PN1

VICE PRESIDENT CATANZARITI: Thank you. I note that we have on the Bench this morning Deputy President Clancy remotely and Commissioner Bissett and myself in person in Melbourne. I will take the appearances. Mr Wright?

PN2

MR A WRIGHT: Yes, good morning, sir, it's Andrew Wright for the appellant.

PN3

VICE PRESIDENT CATANZARITI: Yes, thank you, and Mr Snow is appearing for the respondent?

PN4

MR W SNOW: Good morning, Vice President, that's correct.

PN5

VICE PRESIDENT CATANZARITI: So that we are all clear, I will grant permission to both parties on the basis that both have got legal representation, but this matter is listed for permission to appeal only. The directions made are very clear, that the respondent is required to do nothing until the permission has been determined. I foreshadow that and make that statement because in the event down the track that some cost application were to be made by the respondent, that would be taken into account, the fact they were not required to be here today or take any steps until the permission issue has been determined. You understand what I am saying, Mr Snow?

PN6

MR SNOW: Yes, that's understood.

PN7

VICE PRESIDENT CATANZARITI: As I say, the matter has been listed for permission and we will hear Mr Wright in a moment. Mr Wright, the Bench has read your material and, speaking for myself, we need you to amplify what you say is the public interest, because we are dealing with the permission point today.

PN8

In the actual appeal, there is nothing mentioned of the public interest and trying to divine it from your submissions, it appears that you are making an assertion that because there were award breaches, that somehow enlivens the public interest. If that is the extent of it, so be it, but otherwise you should feel free to amplify and you must focus today on the granting of permission to appeal, not on the merits of the appeal. It is a permission question today, so we need to understand where the public interest lies in relation to this appeal.

PN9

Please proceed, Mr Wright.

PN10

MR WRIGHT: Thank you, Vice President. In regards to this, there are obviously written submissions in respect to the permission to appeal. I don't intend to go back over that same material, Vice President and Full Bench. What I do intend to do is, as stated, which is elaborate on those points.

PN11

In particular, I would like to refer, to a very large extent, in respect to point 1. Point 1 relates to what is outlined as the error of law and, indeed, the failure to consider a breach of the award when also considering mitigation. Let me just clear that up. It probably isn't particularly clear.

PN12

The decision at law manifested injustice, and to elaborate on that, that's an error in applying the applicable statutory test as per section 387 of the Fair Work Act. Section 387 requires the Fair Work Commission must take into account section 387(a) through to (h), and we say that that hadn't occurred, and let me outline why that was the case.

PN13

The failure of the Deputy President to acknowledge at all the evidence associated with the lack of lunch breaks generally, or any breaks, during the appellant's working day, or the timeliness of those breaks, is significant when considering whether the reason for termination was or was not prejudicial, or, indeed, whether the reasons were sound or well-founded. If it isn't established then it hasn't satisfied 387(a). It may be the case that there is a reason to terminate at that point, but we say that there hasn't been a valid reason at that point.

PN14

There is also a flow-on effect with the (audio malfunction) of the Act.

PN15

VICE PRESIDENT CATANZARITI: Sorry, Mr Wright, we are getting some feedback (audio malfunction). If anybody who is not speaking could go on mute, that would assist. Yes, please proceed, Mr Wright.

PN16

MR WRIGHT: Thank you, Vice President. I note that I was also getting the feedback as well. It seems that's fixed itself up. Thank you. Actually, we're still getting that - I'm not sure if you are as well, Vice President - that feedback.

PN17

VICE PRESIDENT CATANZARITI: We're not getting it now, we can hear you.

PN18

MR WRIGHT: Okay. I'm still getting it, but I'm happy to continue.

PN19

Full Bench, as I was saying, there is also a flow-on effect. I've mentioned section 387(a) and why, whilst there may be a reason to terminate at that point, there isn't, from our submissions, a valid one. Then the flow-on effect with the above issue is in respect to section 387(h) of the Act, which is that the Fair Work Commission must consider other matters that are pertinent, or I think the word is relevant, to the issues that are being agitated.

