable because Mr Papadopoulos does not take out or pay for the insurance. However, Australian authority, in relation to whether superannuation payments and pensions of various kinds should be taken into account in the assessment of personal injury have not upheld this distinction.

PN152

He then extracts Brereton J, in Watson v Ramsey referring, firstly to the superannuation scheme but if I can take, and I don't think it does a disservice to the extract, the Bench to the bottom four lines of the extract:

PN153

It is payable simply and solely because the employee has, by his work, bought his entitlement to it. If it were not paid and he sued for it, the fact that he had recovered damages for his injury from his employer or anyone else could not, conceivably, be pleaded in bar to that action.

PN154

The same applies here. If, for example, Mr Elefantis had received compensation, not drawn down any payment, and he sought it Incolink payment and, for whatever reason, it was refused, it could never be said, 'You're not entitled to your Incolink payment because you've received a payment of compensation'.

PN155

Can we then to got paragraphs 11 and 12, where his Honour there says:

PN156

In determining whether the Incolink payment should be taken into account, the issue turns on the character and purpose of the payment.

PN157

There he refers to Reading v Lee(?) and other cases. And, at paragraph 12:

PN158

Generally, a court is required to consider the nature of the benefit which is sought to be set off against a plaintiff's damages and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damages he might recover. The conclusion that the benefit is intended for the plaintiff personally, and not in reduction of the damages, may be more easily drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity for which the plaintiff claims and is not intended to replace the lost wages or remedy the loss of earning capacity.

PN159

And there refers to Reading v Lee. Then, going over the page, explains Reading v Lee where their Honours Mason and Dawson JJ discussed:

PN160

The injustice of reducing damages on account of benefits received by the plaintiff, resulting from benevolence.

PN161

They said:

PN162

Benefits of this kind spring from the desire to assist the plaintiff, not from any wish to relieve against the tortfeasors liability.

PN163

Their Honours went on to say that a similar comment could be made about pension and superannuation benefits:

PN164

Whose purpose is to ameliorate the plaintiff's situation, irrespective of his right to recover compensation against the tortfeasor.

PN165

That, in our submission, is applicable here. Can I complete this proposition by, lastly, going to the second last paragraph of the judgment, at the top of page 5, it's the continuation of paragraph 16 where his Honour there says, the first complete sentence on page 5:

PN166

The Incolink payment was not dependent on the loss of wages or earning capacity for which the plaintiff claims damages and was not intended to replace the lost wages or remedy such a loss of earning capacity. I am not satisfied -

PN167

Sorry, I missed the next sentence, or part of it:

PN168

I am not satisfied that the Incolink payment was dependent on the loss of wages or earning capacity for which the plaintiff claims damages, nor was it intended to replace the lost wages.

PN169

The same point again.

PN170

That is the present circumstances. There can be no suggestion that to satisfy Incolink of Mr Elefantis' entitlement that there has to be some loss of wages. He's undoubtedly and unequivocally entitled to it, in accordance with clause 9.

PN171

Can we make very clear why we say, under the Incolink scheme, that they are benefits provided for the employee personally and not dependent on the loss of wage or earning capacity, in these four ways.

PN172

First, the funds are held by Incolink on trust, for the benefit of the employee personally. They are not held on trust for the employer to be used for the benefit of their employees. Once an Incolink contribution is made, the employer relinquishes any ownership of the funds.

PN173

Secondly, Incolink payments are not contingent, as I've already said, on the employee suffering any loss. They can be accessed in circumstances where the employee chooses to end their employment, leave the industry or retire. They are not intended to be paid, in order to compensate loss in that way.

PN174

The Incolink benefits, thirdly, are not required to be paid back in any circumstances, including where an employee might recover compensatory damages or obtain some further employment.

PN175

Fourthly, and lastly, the quantum of Incolink payments is not referrable to any particular period of unemployment, in the way compensatory damages are. The amounts received from Incolink are determined by the trustee.

PN176

Can we say, also, that in determining the intent and purpose of the benefit, regard should be had to the source of the funds. And whilst there's some authorities, and we've referred to them in our written submissions about whether it matters whether the employee pays it or the employer pays it, where the authorities have got to and are clear, if it is paid for the employee's benefit, even if it is paid by the employer, then it is, properly, consideration for the employees service.

PN177

There's no doubt, in the present circumstances, in our submission, that the Incolink contributions were made by Ozcut, in consideration for Mr Elefantis' service, in accordance with clause 22 of the agreement. They were not discretionary, they were not an act of grace, they were payable because Mr Elefantis had, by his work, over the Monday to Fridays provided for by clause 6, brought his entitlement to them. In that way, they do not differ in substance from the authorities to which we've referred in our written submissions, or do not provide any material distinction to the approach that his Honour Beach J was taking, in Papadopoulos.

PN178

So, in all of those circumstances, we say they should not be taken into account under section 392(2)(g). Our learned friend do criticise us for our reliance upon Papadopoulos, can we make this very clear, if it's not from our written submissions, that we rely on it for two reasons. One, that the contributions were paid, pursuant to a contractual, in the words of Beach J, but an obligation under the enterprise agreement, and they form part of the consideration paid by Ozcut. Now, that doesn't make - that's a finding that applies, relevantly, whether they're payments under 22 - under either part of clause 22 of the agreement.

PN179

Secondly, again extending the principle or applying the principle, sorry, provided by Beach J, the payments are not dependent on lost wages and would not be deducted from compensatory damages.

PN180

So we say our friend's distinction from the type of payment is not a proper basis to reject the sound principles that are applied by Beach J, in Papadopoulos.

PN181

Can we, lastly, in respect of this ground, say something about ERGT v Govender, because the Bench will have seen both the applicant and the respondent have dealt with it and the respondent tries, with some desperation in our submission, to character Mr Elefantis' payment as a redundancy payment and then say, 'Well, this is on all fours with ERGT v Govender'. Can we say what that should not be accepted?

PN182

First, as we've already explained, Mr Elefantis was not made redundant. He did not receive the Incolink payment as a result of being made redundant by the respondent. Mr Govender was made redundant, received an ordinary redundancy payment, under clause 41 I think it was, of the agreement that applied to him which, relevantly, reflects 119. His termination was ultimately considered unfair because he was not redeployed. But, in practice, of course, where there was no redeployment, he was still redundant.

