TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT CROSS
C2022/453
s.739 - Application to deal with a dispute
Mr Christopher Shaun Adamson
and
Gfk Australia Fieldwork Pty Ltd
(C2022/453)
NUW and AMSRO Market & Social Research Industry Agreement 2017-2020
Sydney
10.00 AM, WEDNESDAY, 16 MARCH 2022
Continued from 28/01/2022
PN1
THE DEPUTY PRESIDENT: Good morning. This is Cross DP here. I understand you are there representing yourself, Mr Adamson?
PN2
MR C ADAMSON: Yes. I haven't got my legal team with me.
PN3
THE DEPUTY PRESIDENT: No problems. And for the respondent, Mr Maher. You seek permission to appear for the respondent?
PN4
MR A MAHER: Yes, that's correct, Deputy President.
PN5
THE DEPUTY PRESIDENT: Thank you. I will just deal with that issue of permission first. Mr Adamson, what do you say about Mr Maher appearing for the respondent, whether permission should be granted?
PN6
MR ADAMSON: I think that should have been done some time ago, before the evidence cut off for their - for their cut‑off time for their evidence.
PN7
THE DEPUTY PRESIDENT: Okay. You mentioned that you had a legal team yourself?
PN8
MR ADAMSON: Well, I speak to them, but they're not representing me. I will be dealing with them, yes.
PN9
THE DEPUTY PRESIDENT: Thank you.
PN10
MR ADAMSON: But I would have requested permission earlier on if I was going to bring them today.
PN11
THE DEPUTY PRESIDENT: Thank you. Mr Maher, what do you say in relation to why permission should be granted?
PN12
MR MAHER: Deputy President, as this is a jurisdictional - effectively, I believe that the key issue that would need to agitated if not today at the mention, then at any subsequent hearing, is jurisdictional. I think that there - it is of sufficient complexity for the layperson that it would be - the matter would be dealt with more efficiently if I could be involved perhaps with respect to the substantive matters. I won't make any submissions with respect to permission, but certainly at least for the jurisdictional points, I believe that my participation would help facilitate the movement of the matter forward in the most efficient way, if the Commission pleases.
PN13
THE DEPUTY PRESIDENT: The matter listed is not for mention today, it's listed for hearing.
PN14
MR MAHER: Sorry, Deputy President. Your associate has used the word 'mention' a number of times this morning, which will show up on transcript. I have - - -
PN15
THE DEPUTY PRESIDENT: (Indistinct) probably refer to the notice of listing that says it's a matter listed for hearing.
PN16
MR MAHER: I have prepared to participate in this in the form of a hearing to deal with the issues that we've outlined in our submissions. However, your associate referred to it, as I said, a number of time I mentioned this morning. So I understood that it may well be dealt with as a mention today. But I and my client are ready to have the matter dealt with in accordance with the submissions, not in the form of a mention, if the Commission pleases.
PN17
THE DEPUTY PRESIDENT: Okay. Considering the provisions of subsection (2) and provided this is a simple matter and particularly the jurisdictional issue has been clearly outlined in submissions by the respondent, whether or not they were prepared by you or not, Mr Maher, so I don't intend to grant permission to the respondent to be represented.
PN18
MR MAHER: If the Commission pleases. Would you permit me to remain in attendance, although not making submissions?
PN19
THE DEPUTY PRESIDENT: Yes. As we are adopting the post-COVID method, you can remain in the hearing and assist the respondent, but you cannot represent the respondent.
PN20
MR MAHER: If the Commission pleases.
PN21
THE DEPUTY PRESIDENT: Thank you. Mr Adamson, we are here to hear your application today. One matter that has been raised squarely between the parties - well, possibly before I get there, I note that you did put in an submission that objected to receipt of the respondent's materials, because they were filed one hour late.
PN22
MR ADAMSON: Yes. I noted that. Well, I noted that. Yes
PN23
THE DEPUTY PRESIDENT: You noted it and you seemed to make some issue of it. Do you press that objection.
PN24
MR ADAMSON: I do, actually. As well as the fact that they engaged their representative and the form F53 had not been completed at that time.