PN20

The Commission, we say, needed to consider section 387(h) as it related to a lack of breaks or the breaches that we say occurred in the award and then determine whether that warranted a sanction based upon the behaviour that was found for something less than the termination. That's what section 387(h) is there to do and we say that the Deputy President didn't turn his mind to that at all.

PN21

VICE PRESIDENT CATANZARITI: So that I'm clear, are you saying that because there's an award breach, that gives you a get out of gaol card in relation to your own behaviour, because that seems to be what you are saying in terms of your position, and how can it be the case?

PN22

MR WRIGHT: That isn't what I'm saying, Vice President.

PN23

VICE PRESIDENT CATANZARITI: That isn't what you're saying; okay.

PN24

MR WRIGHT: No, it is not what I'm saying.

PN25

VICE PRESIDENT CATANZARITI: It's not what you're saying. Well, what is it that you're saying, so we are clear, because the Deputy President focused on the behaviours that occurred.

PN26

MR WRIGHT: Yes, that's right. Just to be clear, the reason why the lack of lunch breaks is important, if we leave aside for a moment the fact that I say in my submissions that this is a breach of the award, what we have in the evidence and what was at the very least discussed was the fact that there were few lunch breaks that were given to staff generally, and that included the appellant. Now, we say that that is important and that goes to the heart of the behaviour because of the timeliness of the actual behaviour itself. So, just to be clear, the reason why - - -

PN27

VICE PRESIDENT CATANZARITI: Just to be clear, the proposition I put to you was, accepting for one moment that there was an award breach, which Mr Snow may not agree, but accepting for one moment the proposition there was award breaches, do you say that in circumstances where there is an award breach, we don't have to look at the behaviours that occur, in other words, it's a get out of gaol card? That was a simple question I put to you.

PN28

MR WRIGHT: The answer is, no, it isn't a get out of gaol card, but certainly, looking at section 387(h), there should be a significant amount of weight put on something as sinister as a breach of an award as it relates to the behaviour that occurs as a consequence of that. So that's - - -

PN29

VICE PRESIDENT CATANZARITI: Mr Wright, you keep going around and avoiding this point. I mean it either is or it isn't. You're now saying weigh up 387(h) and because of the breach of the award, that should have been taken into account and neutralise the behaviours. That's the proposition I keep putting to you. Are you actually saying that or not?

PN30

MR WRIGHT: We are saying that the breaches of the award was a reason why the appellant behaved like she did. Then it would be the case that if there wasn't breaches of the award which was precipitated by the employer, then should section 387(h) be considered by the Fair Work Commission to determine mitigation, and the answer to that question is absolutely it should.

PN31

VICE PRESIDENT CATANZARITI: Where is the public interest in all of this?

PN32

MR WRIGHT: The public interest is in respect of the test, Vice President. There's a statutory test that has to be adhered to by the Commission to determine whether or not a termination is indeed a valid termination and whether or not the criteria from section 387(a) through to (h) has been adhered to by the Fair Work Commission. We say that it hasn't and, as a result of that, the public interest is that that is a failure to apply a test and that decision manifests an injustice in regards to the decision.

PN33

COMMISSIONER BISSETT: It's a bit circular, your position on the public interest, though, isn't it, Mr Wright, because you say there's an error, therefore it attracts the public interest automatically?

PN34

MR WRIGHT: Yes, what I'm saying - - -

PN35

COMMISSIONER BISSETT: That makes the public interest test irrelevant, doesn't it, because you say an error creates the public interest?

PN36

MR WRIGHT: No, I think the manifestation of the injustice is the fact that a statutory criteria created by parliament hasn't been adhered to by the Fair Work Commission, and the public interest then is that that has to occur in order for a decision to be a bona fide decision, to be a decision that can't be appealed. The public interest requires that. It requires a decision to be in accordance with the legislation and, if it isn't, it's beyond the power or beyond the scope of the intention of parliament. Does that answer your question, Deputy President, or have I not answered that?

PN37

COMMISSIONER BISSETT: It was the Commissioner, but, yes, I've heard your answer.

PN38

MR WRIGHT: Sorry, Commissioner.