PN183

Secondly, of course, and perhaps more importantly, there are significant differences between Mr Govender's entitlement to redundancy and the Incolink contributions earned by Mr Elefantis and drawn on, under the Incolink scheme. As you have seen, and consistent with your decision, Asbury DP, in Rankin, those payments would have been available to Mr Elefantis if he accessed them at the point at which the Commission determines that his employment would have ended. Now, that's not the case, undoubtedly, in respect of a redundancy scheme.

PN184

Whilst our friend says, incorrectly we say, in paragraph 15 of his submissions, that it was a redundancy and he was only entitled, in circumstances where he was made redundant. That, self-evidently, can't be the case, because Mr Elefantis was not made redundant and, nevertheless, accessed the entitlement.

PN185

Thirdly, and importantly, there seems to be - it is clear, from the decision, and Catanzariti VP will remember it better that all of us, did not assess when it was that Mr Govender earned his redundancy payments. The argument and the proposition in the case was a focus on whether the redundancy payment constituted remuneration, under 392(2)(e), and not in the present circumstances, where we are dealing with what we say was an Incolink entitlement earned during the course of employment. That issue was not agitated.

PN186

At paragraph 29 of the respondent's submissions, the last thing on this issue, the respondent seeks to diminish the importance of the fact that under the Incolink scheme Mr Elefantis will receive the full balance of his Incolink payments at some point in his career. It does that by describing it as Mr Govender and Mr Elefantis having the same contingent liability triggered by redundancy.

PN187

Now, we say, on a proper analysis of their respective circumstances, Mr Govender's was triggered by redundancy, albeit an unfair one because he was not redeployed, Mr Elefantis' was not and, undoubtedly, the entitlements operated differently and trying to equate them with a common label of redundancy really fails to do what is the task of the Commission, and that is to assess the payments themselves, how they were paid and when they were paid and the entitlement to them. Simply calling them a redundancy doesn't properly carry out that task.

PN188

So, in conclusion, on ground 1, it's really - there are really three bases for putting this amount - these Incolink payments should not be taken into account. The payments, firstly, were remuneration earned prior to the dismissal and therefore they would not be taken into account, under 392(2)(e). They should not be taken into account, under 392(2)(g) because if the endeavour is to put Mr Elefantis in the position he would have been in, but for the termination, those payments would have also been available to Mr Elefantis, if he accessed them at the point at which the Commission estimated his employment would have ended.

PN189

Thirdly, and lastly, by analogy, payments of this sort have not been taken into account when assessing compensatory damages, in the authorities to which we're referred.

PN190

That is as much as we need to say, save anything we need to raise in reply, on ground 1. Unless there are any questions on ground 1, I'll nextly deal with ground 2.

PN191

VICE PRESIDENT CATANZARITI: Well, well ground 2 you should do quite briefly, because it's a (indistinct) point. I'll just ask the members of the Bench whether there's anything on ground 1, which is the core matter before the Bench today. Are there any questions on ground 1?

PN192

DEPUTY PRESIDENT ASBURY: No, Vice President, none from me.

PN193

VICE PRESIDENT CATANZARITI: Commissioner Bissett?

PN194

COMMISSIONER BISSETT: No, nothing from me, thank you.

PN195

VICE PRESIDENT CATANZARITI: Thank you. Well, Mr Dowling, if you need to supplement your submissions on ground 2, do so, but you don't need to - neither party should over labour ground 2.

PN196

MR DOWLING: Thank you, I appreciate that. I shall do my best to heed that warning.

PN197

The decision, as I've already said, is contained behind tab 3, at page 38. The conclusion that we complain about is the one reached at paragraph 73, and that is the conclusion in respect of what would have happened had Mr Elefantis been given a warning.

PN198

Could we summarise the position this way; it is clear that the Commissioner found that the dismissal was unfair. It is clear that the Commission found that a warning should have been given. It is clear, on the evidence, that no warning was given. This does not appear in my written submissions, so I better identify it for the Bench.

PN199

Mr Elefantis was re-examined about the issue of a warning and, at the transcript that appears behind tab 4, at page 85 of that transcript, at paragraph 357, he was re‑examined:

PN200

Were you ever - the questions put to you about times, when you completed a timesheet, were you ever told that if you don't start completing timesheets it may lead to disciplinary action? Were you ever formally cautioned?‑‑‑No, I wasn't.

PN201

So the summary of where we get to, it was an unfair dismissal, he wasn't warned, he should have been warned, and then there's a conclusion about what would have happened if he was warned. That's at the heart of the error, what would have happened if he was warned.

PN202

Now, in our submission, there can't be a safe and reliable conclusion about what he would have done if he was warned, in circumstances where he was never warned and it was never put to him, by anyone, Commissioner, although it's the respondent's job, 'What would you do if you had been warned?'. What the Commissioner did and what the respondent seeks to do again, in its written submissions, is rely upon the Commissioner's conclusions about a general disposition against completing timesheets. But there is a very important distinction, in our submission, between a general disposition against the completing of timesheets and what would you do if faced with a warning threatening your dismissal. That's what the Commissioner was saying should have happened. He should have been warned and told, 'If you do not do this, you will be terminated'.

PN203

Now, what you cannot do, in our submission, and what the Commissioner was in error in doing and what the respondent's are in error in repeating, is say, 'Well, there's lots of findings about how he didn't want to fill in timesheets, so therefore he would not have heeded the warning'. That leap is the impermissible one in two circumstances. In circumstances where it was never put, 'What would you do if you were given that warning?', and, in our submission, in circumstances where the only relevant evidence about his willingness in the future was to the opposite effect. We've extracted the transcript behind tab 4, page 65, from 173 following, where he says - where it was put to him he didn't want to do it and he said, 'Not at all, I did want to do them, I just wanted some more time'. Now, that counts against the findings, ultimately, about his general disposition but what we say is, where there was no evidence or question asked about, 'What would you do if you were warned?', and the only evidence you've got is, did he want to and his evidence was he did want to, he just needed time. The finding that if he was warned he would not have complied is an unreasonable one and an unsound one, in our submission.

PN204

Remembering, of course, that he's a 17 year employee and it's one thing to get what might be complacent about timekeeping records and it's another to be given a letter that says, 'If you don't do it, you will be terminated'.

PN205

Now, the only thing I need to say about - the only last thing I need to say about this is respond to what it is the respondent says, and they deal with it at paragraphs 33 to 41 of the written submissions and, as I said, fall into the same error as the Commission did below, by equating his general disposition, in cross‑examination about his general unwillingness, with the fact and the cross‑examination that wasn't there, and that is the cross‑examination about, 'What would you have done if you were given a written warning threatening dismissal?'.