PN25
THE DEPUTY PRESIDENT: We are not dealing with that. We are dealing with the question as to whether you press an objection to the respondent's materials being received, notwithstanding that they were filed one hour late?
PN26
MR ADAMSON: I do object. I do object.
PN27
THE DEPUTY PRESIDENT: And the basis of the objection is what, do you say - - -
PN28
MR ADAMSON: They were late. They had plenty of - there was said in the meeting - the hearing memorandum, they had to be filed by 4 pm.
PN29
THE DEPUTY PRESIDENT: And do you say you are prejudiced by receiving them one hour late?
PN30
MR ADAMSON: I can't I'm prejudiced, but I think they should have been - the hearing - it was all set out clearly in the hearing and it's saved in the hearing and they had to be adhered to or a request had to be made if they had to have one of them varied.
PN31
THE DEPUTY PRESIDENT: I reject your objection. I intend to receive the materials from the respondent. Now, in your case, what are the documents that you would seek to rely upon to advance your case.
PN32
MR ADAMSON: Are you speaking to me still?
PN33
THE DEPUTY PRESIDENT: Yes.
PN34
MR ADAMSON: Just the statement made by Joan Warner of the head of CRA Australia confirming that the sample size that has been maintained since the - - -
PN35
THE DEPUTY PRESIDENT: What I'm looking for is you filed materials. For example, you filed a document titled C22 for both (indistinct) Chris Adamson with GFK Australia. I note receipt of the witness statement from GFK Fieldwork on 25 February and then you go on to make certain comments for nine paragraphs. So that's a statement by you.
PN36
MR ADAMSON: Yes.
PN37
THE DEPUTY PRESIDENT: What I'm asking is because I have to have a very clear understanding of what it is that you rely upon to advance your claim. I'm asking you to tell me what are the documents that you wish to rely upon?
PN38
MR ADAMSON: Okay. The head of CRA publicly made a statement regarding the sample size of the work done by GFK being maintained after the change in methodology and that statement is publicly available on the Internet. It is in the public domain. And I can give you - Joan Warner the head of CRA Australia.
PN39
THE DEPUTY PRESIDENT: Mr Adamson, what I'm trying to get from you is I'm trying to get a clear statement of the documents that you rely upon. Now, you would have see the directions for the hearing which outlined that parties were to provide documents by 4 pm on certain dates.
PN40
MR ADAMSON: Yes.
PN41
THE DEPUTY PRESIDENT: And you objected to the respondent being an hour late. That's been dealt with. But now I am asking you what are the documents that you rely on. I've directed you, for example, to the nine-paragraph statement that you provided as (indistinct) such document. Now, you've referred to something that is apparently a document on the Internet. Have you provided that document pursuant to the directions?
PN42
MR ADAMSON: No. I have not.
PN43
THE DEPUTY PRESIDENT: Okay. Well, how am I to have consideration of that document if you haven't provided it?
PN44
MR ADAMSON: I would have provided that document if they disputed that claim in my witness statement.
PN45
THE DEPUTY PRESIDENT: Well, you were to go first. You knew that workload vis a vis redundancy was an issue. And also you had the ability to reply. You haven't provided that document.
PN46
Now, we can try and find ways around this. Who will be speaking on behalf of - - -
PN47
MR ADAMSON: My apologies then.
PN48
THE DEPUTY PRESIDENT: - - - the respondent in absence of Mr Maher? Is that you, Mr Adams?
PN49
MR J ADAMS: Deputy President, if it's okay, it would be great if it could be both myself and Kayley(?), our legal representative in the region.
PN50
THE DEPUTY PRESIDENT: Yes. If want (indistinct) to be the representative, that's fine. I'm just - I have to ask a question of the respondent, being that, obviously, what Mr Adamson now seeks to provide is something that I don't have before me and he relies on it because it's an apparent statement made on the Internet of a certain nature. And I'm really - just to try and cut through - seeing whether that can be conceded by the respondent, such a statement.
PN51
MR ADAMS: From GFK's perspective to, we would have asked him to include it in his submission or two submissions that he's already made to this court. But we don't object though.