PN39

DEPUTY PRESIDENT CLANCY: Mr Wright, it's Deputy President Clancy. On 27 September, did not Ms Stodart have a lunch break?

PN40

MR WRIGHT: Yes, Deputy President, so therein lies the issue. Our issue is quite simply that her experience had been - the pattern of behaviour of this employer was that the online department, generally speaking, did not get a lunch break, they did not get their 15-minute breaks, and the reason that that was so, Deputy President, is because that department, in particular throughout the COVID period, was particularly busy taking online orders. It was accepted, and I have only just got the transcript and, Deputy President, I can take the Full Bench to it, but certainly it was agreed by management that workers, including the appellant, wasn't getting her breaks, wasn't getting - - -

PN41

DEPUTY PRESIDENT CLANCY: Mr Wright, if your complaint is that there's been breaches of the award and yet, on the day in question, a break has been taken, doesn't that rather punctuate the submission you are attempting to make on the public interest?

PN42

MR WRIGHT: Deputy President, I think if we only look at that one day in isolation, the answer might be yes, but what was occurring was that the volume of work that a person would be doing - - -

PN43

DEPUTY PRESIDENT CLANCY: Mr Wright, there's an interesting point you have just made. You say if we look at the 27th in isolation - you are suggesting we can't look at it in isolation, we must look at everything else that's occurred, and yet, in finding a valid reason for the termination, the Deputy President looked at the events of the 27th in context. So what is it from your perspective? Are we to look at the 27th in context or are we looking at it in isolation? For my part, I can't see, in circumstances where a break was taken on the 27th, that we are nonetheless to look at all the other days on which you allege a break wasn't taken, and your proposition is that the case establishes widespread breaches of the award, which wasn't the matter before the Commission.

PN44

MR WRIGHT: Yes. If I can make the submission in regards to what you have raised, Deputy President. This was a worker who would generally go to work and not expect from 7 am until she finished her shift around 4 pm a break. On 27 September, she went into work and she was told, as a consequence of not having a break previously, she should go and have a break. Now, her evidence then was she hadn't factored that break into her working day such that when she got back from her lunch break, which every worker is entitled to, she then felt significantly overwhelmed, stressed and anxious as a result of the amount of work that she then had to do.

PN45

My point is that if there hadn't been past breaches, if there had been in place a system like there is in most other employment arrangements, an opportunity to go and have both a 15-minute break after a certain amount of time working and a lunch break, then it was our submission then and it was the evidence at first instance that she wouldn't then have been as stressed, as anxious, having returned from her break.

PN46

The reason that this is pertinent is because of the timing of it. The timing is immediately upon returning from a lunch break that she wouldn't normally get that she was told to get, she feels overwhelmed by the sheer volume of work that then she has to do.

PN47

My submissions again are had the employer, and they accept this - both witnesses from the respondent accepted this - had she been provided with lunch breaks in accordance with the award and 15-minute breaks in accordance with the award in the past, then she would have allowed for that in her working day. That's the thrust of the submissions; that's where section 387(h) has got work to do. The question, at the very least, needs to be considered. That issue needs to be, and must be, considered. If there is a finding that, well, no, she had a lunch break that day, and if we look at this in context then that's fine, then at least then the Fair Work Commission could then say, 'Well, we did consider it, we must consider it and we did consider it, and we didn't find that there was anything there to change our opinion or to downplay or to mitigate or to reduce the penalty, the penalty being termination of the employment contract.'

PN48

DEPUTY PRESIDENT CLANCY: But it didn't need to make that finding. It's not a disputed fact that there was a break taken on the 27th.

PN49

MR WRIGHT: No, but, Deputy President, what my submissions are is that there needed to be - the Deputy President needed to turn his mind to mitigation, and I say that one aspect of the mitigation, and indeed he gave a warning about this. I have said in my written submissions that it was a warning for Ms Campbell and I am incorrect about that, it was to Ms Noordhoek, having read the transcript, about potentially incriminating evidence as a result of breaches of the award. At the very least, Deputy President, what needed to occur, in my understanding of the meaning of the legislation, is that 387(h) needed to be considered in respect of that particular factual issue.