PN206

Now, they also rely, they say, on the findings about general unreliability of Mr Elefantis, and they extract a reference to that. The complete reference is both of the relevant witnesses, Ms Thompson and Mr Elefantis, were found wanting in some respects. But we say our proposition is made good even if the Commission were not to accept the appellant's general desire to actually do timesheets, there still remains no evidence about what his response would have been to a written warning. That's a very different thing. Even if you don't accept, we say the error is still made good.

PN207

There is an alternative, it seems to us or is clear to us, that the respondent says, in this respect, that the Commissioner was, in fact, in error, but we're in disagreement about what that error was. The respondent says, 'The Commissioner was in error because he shouldn't have said four to six weeks, he should have, in fact, said one'.

PN208

Now, can we say this about the four to six weeks? The caveat, of course, in saying what we do say about the four to six weeks is we say, of course, the four to six weeks is erroneous but if you're against us on that proposition and you're attracted to the four to six weeks, you shouldn't be attracted to what our learned friend says about one week, for these reasons.

PN209

Firstly, the Commissioner said that the respondent should have tested any failure by warning, so no doubt he had to give it. You can expect that that process would have taken some time and should have taken into account the appellant's 17 years of service.

PN210

There is a finding that that warning might have been breached soon, not immediately after the warning, and there is also a finding that there may have been some compliance but the appellant may not have changed for long.

PN211

So you put all of that together, if the Commissioner wasn't right in the fundamental flaw as to his conclusion about what would have happened with the warning, and you don't accept us on that, his four to six weeks, or at least four to six weeks, we would say, is at least consistent with his other findings. And there's not a proper basis to say, on the other findings that he makes, if you're against us, that it should be one week.

PN212

I won't address you on permission to appeal. That only leaves one last thing for me to do, and that is the question of disposition.

PN213

Taking, now, into account that all of the relevant matters below and in the affidavit of Ms Barnes before you, if the Commission accepts that the error on ground 1 and the error on ground 2, or some combination of those, which I'll come to, it's our submission that the Commission should quash the compensation finding below and assess compensation for itself. It has all it needs. It would be not sensible, not prudent and not consistent with dealing with things quickly and efficiently to have the matter sent back, when the Commission has all it needs before it.

PN214

Mr Elefantis is now 59 years of age. The Commission knows he was employed for 17 years and it knows, from his evidence below, as supplemented by Ms Barnes-Wheelan, that he would have worked to his retirement at 67.

PN215

Now, in those circumstances, and we accept that there would be a discount for contingencies, of course, but it's our submission that he would have continued to work until retirement, subject to those discounts for contingencies, and we are content to give (indistinct) because we accept anything could happen over that period of time. But if one performed the Sprigg calculations then, on the basis that we are correct, you will see, form the evidence below, that Mr Elefantis' annual income was $96,616. Don't need the precise figures to know that if you multiply that out by eight, it's in excess of $770,000.

PN216

If you were to deduct the monies earned, which you now know is $10,000, I'm rounding down, then that figure is $760,000. If you were to discount it significantly, for contingencies, and we say 'significantly' in the range of 25 per cent, that discounts it down to still above $500,000.

PN217

The fourth step of the Sprigg test is the question of taxation, which I think we can ignore, it's a gross amount as any monies earned would be a gross amount, and then there's the question of applying the cap. Relevantly, the cap, for Mr Elefantis, is $48,308, so that's how we get to that figure. That's assuming he worked for eight years, with a discount of 25 per cent. Of course we should make clear that on any sums, if you were to assess if we're right on ground 1 and you were to assess he's stay there for another 12 months, you still end up at the cap.

PN218

That only leaves for me to describe, and there's some complication to it, in one area in my friend's submission, the various alternatives, in terms of ground 1 and ground 2.

PN219

If we are right, assuming the Bench is satisfied in respect of ground 1 and 2, then the Full Bench should determine compensation for itself, we say, under 607(3)(b). That would lead to a series of calculations like I just described and that would lead to the maximum compensation of six months. That's if we're right on grounds 1 and 2.

PN220

If ground 1 fails, if you're against us on taking into account the Incolink payment, but ground 2 is upheld, we say that should still lead the Commission to redetermine compensation. That would mean he was wrong to say it would have been four to six weeks and, on our counterfactual, had he been given the warning he would have rectified the problem and continued in employment. That means you carry out the normal steps, under 392 and Sprigg, remembering we're wrong on ground 1, so you do take account of the $70,000, but if you were to say it's the eight year period, we would still end up with the statutory maximum.

PN221

That's the second alternative. So the first we win on ground 1 and 2, we get the statutory maximum. We fail on ground 1 but win on ground 2 and you estimate a longer period, even taking off the $70,000, we may still end up in the statutory maximum.

PN222

If, however, we win on ground 2 - sorry, we win on ground 1 but fail on ground 2, that, in my submission, is where we are left with the six weeks that the Commissioner described, because that would be saying the six weeks was the right estimate against why we say it's in error, but you should not deduct the $72,000.

PN223

So they are the three alternatives. I think our learned friend, in his written submissions, says that if ground 2 - sorry, ground 2 falls away if we are wrong about ground 1. We say that's not correct. We can still lose on ground 2 but if you find the longer period - sorry, still lose on ground 1, but if you find the longer period on ground 2 that's where we might still be entitled to a greater compensation.

PN224

I hope all of that makes sense about those alternatives. I'm happy to answer any questions, but - - -

PN225

VICE PRESIDENT CATANZARITI: No, we'll move on. Thank you, Mr Dowling.

PN226

We'll hear from you, Mr Burmeister, now, thanks.

PN227

MR DOWLING: Thank you, Vice President.

PN228

VICE PRESIDENT CATANZARITI: Again, I ask you to focus on ground 1, on principle.

PN229

MR BURMEISTER: I hear what you say, Vice President, and I will attempt, given 11.30 on a Friday, to be mercifully brief, so that we can all get out of here before lunch time.

PN230

What my learned friend attempted to do is to suggest that their approach is based in principle but, instead, attempt to lead, with respect, the Full Bench into a swampy lagoon from which this jurisdiction may have real trouble swimming to the shore.

PN231

I'll deal with ground 1 first.