PN52
THE DEPUTY PRESIDENT: Okay. And that statement, Mr Adamson, says what?
PN53
MR ADAMSON: I just need one second, Deputy President. Transition to the Radio 360 system will begin in late 2021 while a proportion of survey respondents to start using an e-diary from survey six, while maintaining the annual sample size at 60,000. That number will increase as paper diaries are phased out.
PN54
THE DEPUTY PRESIDENT: So that's conceded then, Mr Adams and Ms Yu?
PN55
MR ADAMS: Yes.
PN56
MS YU: Yes.
PN57
MR ADAMS: That is definitely a fact. I'm happy to say that as well as the leader of the CRA. No objection.
PN58
THE DEPUTY PRESIDENT: Okay. So that's an admission. Now, what documents that you've provided - other documents - do you rely on, Mr Adamson?
PN59
MR ADAMSON: Regarding - just the letters I received from GFK regarding the proposed layoffs, which I should have maybe included and I apologise.
PN60
THE DEPUTY PRESIDENT: So they have also not been included.
PN61
MR ADAMSON: No, sorry. But they are probably not relevant now. They're probably not relevant.
PN62
THE DEPUTY PRESIDENT: What were their dates?
PN63
MR ADAMSON: September. I have to check my files.
PN64
THE DEPUTY PRESIDENT: So that's September - - -
PN65
MR ADAMSON: No. They were leading up to - they were from September, the month before the layoffs.
PN66
THE DEPUTY PRESIDENT: Well, what do you say, Ms Yu or Mr Adams in relation to that? Can we simply accept that the - - -
PN67
MR ADAMS: We can accept. It's still - in terms of GFK's point it's not related or relevant to the jurisdiction whereby Chris isn't an employee of GFK at this particular time.
PN68
THE DEPUTY PRESIDENT: Yes. Okay.
PN69
MR ADAMSON: An aggrieved employee. That's what we're talking about.
PN70
THE DEPUTY PRESIDENT: Mr Adamson, you're obviously aggrieved. You filed a dispute notification.
PN71
MR ADAMSON: Correct. Yes.
PN72
THE DEPUTY PRESIDENT: Okay. I'm trying to get a complete listing and admission into evidence of the materials that you filed and that you rely upon.
PN73
MR ADAMSON: Yes.
PN74
THE DEPUTY PRESIDENT: Can you outline those to me so that we can have a clear understanding between all parties as to what it is that you rely upon. Do you rely on your form F10?
PN75
MR ADAMSON: What's an F10, sorry?
PN76
THE DEPUTY PRESIDENT: It's the form that you filled out to commence this application. It's titled, 'About the Form F10 application form.' Application for permission to deal with the dispute in accordance with the dispute settlement procedure.
PN77
MR ADAMSON: Yes, I do.
PN78
THE DEPUTY PRESIDENT: Okay. Any objection to that being marked as an exhibit Ms Yu or Mr Adams?
PN79
MR ADAMS: No objection.
PN80
MS YU: No objection.
THE DEPUTY PRESIDENT: Okay. That will be exhibit A1.
EXHIBIT #A1 FORM F10 APPLICATION
PN82
Any further documents, Mr Adamson?
PN83
MR ADAMSON: Can I just be two minutes? Sorry.
PN84
THE DEPUTY PRESIDENT: Yes. I suggest one of them will be the nine-paragraph statement that you filed.
PN85
MR ADAMSON: Yes. Those documents are fine.
PN86
THE DEPUTY PRESIDENT: Sorry?
PN87
MR ADAMSON: Those documents, we will rely on them.
PN88
THE DEPUTY PRESIDENT: So you are relying on the statement of nine numbered paragraphs?
PN89
MR ADAMSON: What was that?
PN90
THE DEPUTY PRESIDENT: You rely on the statement of nine numbered paragraphs?
PN91
MR ADAMSON: Yes. Yes.
PN92
THE DEPUTY PRESIDENT: Any objections to any part of that statement, Ms Yu or Mr Adams?
PN93
MR ADAMS: No objection.
PN94
MS YU: No objections.
THE DEPUTY PRESIDENT: That will exhibit A2.