PN50

I don't think there can be the potential to simply ignore it and say that's not a mitigating reason and then move on. It needs to then at least be documented. If section 387(h) and those facts were taken into account, then I am saying that that would have been a mitigating reason.

PN51

COMMISSIONER BISSETT: But, Mr Wright - it's the Commissioner here - were any submissions put with respect to 387(h) in the hearing before the Deputy President?

PN52

MR WRIGHT: Sorry, Commissioner, were they put?

PN53

COMMISSIONER BISSETT: Did you put any submissions about that matter to the Deputy President on behalf of the applicant?

PN54

MR WRIGHT: About the mitigating reasons?

PN55

COMMISSIONER BISSETT: Yes, about the award breach, about what you've just spoken about. You are saying it's a critical matter under 387(h). I'm just wondering whether the submissions were put before the Deputy President.

PN56

MR WRIGHT: In the closing submission? Are you referring to - in the evidence - I can't recall if it was specifically raised in the closing submissions, Commissioner, but what did occur is that, in cross-examination, two of the three witnesses that the respondent called, that evidence was put to then, they then answered it and one of the answers, prior to them answering it, precipitated a warning from the Deputy President. So, he was well aware - - -

PN57

COMMISSIONER BISSETT: Putting aside the warning that was given by the Deputy President, because I'm not quite sure of the relevance of that, you're saying that no specific submissions were put on this question for the Deputy President - submissions, not evidence. You didn't draw it to the Deputy President's attention at all?

PN58

MR WRIGHT: I can't recall if that was - I'm sure that's why I would have been asking in cross-examination those issues, Commissioner. My understanding would be that that was put, but I can't - I haven't had the opportunity to look at the material that I was given a moment ago in the transcript to see exactly when that was put. I presume it was also put as well in the originating application. I dare say the answer to your question, Commissioner, is we would have put it. I am happy to take you to it if I can have some time to have a look.

PN59

COMMISSIONER BISSETT: Thank you.

PN60

VICE PRESIDENT CATANZARITI: Yes, please continue.

PN61

MR WRIGHT: Thanks, Vice President. What I was going to do was actually take the Full Bench to some of the evidence that relates to the issue that I have already canvassed. The transcript is probably an important place to start. We have got the transcript here. This is on Tuesday 8 February. If we can go to PN 1404. This is Ms Noordhoek. She's a senior manager with the respondent. In cross-examination at PN 1404, it mentions:

PN62

Are you aware, as the HR manager, that other managers within Supermarket A have given evidence, clear evidence, to state that it is common, very common, for people not to have breaks in the online department? Are you aware of that?‑‑‑I am aware that there is a problem in the online department which we have been working with to try and resolve in terms of staff taking breaks.

PN63

Then if we move on to PN 1406, the Deputy President, 'Sorry, just pause there.' The reason that he's saying 'pause' is probably pertinent to what was raised just before that at 1405, and this is the question:

PN64

Do you accept that there is an issue there that has to be rectified and that there is a breach of the agreement in some instances?‑‑‑I'm not aware exactly how often but - - -

PN65

Then the Deputy President:

PN66

Sorry, just pause there. It is appropriate to give Ms Noordhoek a caution that she has been asked a question which potentially concerns a response that may constitute or be a statement concerning an alleged offence given that the question used words 'breach of agreement'. I have given the caution.

PN67

Then it continues on at PN 1409:

PN68

You knew that there were issues that needed to be rectified about breaks in your online department?‑‑‑It has been raised as a concern.

PN69

That was the response. Then again, at PN 1414, the question was - - -

PN70

VICE PRESIDENT CATANZARITI: Mr Wright, I've had a quick look at the transcript again in terms of your submissions on the day. They really don't do what the Commissioner put to you in your submissions. You might want to look at your submissions. If you want to have a 15-minute break, we will give you a 15-minute break.

PN71

MR WRIGHT: Yes, Vice President, I would be happy to have a break.

PN72

VICE PRESIDENT CATANZARITI: Yes, and focus on what you have actually said to the Deputy President below. Thank you. The Commission is adjourned.