PN232

My learned friend effectively say that the principles in Sprigg, as articulated and explained recently by another Full Bench in Govender should be abandoned, effectively, and that common law principles should apply. That much is apparent from my learned friend's oral submissions today and from the applicant's submissions, at paragraphs 42 to 61.

PN233

Despite the detail in section 392 and the clear history of decisions we have before the Full Bench, the test, as my learned friend would have the Full Bench adopt, would be supplanted by, effectively, the test that is assessed where damages are to awarded in courts, in contract and in negligence. This explains the very heavy reliance on a decision of a judge of the Supreme Court and I'd note, for a point that I'm going to come to later, that deciding that point took a day of the Supreme Court's time, it involved three silks, three juniors and a written decision that went up to five pages.

PN234

These are not the principles applicable in this place. The test is a statutory one, it's articulated in section 392. It's been refined by Full Bench's of this Commission, over many decades and it's done by the Sprigg test, which I think everybody is in agreement about and, with rare exception, it's the consistency driven by that test that has been the backbone of ensuring that this jurisdiction doesn't blow out to more than it needs to be.

PN235

That was articulated in Sprigg itself and this is a point that was cited, with approval, by the Full Bench, in Govender, and I understand that each member of the Full Bench has a copy of that decision. I think it appears in two of the bundles. I'm content to go with my learned friend's bundle. It's behind tab 5 of that bundle.

PN236

VICE PRESIDENT CATANZARITI: We have that decision and we're mostly familiar with it.

PN237

MR BURMEISTER: I'm sorry, I said the wrong tab, so thank you for saving me, Vice President.

PN238

At paragraph 42 the Full Bench, in Govender, says as follows:

PN239

It is important that the methodology in Sprigg is applied in a consistent manner, by the Commission, and this includes consistency in the treatment of monies paid to an applicant by way of severance or redundancy pay, when considering 392(2)(e). Indeed, the Full Bench, in Sprigg, stated that, 'It is desirable that a consistent and predictable technique for determining an amount to be ordered, in lieu of reinstatement, should emerge in Commission practice'. We consider that principle to be no less important today as it was when Sprigg was decided.

PN240

With respect, that is correct.

PN241

The alternative being proposed by my learned friend is to, effectively, tear most of that up and revert to the uncertainty and costly processes that are engaged in by the courts. I've said what I've said about Papadopoulos.

PN242

That is, the Commission will be tasked with, and only with, placing the dismissed employee in the same position they would have been in, but for the dismissal. Now, for various reasons, which I'll come to, that is a departure from the Commission's established practice, as that term was used in Sprigg and in Govender, and not only in ways that favour my friend's case, but also in ways that would favour my case.

PN243

It will import doctrines to this place, around remoteness, around causation, whether an employee has mitigated their loss and the extent they've failed to do so. I readily accept that mitigation is a factor, under 392, but this will import the common law factors around mitigation and a proper assessment of the extent of mitigation, if we go down my learned friend's path.

PN244

Leaving aside that they're wrong, as a matter of statutory construction, the consequences, legally and practically, would include the following.

PN245

First, the complexity of compensation assessment will increase exponentially. It will turn into an arbitration concerned with all amounts lost and gained by employees, after dismissal. Contrary to what has been the position since at least Shorten, Centrelink payments earned by an employee, former employee, after dismissal, will become relevant because the test will be what position would they have been in, but for the dismissal. But for the dismissal a welfare payment, received as a consequence of being unemployed would never have been paid, so that must be deducted.

PN246

You can understand that that's just the shallow part of the surface of this swampy lagoon. When you dive deeper increasingly elaborate arguments will need to be articulated and arbitrated by the Commission.

PN247

There'd be no licence to automatically exclude any charitable gifts received by an employee, as a result of dismissal. Perhaps the person giving the gift would need to be cross-examined as to why they made the payment, et cetera. This will have significant practical consequences for the parties and for the Commission.

PN248

That increasing uncertainty will, of course, undermine the ability to settle any unfair dismissal claims, either by the conciliation conducted by the Commission, or otherwise, because there will be a grey area as to what pot of gold, if any, sits at the end of each claim.

PN249

Moreover, you'll have more arbitrations, as a consequence, and those arbitrations will, necessarily, take more time because the remedy phase will take - rather than taking the hour or so that it typically takes in a contested arbitration, it might take a day. Moreover, the pre-arbitration process will involve, I would imagine, or I would submit, an increasing reliance on rule 54. Documents will need to be obtained from all angles to determine what amounts have been received by former employees, what amounts they might have received, if they hadn't failed to mitigate their loss, et cetera.

PN250

Moreover, and I'm speaking against the interests of the Bar here, it would undermine the imperative, in section 596 of the Act, that parties represent themselves, especially in unfair dismissals of course. Workers and bosses themselves are unlikely to be experts in areas like damage, causation, remoteness, and mitigation.

PN251

Finally, presciently, as we're here, it's obviously, from the foregoing, that if you have a more complex system below, you will have more applications to Full Benches, pursuant to section 604, because the increased complexity will lead to, inexorably, and this is said with the greatest of respect, it's just a natural consequence, a greater scope for errors of law and a greater scope for significant errors of fact, as required in this jurisdiction.

PN252

Of course, these are just examples, members of the Full Bench, but they bear out why, in my submission, which I'll develop in a moment, that the approach in Sprigg, as endorsed and clarified recently in Govender, is, with respect, correct.

PN253

So if I can move on to Govender, which my learned friend traversed very briefly, towards the end of his submissions. In Govender, the Full Bench, at paragraph 46, and I trust that members of this Full Bench have a copy of Govender before them. I think we were speaking to it earlier.

PN254

VICE PRESIDENT CATANZARITI: We certainly do.

PN255

MR BURMEISTER: Thank you, Vice President.

PN256

At paragraph 46, it's the key paragraph, the Full Bench says the following, and I'll come back to the redundancy payment that the Full Bench was dealing with in Govender, but it's not true to say, and perhaps I overstated the similarity in my written submissions, if I did that was in error. It's not true to say it was the identical entitlement to under the National Employment Standards, it was a more generous entitlement, but I'll come back to that.

PN257

Paragraph 46:

PN258

It is apparent from the foregoing that the methodology in Sprigg, contemplates as a second step in the process, the deductions of 'moneys earned since termination'. The only moneys excluded from this is moneys received from other sources and unrelated to work done.

PN259

Now, with respect, that is a test that provides consistency and certainty as to how further Full Benches, but most likely single members of this Commission, are to interpreter - are to assess payments made or received or to which employees are entitled, after dismissal.