EXHIBIT #A2 NINE-PARAGRAPH STATEMENT OF MR ADAMSON
PN96
Mr Adamson, do you want to rely on the one and a half page statement of five unnumbered paragraphs that you've provided as well and that was titled C2022/453, with your name and GFK's name, and it's a got dated of 9 February 2022?
PN97
MR ADAMSON: Yes, I do.
PN98
THE DEPUTY PRESIDENT: Any objections to any part of that statement Mr Adams or Ms Yu?
PN99
MR ADAMS: No objections.
PN100
MS YU: No objections.
THE DEPUTY PRESIDENT: That will be exhibit A3.
EXHIBIT #A3 STATEMENT OF MR ADAMSON DATED 09/02/2022
PN102
Now, Mr Adamson, that would seem to be the totality of the material that you've filed in the matter. Is that correct?
PN103
MR ADAMSON: Correct.
PN104
THE DEPUTY PRESIDENT: Thank you. Mr Adams or Ms Yu, what documents does the respondent seek to rely upon?
PN105
MR ADAMS: We seek to rely upon the documents submitted C2022/453 on 28 February.
PN106
THE DEPUTY PRESIDENT: Okay. Is that the outline of submission of the respondent?
PN107
MR ADAMS: It's the respondent's submissions titled, 'Documents, respondent submissions', (indistinct) outline of submissions of the respondent. Correct.
PN108
THE DEPUTY PRESIDENT: Dated 25 February 2022?
PN109
MS S ARMETSTED: Yes. That was submitted (indistinct).
PN110
MR ADAMS: Yes. Correct. Thanks, Sonya.
PN111
THE DEPUTY PRESIDENT: Any objection to me receiving that document, Mr Adams?
PN112
MR ADAMSON: No. None whatsoever.
THE DEPUTY PRESIDENT: That will be exhibit R1.
EXHIBIT #R1 RESPONDENT OUTLINE OF SUBMISSIONS
PN114
There is also a document - - -
PN115
MR ADAMS: There is also a form F53 that we would like to include as well, Deputy President.
PN116
THE DEPUTY PRESIDENT: That was a form whereby you were seeking to be represented by Mr Maher.
PN117
MR ADAMS: Sorry, apologies.
PN118
THE DEPUTY PRESIDENT: I thought we'd passed that.
PN119
MR ADAMS: We had. Sorry, that's my - - -
PN120
THE DEPUTY PRESIDENT: Not a problem. I don't think you do this on a daily basis. So that's fine. There is also your letter of 27 January 2022 (indistinct) response to the form F10. Do you wish to rely on that?
PN121
MR ADAMS: I think I'm happy with the submission from 25 February.
PN122
THE DEPUTY PRESIDENT: Okay.
PN123
MR ADAMS: Which deals with it as a jurisdictional issue.
PN124
THE DEPUTY PRESIDENT: Okay. Not a problem. That would then - as the parties will see what we've done is we've identified all of the documents upon which each party relies. There are no effective - well, Mr Adamson has put on documents that might be seen to be statements that might be able to be tested, but is there any desire on the part of the respondent to ask any questions in cross-examination of Mr Adamson (indistinct) submissions?
PN125
MR ADAMS: Not at this stage.
PN126
THE DEPUTY PRESIDENT: Okay. And when you say 'at this stage', you understand that is your one opportunity to ask questions?
PN127
MR ADAMS: Yes. Okay. By (indistinct) stage, I mean, if there's something that comes up in the next minute or so that requires further clarification, I may ask, but I understand this is the hearing (indistinct)
PN128
THE DEPUTY PRESIDENT: Yes. But I think, obviously, I've read the materials. There is a jurisdictional issue raised that is outlined clearly in the respondent's outline of submissions. Do you wish to say anything further to those submissions in order to deal with that jurisdictional application, Mr Adams or Ms Yu?
PN129
MR ADAMS: No.
PN130
THE DEPUTY PRESIDENT: Okay. Mr Adamson, you've read those submissions.
PN131
MR ADAMSON: Yes, I have. Yes.