SHORT ADJOURNMENT [12.29 PM]

RESUMED [12.46 PM]

PN73

VICE PRESIDENT CATANZARITI: Yes, thank you, Mr Wright, if you could assist us, that would be great.

PN74

MR WRIGHT: Yes, thank you, Vice President, thank you, Full Bench. Look, I have had a look at my submissions and I do accept that I didn't make any specific pleadings or statement in regards to the issue that I have raised. What there is in its stead is the evidence throughout the trial book as well as that in the transcript. My submissions are still that whilst the closing submissions may not have made any reference to section 387(h), it was still a requirement for the Fair Work Commission to consider that aspect of the legislation based upon the facts that had been espoused at the hearing.

PN75

The facts at hearing, page 365 at paragraph 8, which is the Form 2, if the Full Bench would turn to that, it says, at the last sentence of paragraph 8 at page 365:

PN76

Basic requirements like working equipment and taking breaks were not always an option.

PN77

At the very bottom of page 365 and the top of page 366, at paragraph 9, it says:

PN78

I felt like all was under control and fine.

PN79

This is prior to the lunch break:

PN80

I then continued on until my supervisor surprised me -

PN81

and this is where I am going with this: there's a surprise that a statutory right under an award is provided. She was surprised with a lunch break:

PN82

This is also unusual in this department. Under the time pressures, breaks, if taken, occur at the end of the shift. This often results in breaks not taken as required.

PN83

Then also at page 365, she says - which is after coming back from lunch - at paragraph 9:

PN84

Now I was under intense pressure to complete two orders in under 45 minutes. This is where I got stressed and overwhelmed.

PN85

Again in the trial book at page 80, if the Full Bench can go there, at paragraph 59 - - -

PN86

VICE PRESIDENT CATANZARITI: Sorry, are you going back to the transcript now? Is that what you're doing?

PN87

MR WRIGHT: No, sorry, we are going to the appeal book, Vice President, page 80, paragraph 59.

PN88

VICE PRESIDENT CATANZARITI: Page 80, thank you.

PN89

MR WRIGHT: Page 80, paragraph 59, the last sentence of that. That supports what I just said:

PN90

My online supervisor surprised me with a lunch break.

PN91

Then, at paragraph 61:

PN92

I felt overwhelmed and stressed and wouldn't have taken a break if it was my choice...the serious time pressures I was under and didn't feel at that time there was time for me to take a break.

PN93

If I could turn now to the transcript. We have already gone through Ms Noordhoek's evidence. If we could turn to Ms Campbell's evidence. I will be brief here. There's only a few things I want to raise, and that is at PN 918, we have got cross-examination at 3.56 pm, and then, at PN 918, it states - and this is the question:

PN94

You mentioned that the online department is fast-paced and there's not much time to stop. I presume the only time you stop is for set breaks?

PN95

That was the question, and the answer to that was, 'Sometimes.'

PN96

Then, if the Full Bench flicks over the page, Ms Campbell continues - I beg your pardon, the question continues:

PN97

And when you say 'sometimes', is it the case that there are employees that have a very good work ethic, but perhaps too good, whereby they work non-stop throughout the day because it's so fast-paced?

PN98

The answer to that is:

PN99

It would be most of the department.

PN100

The question then is:

PN101

So lunch, literally, is on the hop?

PN102

meaning that it's taken whilst still working, which is my submission, and the answer to that question is 'Yes'.

PN103

Again, I am not going to harp on it much more, but if the Full Bench can just allow me this, and then it says, at PN 921:

PN104

And 15-minute breaks are few and far between, Ms Campbell. Is that fair to say?‑‑‑That's correct.

PN105

Then the last couple of parts in the transcript is at PN 924:

PN106

Are these issues where people, employees working in the online department store, are these the kind of issues that are often raised? Are people annoyed they're not getting their breaks?

PN107

The answer is:

PN108

No, because it's sort of brought up when I have - like coming for the interview, I sort of tell them that's the case with our department because it is fast-paced and it is - we are in a time frame, so we tend to - yes, it can be hard, it can be a hard day where we tend not to stop.