PN260

It is a disciplined, principled approach. It is far removed and sits on a jetty far away from the swampy lagoon proposed by my learned friends.

PN261

Now, there are three elements that the Full Bench articulates, in paragraph 46, and there's some double negatives here and I apologise if I stumble over them a little. Firstly, that you don't exclude monies - first, 'Not monies received from other sources'. So if the payment is received from another source, then that money doesn't count.

PN262

Second, 'Monies not unrelated to work done', and third, and importantly, 'Earned since termination'. Now, that's an articulation of the language in 392(e), which is, 'Earned during the period between dismissal and the making of the order for compensation'.

PN263

Now, these elements ensure that we include in the deductions fresh earnings from other employers, after dismissal, amounts to which dismissed employees became presently entitled to because of the dismissal and it excludes other amounts. So it excludes gratuities, it excludes Centrelink payments. Now, that is a policy decision that has been made long by this Commission and it's not cavilled with at this point, unless we have to go down the path that my learned friends are suggesting, and throw the whole thing open.

PN264

So if you apply the test, and I thought I might just step through the various types of entitlements that commonly are paid to employees, immediately after or as a consequence of termination. These are the sorts of payments that all of us who work in this game commonly see on final payslips.

PN265

So payment for annual leave, so cashed out annual leave. Is it deducted? No, and the reason for that is it fails the test because it's earned before dismissal. It was a present entitlement before dismissal. The entitlement to the underlying annual leave was something that the employee had and was not contingent on the dismissal and didn't happen after the dismissal. Long service leave falls into the same boat.

PN266

Centrelink payment. No, they are not deducted because they are from another source, they are from the government or the taxpayer.

PN267

Insurance payments. No, they are from another source.

PN268

Redundancy payments. Yes, they meet all three criteria. They are not monies received from other sources, they are received from the employer. They are not unrelated to work done, they accrue in lock step with work being done, and they are earned since termination. They are earned as a consequence and therefore after termination. If termination doesn't occur, they are not earned.

PN269

Payments in lieu of notice. Now, I understand there's no debate about this, they are deducted at step 2. They also meet all three requirements. They're from the employer, they are in respect of work done, they accrue over time and they are paid out after, as a necessary corollary of them being because of termination.

PN270

Superannuation. No, you don't deduct superannuation. Superannuation contributions are earned before dismissal. I'll come back to superannuation contributions when I respond to what my learned friend said about the Armika case, which is, of course, one of those James Hardie cases.

PN271

So, viewed through this prism, we have a principled approach that parties and the Commission can resort to. In Govender, of course, and perhaps I'll come to Govender, but everything else that my learned friends introduced this morning, and said in their submissions, can be answered through the prism of those principles.

PN272

The first proposition I'd like to respond to, and I think it was the last one put, was that the entitlement is somehow different from the one in Govender. With respect, and for the reasons I've set out in my written submissions, it's not a different entitlement at all. The Award Modernisation decision makes very clear that the type of entitlement here is a replacement for the entitlement under the National Employment Standards.

PN273

Now, if there's some sort of sleight of hand that when we get past the award and the agreement and make it to the trust, somehow that's no longer the case, well, I can't answer that. I can't answer how the trust deed was entered into, but it is the replacement entitlement and, contrary to what my learned friend suggested this morning, Mr Elefantis was made redundant. The definition of redundancy might be different, but he was made redundant, in accordance with the agreement and the award.

PN274

It's no answer to say, 'He wasn't made redundant', as it would be understood under the National Employment Standard, because the same would apply to the reasoning in Govender. In Govender the redundancy definition was more generous. It was closer to the national employment standard but the Vice President will recall, in Govender the relevant enterprise agreement had a redundancy provision. There appeared to be an error in the drafting that wasn't relevant to this, but, among other things or at least, the definition of 'redundancy' didn't, as is the case in section 119, did not carve out the customary and ordinary turnover of labour or insolvency, so there was a different standard.

PN275

That didn't alter the fact that Mr Govender, in that case, was made redundant, albeit it wasn't a genuine redundancy, for the purpose of Part 3(2), it didn't alter the fact that he was made redundant. The same thing applies here.

PN276

Going to the question of earnings, the Full Bench has my submissions - - -

PN277

VICE PRESIDENT CATANZARITI: Sorry, before you move on, how do you say that when the actual stated reason is not redundancy, by your client? If your client had been made redundant in the traditional way, one view might be that the payment in the trust deed would be deducted. One view might be, here, there's an argument at least, that because of no redundancy all these issue are arising.

PN278

MR BURMEISTER: Well, if I'm understanding your point, Vice President, it's that my client didn't use the word redundancy, is that the point?

PN279

VICE PRESIDENT CATANZARITI: Well, your client, as I understood it, summarily dismissed the applicant, on the basis that there was a brawl, effectively, over the timesheets and behaviour, so it wasn't really redundancy, as is ordinarily understood.

PN280

MR BURMEISTER: But it is, with respect, Vice President, redundancy, as understood in the enterprise agreement.

PN281

VICE PRESIDENT CATANZARITI: Yes. Well, you might take us through that, how you want me to make good (indistinct) would be of some assistance.

PN282

MR BURMEISTER: Yes. If I can take the Full Bench to the enterprise agreement, and if you'll just bear with me while I bring it up.

PN283

VICE PRESIDENT CATANZARITI: We do have that, so we should go through it.

PN284

MR BURMEISTER: So at clause 22 of the enterprise agreement, which appears, I think, on page 23 of the pdf, deals with redundancy contributions. These are the points that I articulate in my written submissions, beginning at paragraph 10, but if you see, in paragraph 14 of my written submissions - I'm sorry, I misled the Full Bench there. If the Full Bench could direct its attention to clause 18.6 of the enterprise agreement, clause 18 deals with redundancy.

PN285

VICE PRESIDENT CATANZARITI: Yes, we have that.

PN286

MR BURMEISTER: If you look at clause 18.6:

PN287

An employee is entitled to access his -

PN288

In this case:

PN289

redundancy payments when they cease to be employed by the employer.

PN290

The end. That is the definition of redundancy, under this enterprise agreement.

PN291

COMMISSIONER BISSETT: Mr Burmeister, there's the definition of redundancy in the definitions clause in the agreement. It seems to exclude termination for misconduct.

PN292

MR BURMEISTER: Yes, which this was found not to be, as I understand it.