PN132
THE DEPUTY PRESIDENT: What do you have to in relation to those submissions on the jurisdictional point?
PN133
MR ADAMSON: Well, I - the dismissal request based on the aggrieved employee definition, which I totally disagree with the aggrieved employee definition from a legal sense.
PN134
THE DEPUTY PRESIDENT: Okay. Can you explain that to me?
PN135
MR ADAMSON: A legal definition of an aggrieved employee can be a current employee. One that has been laid off or one on annual leave. So it does include someone that has been laid off.
PN136
THE DEPUTY PRESIDENT: Right. It's somebody who was laid off who agitated their application by (indistinct)
PN137
MR ADAMSON: Well, it's certainly - I don't find it a very clear kind of clause. It's not a very clear, specific clause. It doesn't - it is quite ambiguous.
PN138
THE DEPUTY PRESIDENT: Which clause do you say is ambiguous?
PN139
MR ADAMSON: Regarding the term 'aggrieved employee'.
PN140
THE DEPUTY PRESIDENT: And where are you looking at that definition?
PN141
MR ADAMSON: From Law Link. Law Insider. I got a legal definition from Law Insider.
PN142
THE DEPUTY PRESIDENT: But you agree that you were terminated around September 2021?
PN143
MR ADAMSON: 28 October to be precise.
PN144
THE DEPUTY PRESIDENT: And you did not make your application until 12 January 2022?
PN145
MR ADAMSON: Correct. Because as an aggrieved employee I followed the processes in the enterprise bargaining - enterprise agreement before making the application.
PN146
THE DEPUTY PRESIDENT: Well, where is the evidence of you following the disputes procedure?
PN147
MR ADAMSON: A couple of emails went between Jeremy and I regarding - a discussion regarding the issue and then a letter of demand followed.
PN148
THE DEPUTY PRESIDENT: Well, where do I find those documents?
PN149
MR ADAMSON: Well, I haven't included them. But I can forward them to you now?
PN150
THE DEPUTY PRESIDENT: What are their dates?
PN151
MR ADAMSON: I'll just be one second. 18 November, the letter of demand. It was acknowledged, the receipt, 22 November. And 25 November, Jeremy emailed saying the letter of demand was being considered. And then another letter on 6 December saying they would pay me the shortfall in the long service leave and that they were denying my claim for notice, termination notice period and severance pay.
PN152
THE DEPUTY PRESIDENT: Okay. So you identified then a letter of demand of 18 November 2021.
PN153
MR ADAMSON: Yes.
PN154
THE DEPUTY PRESIDENT: Now, that's not been filed in your case, but I'll check with Mr Adams or Ms Yu. Is there any difficulty with my accepting that a letter of demand was sent on that day?
PN155
MR ADAMS: A letter of demand was sent. Obviously, it was after the termination - not termination, but he was no loner employed at GFK at that particular time. But he did sent a letter of demand.
PN156
THE DEPUTY PRESIDENT: And what was the date of termination on the respondent's case, do you say?
PN157
MR ADAMSON: From memory - Sonja, can you help me out? Was that 28 October?
PN158
MS ARMETSTED: Yes, it was. 28 October.
PN159
THE DEPUTY PRESIDENT: Thank you.
PN160
MR ADAMSON: I'll just state, it was initially 30 June because they tried to backdate it before the lockdown.
PN161
THE DEPUTY PRESIDENT: That's not in evidence, is it, Mr Adamson?
PN162
MR ADAMSON: No.
PN163
MS YU: Just to clarify, 30 June was, I believe, the last day that Mr Adamson had performed any GFK work.
PN164
THE DEPUTY PRESIDENT: Which date was that?
PN165
MS YU: 30 June.
PN166
THE DEPUTY PRESIDENT: And then there was a lockdown.
PN167
MS YU: No. So we did have a lockdown for a period of time where we didn't have any staff working, but then the majority of staff did return as that lockdown lifted. I'd need to check dates. I believe it was around early September or late August, but at that time Christopher did not choose to return to work.
PN168
MR ADAMSON: And that was due to illness.
PN169
THE DEPUTY PRESIDENT: But it's accepted that the last day of work was in June 2021?