PN109

Then very lastly, at PN 925:

PN110

And that might mean that, I guess, as well as it being fast-paced and not having breaks, I guess people can get quite tired and overwhelmed by the work?

PN111

The answer to that is, 'Oh, yes.'

PN112

And is that your experience?‑‑‑Yes.

PN113

That is the evidence that was open to the Deputy President to consider when taking into account (a) through to (h) under section 387 and we say that wasn't and, as a consequence, there had been a decision that was errant, or at least there was a principle of law that hadn't been adhered to and, as such, it is in the public interest.

PN114

DEPUTY PRESIDENT CLANCY: You made no submission to this effect.

PN115

MR WRIGHT: I agree with that.

PN116

DEPUTY PRESIDENT CLANCY: Nowhere in your written submissions, nowhere in the oral submissions.

PN117

MR WRIGHT: No, that's - I agree with that, Deputy President. I guess we - this was raised in the cross-examination that I just took the Full Bench to. I accept entirely that in my closing submissions, I could have been more thorough, and then - - -

PN118

DEPUTY PRESIDENT CLANCY: It's not a matter of being thorough, you didn't make the submission at all. There's nothing in your submissions that goes to the question of mitigation for the behaviour on the 27th, is there?

PN119

MR WRIGHT: Deputy President, I agree. I'm saying that is a fault that I'm happy to bear. What I'm also saying is that I've taken - - -

PN120

DEPUTY PRESIDENT CLANCY: What you're seeking to do is run your case again.

PN121

MR WRIGHT: Well, I'm making a submission and the submission, Deputy President, is that under section 387(a) through to (h), the Deputy President, in accordance with the statutory criteria under the legislation, was required to consider each of those things. The fact that I, as the advocate, didn't specifically point out in my submissions that that is something that he should have taken into account, he needed to take that into account in his capacity as a Deputy President in the Fair Work Commission.

PN122

I accept the criticism, indeed if it is that, that I didn't, as the advocate, pinpoint in the evidence, specifically in cross-examination, which is when that evidence was essentially available and usable, I accept that I didn't, as the advocate, put that in my closing submissions.

PN123

I am saying now that that shouldn't be a reason or an excuse for the Deputy President then not to consider that himself, because it was so blatantly obvious in the cross-examination, especially giving a warning. I mean it's very unusual in this jurisdiction to be giving warnings. I have heard warnings that occur, you know, over the past 15 or so years of appearing in this jurisdiction - - -

PN124

COMMISSIONER BISSETT: Mr Wright, we are talking about this matter; we are not talking about what may or may not have happened in other matters, so perhaps we can (audio malfunction).

PN125

MR WRIGHT: Yes, Commissioner, certainly.

PN126

COMMISSIONER BISSETT: Mr Wright, just on this, because you agree that you didn't make any submissions on it, and it seems to me that the point is not a straightforward point because your problem was not what happened on 27 September, it was what had happened every other day before that in terms of people not being given their award entitlements of meal breaks, isn't it?

PN127

MR WRIGHT: Absolutely. Commissioner, I think - I'm probably not explaining it - - -

PN128

COMMISSIONER BISSETT: Sorry, Mr Wright, I don't mean to interrupt you, but the point is that that's a nuanced mitigation issue of the 29 September conduct because you actually wanted to rely on what had or hadn't happened on other days to explain the 29 September conduct and, in that respect, not bringing that particular nuance of the issue to the Deputy President's attention is problematic, isn't it?

PN129

MR WRIGHT: Well, Commissioner, I would respectfully disagree. I think the evidence that I have just raised in front of the Full Bench, there was sufficient evidence there for the Deputy President to consider that. It was obvious that that needed to be taken into account. It was the appellant's evidence, which wasn't unsettled by the respondent, and, as a result that should have been taken into account.

PN130

COMMISSIONER BISSETT: Thank you.

PN131

VICE PRESIDENT CATANZARITI: Thank you. Anything further, Mr Wright?

PN132

MR WRIGHT: Vice President, that is the crux of - there's two other appeal points. From my standpoint, they're quite broad assertions, but the last one relates to - and if you don't mind, Full Bench, what I might do is just jump to the last one.