PN293

COMMISSIONER BISSETT: Except that at the time he was dismissed he was dismissed for misconduct, so his termination can't have been for redundancy, under the definition of redundancy, in the agreement.

PN294

MR BURMEISTER: My understanding is that these amounts were paid by the employer, in accordance with the agreement, and that was the evidence. There was no evidence before - - -

PN295

COMMISSIONER BISSETT: I don't take issue with that.

PN296

MR BURMEISTER: There was no evidence before the Commissioner, at fist instance, of anything beyond the agreement, and this is why I objected to the admission of the deed, because the admission of the deed gives rise to a whole other barrel of issues that were not articulated at first instance and that aren't the subject of the appeal.

PN297

DEPUTY PRESIDENT ASBURY: Mr Burmeister, it's Asbury DP, sorry to interrupt you, but doesn't the deed actually assist your argument, because the deed has a broader definition of - the deed indicates that the payment can be accessed, regardless of the reason for dismissal, where it seems that the agreement indicates that it's not a redundancy payment, it's not a redundancy where the reason for dismissal is misconduct. There's no getting away from the fact that the respondent in the matter dismissed the applicant for misconduct.

PN298

MR BURMEISTER: There is no getting away from that, Deputy President, and it - all of this, rather, cuts both ways and leads to an almost interminable dispute about what is meant by redundancy, in each case. Indeed, this makes my point that we are in the swampy lagoon. We are looking at four documents now. We've go the National Employment Standards, we've got the modern award, we've got the enterprise agreement and we've got a convoluted deed.

PN299

DEPUTY PRESIDENT ASBURY: Mr Burmeister, while you're on the swampy lagoon, can I just raise a question that I intended to raise with you later, that if your argument is right, then the proposition is that regardless of when the dismissed employee accesses those funds, they can be taken into account in assessing compensation?

PN300

MR BURMEISTER: Yes, precisely. That is my point.

PN301

DEPUTY PRESIDENT ASBURY: So why isn't it a swampy lagoon for the Commission to then have to delve into the money in that fund and where it came from? Because it could have come from multiple employers over multiple periods of employment. So is the Commission supposed to deconstruct the money that's held in trust by an entity? Is the Commission supposed to deconstruct that? Because you can agree or disagree with this proposition, but it seems to me that is a much murkier swamp for the Commission to start delving into and it opens all kinds of issues where, really, you can simply categorise payments now, on the basis of traditionally looking at how we've always looked at them: workers compensation, superannuation, unemployment benefits, and characterise payments accordingly. Surely if it is a swamp it's a shallower and less murky swamp that delving into deconstructing the monies in those funds and what can be deducted and what can't.

PN302

MR BURMEISTER: Precisely, with respect. That's exactly my point, that this ought to be assessed through the prism of what the Full Bench said in Govender. Three part test, apply the test, was the money from other sources? No, the money came from the employers. Was the money - - -

PN303

DEPUTY PRESIDENT ASBURY: Not all of it might have. Not all of the money might have come from the employers, because you're looking at the applicant in this case. In other cases, if the employee has been there for a shorter period of time, then some of the entitlements that that employee has in the fund could have come from other employers, because it's a portable fund.

PN304

MR BURMEISTER: Yes, I accept that, and that makes my point. 392(2)(e) contemplates monies earned from a new employer, after dismissal. It doesn't matter from which employer - - -

PN305

DEPUTY PRESIDENT ASBURY: But it will be before dismissal, that's the difficulty. An employee who's been 20 years with one employer and then two years with the next employer will have 20 years of entitlements from the first employer. So how do you - logically, how does it follow that you deconstruct that money in that way? To me that's a much murkier swamp for the Commission to get into.

PN306

MR BURMEISTER: I'm not suggesting any deconstruction of that at all, and if my - - -

PN307

DEPUTY PRESIDENT ASBURY: But logically, Mr Burmeister, it follows from you submission, because if it doesn't matter when that money is paid, so you're arguing it doesn't matter when - - -

PN308

MR BURMEISTER: That's not my - - -

PN309

DEPUTY PRESIDENT ASBURY: Yes, it is, because if the applicant didn't access - let's assume the applicant did not access the funds at all, he waited until after the compensation was (indistinct) and then he accessed the funds.

PN310

MR BURMEISTER: Yes?

PN311

DEPUTY PRESIDENT ASBURY: So, logically, if you follow your argument through to the logical conclusion, your argument is, the employer's paid that money into that fund and the employee is entitled to access it, in any circumstances and therefore it should be taken into account. So why should it make a difference whether the employee has or has not accessed it, in the offsetting argument?

PN312

MR BURMEISTER: I say it doesn't make a difference. I say if the employee is, because of the dismissal, if they, because of the dismissal and absent the absent the dismissal was not presently entitled to the money then it ought be deducted. Because that avoids the moral hazard of an employee who - we can think of numerous other payments that might be directed - - -

PN313

DEPUTY PRESIDENT ASBURY: Sorry to cut you off again, Mr Burmeister, but we're at cross-purposes because that is exactly my point. If the entitlement to access that money, on the part of the employee, gives rise to the Commission deducting that money from an award of compensation then it follows that there will be cases where the Commission will need to deconstruct the money in the fund and work out which came from the present employer, who dismissed the employee, and which portion of it didn't, because in that fund there may very well be monies that came from previous employers who employed the dismissed employee before employed by the current employer. My proposition is, that follows from your argument. Because, if you're right, employers will be entitled to jump up and say, 'Hang on a minute', or applicants will be entitled to say the money in the fund didn't come from this employer, it came from my previous employer. So the Commission will be put in a much murkier swamp, in my view, having to deconstruct the money in the fund.

PN314

MR BURMEISTER: Perhaps I can answer that by saying two things. Firstly, I don't, on my understanding of Govender applied in this case, say that there needs to be any such deconstruction. All of the co-mingled funds - let's assume that an unfairly dismissed employee had 10 employers and was only with the dismissing employer for the last, say, six months. All of those other employer's funds, if you will, are to be offset as to that calculation.

PN315

By the same token, if that employer had put money into somebody else's Incolink redundancy fund, they won't be able to claim benefit for that, when that person is unfairly dismissed. This is a necessary consequence of this sort of ambulant and moving redundancy fund. The focus is not - - -

PN316

DEPUTY PRESIDENT ASBURY: Why should an employer, who has unfairly dismissed an employee, be entitled to benefit from funds that have been paid by another employer who didn't unfairly dismiss the employee, and use those to offset an obligation to pay compensation, in terms where that employee has been unfairly dismissed?