PN170
MS YU: That's correct.
PN171
MR ADAMS: June. The termination was 28 October.
PN172
THE DEPUTY PRESIDENT: Yes.
PN173
MR ADAMSON: Can I just add, Deputy President, that I was rostered on for that whole period during the lockdown.
PN174
THE DEPUTY PRESIDENT: Yes.
PN175
MS YU: We had no roster. There was no roster during the lockdown.
PN176
MR ADAMS: There was no work.
PN177
THE DEPUTY PRESIDENT: Is there anything more you wish to put on the jurisdictional point, Mr Adamson?
PN178
MR ADAMSON: No. That covers all the points, Deputy President.
PN179
THE DEPUTY PRESIDENT: Okay. Is there anything in reply, you would wish to put, Mr Adams?
PN180
MR ADAMS: Only that as this happened after the termination on 28 October, there is still a jurisdictional issue in hat Christopher is making a letter of demand in November and then subsequently since then as well.
PN181
THE DEPUTY PRESIDENT: Thank you. I intend to issue a decision in this matter. This is an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure filed by Mr Christopher Adamson. The application for the Commission to deal with the dispute was relevantly filed on 12 January 2022.
PN182
The dispute related to employment of the applicant by GFK Australia Fieldwork Pty Ltd, a survey company to deal with market research and ratings. The facts of the matter involve the termination by way of redundancy of Mr Adamson, such termination occurring on 28 October 2021.
PN183
The respondent has raised a jurisdictional issue in relation to the application that necessarily was dealt with at the commencement of proceedings. That jurisdictional issue related to when in fact the applicant was an employee, particularly an aggrieved employee, subject to the disputes resolution procedure of the relevant agreement applied to the respondent's operation.
PN184
It is clear that the applicant had ceased employment on 28 October 2021 and that as noted, the application for the Commission to deal with a dispute was not filed until 12 January 2022; some, it would seem, 10 weeks later.
PN185
In circumstances where an aggrieved employee is no longer an employee of a respondent, the authorities are clear that the applicant does not have standing to seek relief, pursuant to section 739 of the Fair Work Act.
PN186
There can be - and I note - I will insert the authority Fairall v St George & Sutherland Community College Inc (2012) 226 IR 402. There can be circumstances where the aggrieved employee, having agitated a dispute prior to the termination of employment, can be seen to be within jurisdiction. However, that is not the case in these proceedings, because it is clear and understood between the parties that the letter of demand relating to the claim that was the subject of the dispute notification was not sent until 18 November 2021 or after the termination of employment of the applicant.
PN187
The applicant not being an aggrieved employee pursuant to any dispute resolution procedure, he cannot progress his application for relief pursuant to section 739 of the Fair Work Act. In that circumstance, I (indistinct) no reasonable prospect of success and pursuant to section 587 of the Fair Work Act I dismiss the application.
PN188
That's the conclusion of my decision. Mr Adamson, is there anything further you wish to put today?
PN189
MR ADAMSON: No, that's fine. I'll have to follow it through another jurisdiction.
PN190
THE DEPUTY PRESIDENT: Yes.
PN191
MR ADAMSON: I would have gone straight there if I had have been given the right advice.
PN192
THE DEPUTY PRESIDENT: No problems. Anything further today, Mr Adams or Ms Yu?
PN193
MR ADAMS: Nothing, Deputy President. And thank you for your time.
PN194
MS YU: Nothing.
PN195
THE DEPUTY PRESIDENT: I thank the parties for their attendance and their prompt method of dealing with this matter. I will adjourn the matter indefinitely. Thank you very much.
PN196
MR ADAMS: Thank you.
ADJOURNED INDEFINITELY [10.36 AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 FORM F10 APPLICATION......................................................... PN81
EXHIBIT #A2 NINE-PARAGRAPH STATEMENT OF MR ADAMSON....... PN95
EXHIBIT #A3 STATEMENT OF MR ADAMSON DATED 09/02/2022........ PN101
EXHIBIT #R1 RESPONDENT OUTLINE OF SUBMISSIONS...................... PN113