PN133

The last one relates to an error of fact and that is specifically in relation to why the appellant was terminated. We say that it was clear - and I've pointed this out and I don't intend to again - but it was clear on the evidence before the Deputy President that the termination by the respondent was for serious misconduct.

PN134

Now, I accept that that's probably on some shaky ground if, indeed, it was simply the respondent that chose their wording perhaps a little bit too quickly or flippantly, but what actually occurred here, based upon the evidence that I have produced in the written submissions, is that the respondent, and indeed their solicitors, continued on for quite a period of time to call the termination of employment serious misconduct. The Deputy President, in that regard, we say, erred when considering on what basis the termination occurred, and that is an error of fact.

PN135

The question, I'm sure, that the Full Bench has for me is, 'So what?' The answer to that therein lies in appeal ground 2, and I say on that, and the Full Bench might not be with me on this, but I say on that it does matter whether or not a person is terminated for serious misconduct or simply misconduct, and that a valid reason, a valid reason to terminate, would have to apply by looking at the entirety of the termination, and my written submissions go to that point.

PN136

I am happy to answer questions or elaborate further if the Bench wishes me to.

PN137

VICE PRESIDENT CATANZARITI: Thank you. Any further questions? Deputy President Clancy?

PN138

DEPUTY PRESIDENT CLANCY: Well, I just don't understand that last submission at all. The Commission has to be satisfied, or take into account, whether there's a valid reason. If it reaches that point of satisfaction, are you suggesting that there has to be a finding of serious misconduct?

PN139

MR WRIGHT: Deputy President, in order to find a valid reason, you actually need to look at the reasons behind the termination. Now, if the reason behind the termination was something other than what the reason was that the respondent says it was, or the employer says it was, then that is something that would go to the validity of the termination.

PN140

DEPUTY PRESIDENT CLANCY: The Commission has to satisfy itself or ask itself the question whether there's a valid reason for the termination. The reason that's given by the employer isn't simply rubber-stamped by the Commission on the hearing of an unfair dismissal application.

PN141

MR WRIGHT: No, I accept, and I accept the case law on this point, Deputy President, that the Commission doesn't stand in the shoes of the employer and, indeed, they look at the case afresh, but I think what the Commission also needs to look at is the reasons surrounding the termination.

PN142

Now, that can turn on procedural issues. If it is serious misconduct, as the respondent said it was in this case, then the question there is whether or not that can be a termination on the spot, or summary dismissal, as we know it's called, and indeed then, the non-reliance on section 117 of the Fair Work Act and the non-requirement to provide any notice as a result of that particular conduct - - -

PN143

DEPUTY PRESIDENT CLANCY: But how does that arise in this case where notice was paid? There is no question of a breach of section 117.

PN144

MR WRIGHT: Absolutely. Look, I agree entirely with the question of the Deputy President, and what I've done is raised it as an issue. It's raised as an issue and I've said - well, this is a matter that presents itself on quite a regular basis in the Fair Work Commission and I have attempted to look at this in this particular matter to then see whether or not that issue can be dealt with on this appeal.

PN145

The fact is that there has been notice paid to the appellant, but if the misconduct was something other than serious misconduct, then it would still require the Commission to look at section 392, because the Commission, in my submission, would still have to say, 'Well, the actual termination was, in and of itself, unfair for serious misconduct, but, under section 392, as far as remedy is concerned, well, there isn't one which we can take', or, alternatively, 'Is there any other remedy that would be (indistinct) in providing to the appellant?'

PN146

DEPUTY PRESIDENT CLANCY: I don't understand your submission in relation to section 392 either because, in section 392, it doesn't speak of 'serious misconduct', in section 392(3) it talks of 'misconduct'.

PN147

MR WRIGHT: Section 392, Deputy President, does talk of that. It also talks about 'any other matter' under subsection (g) 'that the Fair Work Commission considers relevant', and if someone was terminated for something other than serious misconduct and they weren't provided with, as an example, notice, or they weren't provided with the requirements under section 117, then that is something that the Fair Work Commission should take into account.

PN148

DEPUTY PRESIDENT CLANCY: Thank you. I have nothing further, Vice President.