PN317

MR BURMEISTER: Because Part 3(2) is not penal. It's not about punishing an employer.

PN318

DEPUTY PRESIDENT ASBURY: It's equitable though, isn't it?

PN319

MR BURMEISTER: I'm not sure it's equitable, it's statutory. It is not penal. It is not about penalising an employer for doing something. If it were, it would have to be fought out in a different place, I would say. It's not penal in nature and that's a key here.

PN320

But, by the same token, what I was getting at earlier was an employer who has put a lot of money into somebody else's redundancy fund, can't have any benefit from that. This focuses on the relationship as to the employer and the employee at the time of dismissal. If they happen to have money in that fund that they can then draw on, after dismissal, that money should be deducted from the calculation. That's my submission as to how it should operate, understood in the limbs of Govender.

PN321

DEPUTY PRESIDENT ASBURY: Okay, I understand your submission.

PN322

MR BURMEISTER: Otherwise, we end up in a situation where because an employee happens to work in an industry where there's portable redundancy, different rules apply to that employee, completely different rules. An employee in Mr Govender's industry, the redundancy payment gets offset. But an employee in Mr Elefantis' industry doesn't get offset. There's no doctrinal basis and there's no principled basis for the difference between the two.

PN323

That's why I say, yes, we're looking at this through the prism of these two employees, but there'll be other employees out there who will have different circumstances. It might not be portable redundancy, it might be something else. It needs to be viewed through the principled lens, and the principled lens is the three-pronged test, in my submission, articulated by the Full Bench, in Govender. Those three prongs include other sources, which I hope deals with this concern. Other sources doesn't mean other than the employer who dismissed the employee, because, of course, a new employer could step in and employ the employee the day after dismissal. It would be a very attractive employee, that employee gets employed the day after, that is not 'other sources', that is a type of source that is to be excluded, as are previous employers, who may have paid into the co-mingled amount that is paid upon redundancy. It doesn't change the character of the payment. The character of the payment is a redundancy payment.

PN324

Redundancy might be articulated as far broader concept than under the National Employment Standards, but we shouldn't have to revisit it every time there's a different enterprise agreement or perhaps there's a deed that the parties have entered into, because that will lead us, I'll say it one last time, into that swampy lagoon, because we'll end up down that path.

PN325

This is a payment that was triggered by termination, the entitlement was triggered by termination. The employee became entitled to it because they were terminated in circumstances of redundancy, as understood in the applicable instruments, not as we understand them, instinctively. And they were entitled to that payment and it came from employers and it was earned, as a consequence of and therefore since termination. So for that reason I say this squares up with Govender.

PN326

DEPUTY PRESIDENT ASBURY: Okay. Sorry to keep asking questions, but while I've completely disrupted your train of thought, Mr Burmeister, I may as well continue. Do you agree that the Sprigg test and the formulation, doesn't replace the statute and, at the end of the day, the statute doesn't mandate that amounts are deducted, it simply requires that they be taken into account?

PN327

MR BURMEISTER: I absolutely accept the proposition that no decision of any Full Bench can replace the statutory scheme, or could overrule it, if it were wrong.

PN328

DEPUTY PRESIDENT ASBURY: It's also the case, is it not, that the Commissioner, at first instance, could have just as easily said, as was noted by Full Bench's subsequent to Sprigg, and I think it was McCullough v Calvary Health Care, where the Full Bench said:

PN329

At the end of the day, there's still a step of looking at the outcome and seeing if it's manifestly excessive or manifestly inadequate.

PN330

And in circumstances where there's been a finding that someone has been unfairly dismissed, is it manifestly inadequate that they get nothing? That's still open to the member of the Commission to make that decision, isn't it?

PN331

MR BURMEISTER: I agree with that absolutely and make this further observation. If that member of the Commission then looks at the situation and says, 'That person was paid $67,000, and I think that's manifestly fair', then that's okay. That's how the system should work.

PN332

DEPUTY PRESIDENT ASBURY: I understand your submission. Thank you.

PN333

MR BURMEISTER: Thank you.

PN334

Just moving on to the next proposition that was put, and my learned friends draw attention to the Armika case, and there spoke about superannuation. I apologise to my learned friends if I've got this wrong, but tried to draw a parallel between superannuation and the payment that was drawn upon by Mr Elefantis, in this case. There is, of course, a fundamental difference. Superannuation is earned, or there are several fundamental differences.

PN335

Superannuation is earned before termination and, indeed, can be drawn upon before termination and before the mandatory retirement age. There might be tax consequences for that, but any employee can draw upon their superannuation at various times, there might just be a tax penalty. So that, in my submission, doesn't take it any further.

PN336

Now, the next case that was put against me was Asbury DP's decision, in Rankin. Now, with the greatest of respect to the Deputy President, that decision, understood in the context of Govender, in my submission, and Govender, of course, came after the decision in Rankin, would be wrong, when understood through Govender, as I understand it.

PN337

So it's not so much that the decision was wrong, but the proposition that was drawn from paragraph 85 of that decision, by my learned friend, that proposition ought not be applied.

PN338

That's really all I intended to say, in supplementation to my written submissions, which I say speak for themselves. The position, as I put it, is that this is redundancy pay, in the same way that the payment or the entitlement that Mr Govender drew on, or was paid, in Govender, it has exactly the same character.

PN339

The character is, that it is a payment paid to an employee, as a consequence of termination by the employer, and it's no answer to say the employer paid it into a trust beforehand. The money still came from the employer, ended up with the employee. The trigger for the payment was the termination of employment, in circumstances of whatever the definition of redundancy happened to be, but it wouldn't have mattered if it was some other payment upon termination. If it were a payment in lieu of notice, for instance, it wouldn't have mattered. It is a payment that is triggered by termination, an amount that accrued as a consequence of the work done, and therefore was earned after termination, not from another source.

PN340

There is no difference between the two. Any differences are artificial and drag us into a place that we don't want to be, because it will lead to, effectively, mini Royal Commissions into payments made to employees, on an ongoing basis, with no principles falling from the decisions.

PN341

Now, I've heard what the Vice President says about ground 2, perhaps I could ask the Vice President for an indication if there is anything in my written submissions, or matters raised by my learned friend, in relation to ground 2, that the Full Bench would benefit from further oral submissions?

PN342

VICE PRESIDENT CATANZARITI: No, there'd be no need for any further oral submissions on ground 2.

PN343

MR BURMEISTER: Well, if it pleases the Full Bench, if there are no further questions, those are my submissions.

PN344

VICE PRESIDENT CATANZARITI: Thank you. I'll just check, Asbury DP, any further questions?

PN345

DEPUTY PRESIDENT ASBURY: No, Vice President, thank you.

PN346

VICE PRESIDENT CATANZARITI: Commissioner Bissett?

PN347

COMMISSIONER BISSETT: No, thank you, Vice President.

PN348

VICE PRESIDENT CATANZARITI: Thank you.

PN349

Matters in reply then, Mr Dowling?

PN350

MR DOWLING: Thank you, Vice President. I'll be brief, but I'll try and drain our friend's swamp in the short time that we've got.

PN351

The fundamental starting point of our learned friend's submission was that we have abandoned ERGT and supplanted some common law principles. What our friend conspicuously ignores is the adoption of those principles repeatedly and regularly and consistently by the Full Bench of this Commission. We have referred the Bench of Ellawala, and can we give a pinpoint reference to paragraph 34 of Ellawala, which is included in our bundle of cases, at tab 3, but the reference was to paragraph 35, where the Full Bench there said:

PN352

This is because the calculation is intended to put the applicant in the financial position he or she would have been in, but for the termination of their employment.

PN353

That was a decision of Ross VP, as he then was, Williams SDP and Gay C, they were making very clear that the principles set out in the Act, as they then were, not relevantly different, in terms of approach, should approach the compensation task on that basis.

PN354

We're not supplanting the principles with the common law position that the court - sorry, the Commission has regularly acknowledged and stated that that is the way the compensation exercise should be carried out.

PN355

As I said earlier, for completeness, we tried to update that decision by providing for you Double N Equipment, which is behind tab 2 in our authorities, the decision of Hatcher VP, Gostencnik DP and Harper-Greenwell C, where, at paragraph 19 they refer to, with approval, that extract from Ellawala, noting it had been citied, with approval, in the other Full Bench, in Bowden, which is footnoted at footnote 13, and there say:

PN356

Money earned after the end of the anticipated period of employment.

PN357

Remembering that that is precisely what we say about Mr Elefantis' continuing entitlement. It would be money that he could have earned at the end of the anticipated period of employment, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in, but for the termination of their employment. That is the principle.

PN358

We didn't drag that principle from the courts and force it upon you, that is the principle that this Commission has applied as the proper approach to compensation. When you apply it here, you must acknowledge, in our submission, that putting him in the position he would have been in, but for the termination, at the end of the period, let's say it's six weeks, he could have accessed his Incolink. So to put him in the position means not deducting the payment.

PN359

Our friend says all of this is answered by paragraph 47 of Govender, because there it is, 'Monies earned since termination'. Well, what it ignores is you actually have to assess the monies earned in this case and decide whether they are earned since termination.

PN360

Now, my friend went through a series of examples, and conspicuously absent was the facts in this case. You can't say, 'Well, what about this and what about that?', it is best to have regard to the facts in this case. As close as he got with superannuation, to tell you that that is, in fact, earned before the dismissal, but then not to tell you how it is relevantly different, in terms of how that is earned during the employment and how this Incolink payment is not earned, there is no assessment of our argument about how the money was earned prior to the termination.

PN361

The high point of all of the submissions about it being a redundancy payment seemed to be two-fold. One that he was, in fact, made redundant because it fits within the award definition or he was, in fact, made redundant because he fits within the agreement definition, both of those things are wrong. The award agreement excludes reasons other than misconduct or a refusal of duty and Bissett C referred our friend to the definition of redundancy in the agreement to the same effect. So under those two clauses, it is clear that he was not made redundant.

PN362

The second limb of this proposition is that the payment that he received is not, in any way, different to section 119 because the fund, through the operation of the award, is a substitute for it. Now, that, in our submission, is a rather strange way of coming to the conclusion that the two things are the same.

PN363

It is abundantly clear, from what we've seen this morning, that the fund is more beneficial. That's what our friend has failed to grapple with. The fact that it is more beneficial and the circumstances in which you can get it. Where is it more beneficial, it is not the same as section 119. Clearly enough, on its own terms, it is not the same as section 119. You don't get there backwards by saying, because it's a substitute it must be.

PN364

Can we then just make one last point, picking up the debate that your Honour, Asbury DP, had with my learned friend? What he says, in response to the Deputy President's proposition is that it doesn't matter where on earth the monies in the fund come from, once you draw on them that's to be taken into account. Can we just give the Bench a reference to paragraph 59 of our written submissions and one of the complaints we make, when reviewing the way compensatory damages are to be assessed, and reviewing the way compensatory damages are to assessed, consistent with the approach that the Commission should take, there the authorities to which we've referred make clear that a benefit should not inure to the benefit of an employer who, by its own wrongdoing has caused the employee's loss.

PN365

Now, when looking at the fairness of the situation, as the Deputy President quite rightly described as an appropriate step in the entire compensatory task, our friend would have you accept that it doesn't matter if 95 per cent of the money was paid by another employer, this employer, who has just committed the unfair dismissal, should still get the benefit of all of that.

PN366

Now, that, in our submission, should not be a proposition to which this Bench should accede and if it doesn't accede then it does highlight the problem that the Deputy President identified, then you'd have to distinguish, well, I'll take account of the 5 per cent but not the 95 per cent. That is a much bigger problem.

PN367

We say paragraph 46 of Govender, whist we accept it resolved the circumstances in that case, doesn't answer the situation for us here, because it requires us to work out, in the words of the paragraph, whether it was monies earned since termination. We say we're right about that and we haven't heard a response, let alone one to dissuade us in any way. This is monies earned during the course of employment and looked at, in the second way we do, under 392(2)(g), it is undoubtedly an accepted principle, in terms of compensation in this place that we should endeavour to put Mr Elefantis in the position he would have been, but for the termination of his employment. He would have been entitled to the payment at the end of whether that period is six weeks or longer, as we urge, he would have been entitled to it, and in those circumstances it shouldn't be taken into account.

PN368

Save for those matters of reply, unless there are any questions, they are the submissions of the appellant.

PN369

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

ADJOURNED INDEFINITELY [12.12 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A WITNESS STATEMENT OF MS BARNES-WHEELAN.......... PN45