PN149

VICE PRESIDENT CATANZARITI: Thank you. Commissioner Bissett?

PN150

COMMISSIONER BISSETT: No, thank you.

PN151

VICE PRESIDENT CATANZARITI: Thank you. Mr Snow, anything in reply?

PN152

MR SNOW: Yes, thank you very much, Vice President. Just briefly, the task before the Full Bench today is to understand whether or not there are public interest grounds, and permission must not be granted by the Commission unless it is satisfied that it is in the public interest to do so.

PN153

The issues arising under public interest are well understood and, look, I'm actually just simply referring indeed to the Bench Book and the authority of Coal & Allied Mining Services v Lawler with respect to those issues where public interest may arise in respect of where there's a matter of general importance and general application, where there's a diversity of decisions, to the guidance from a Full Bench is required where the original decision manifests an injustice or the result is counterintuitive, and that may perhaps be the ground on which my friend is making the submissions, or also where the legal principles appear disharmonious when compared with other recent decisions in similar matters and, likewise, public interest isn't satisfied merely when there is a preference for a different result.

PN154

I would like to draw, in particular, the Full Bench's mind to this issue of an alleged breach of an award. There are two very important aspects of that assertion, putting to one side the fact that these are arguments which were not explored in front of Anderson DP on 7 or 8 February.

PN155

The first one is the extent of the evidence in relation to breaks taken by the appellant. There were concessions made by Ms Campbell, a witness for the respondent, that it could get busy and that many staff worked through breaks and that there was a fast-paced nature of the environment. This was all given under cross-examination.

PN156

However, there was no cross-examination of Ms Campbell in relation to the applicant, or the appellant, Ms Stodart, like what was her position, what breaks did she take or didn't she take and, crucially, the evidence is that on 27 September, she did in fact take a break, and that's when the respondent says further insubordinate, disrespectful and discourteous behaviour occurred as a result, and Ms Campbell's evidence talks about that as well. So that's number one, that is, the extent of any evidence of the break.

PN157

But, more importantly, and I think if we look at the assertion that the respondent has breached an award - the applicable award is the General Retail Industry Award - that award, in fact, has no application to the respondent. Ms Noordhoek - - -

PN158

VICE PRESIDENT CATANZARITI: Are you telling us this for the first time or is it in the actual way you ran the case below? There is a limited issue of permission. We didn't give you permission - - -

PN159

MR SNOW: No, no, this is in the case below. In the case below - - -

PN160

VICE PRESIDENT CATANZARITI: Where did you put the submission about no application of the award?

PN161

MR SNOW: Well, it's simply - it's a statement of fact, given that Ms Noordhoek, at paragraph 1404 of the transcript of 8 February, talks about a requirement under their EB that staff are provided with a particular break.

PN162

VICE PRESIDENT CATANZARITI: Okay, so you are drawing a distinction between a breach of the EB and the award now, are you? Is that what you're doing?

PN163

MR SNOW: That's correct.

PN164

VICE PRESIDENT CATANZARITI: Yes, okay, well perhaps you don't need to push that any further.

PN165

MR SNOW: Noted. And that's - the CRG Agreement 2018 is the particular enterprise agreement that applies to the respondent.

PN166

In summary, the appellant hasn't identified any issues which would enliven the public interest such that the Full Bench should give permission for it to appeal, nor has it identified any significant error of fact and, finally, with respect to the submission that the Deputy President failed to identify a particular other relevant matter, which, in fairness to the Deputy President, wasn't expressly put to him for his consideration, under the decision, it can be seen that the Deputy President did consider other relevant matters in the context of section 387(h), so the notion that the decision was somehow affected by a failure to give proper consideration to an issue which the Commission must turn its mind to must also be rejected.

PN167

On all of those grounds, the respondent says that there is no public interest enlivened under this appeal and permission must be refused.

PN168

VICE PRESIDENT CATANZARITI: Thank you. Mr Wright, anything further?

PN169

MR WRIGHT: No, thank you, Vice President and Full Bench.

PN170

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

ADJOURNED INDEFINITELY [1.12 PM]