(iii) the employer believed it was only issuing a written warning for the purpose of dealing with the applicant's misconduct in accordance with fair and proper employment practice.
325 Mr Mulcahy submitted that the applicant lacked consistency in claiming the benefits of the award, whilst previously enjoying the benefits of a salary package including above award payments, a fully maintained motor vehicle and use of the farm cottage.
326 Mr Mulcahy submitted that it was clear that the applicant had agreed to a salary package and his denial of that agreement is inconsistent with the acceptance of the benefits the employer says formed part of the salary package.
327 Mr Mulcahy submitted that issues of credit weighed against the applicant, putting that:
· His denial of the salary package and additional duties is inconsistent.
· The letter sought from Mr Jeffrey to assist in the purchase of a vehicle was drafted by Mr Alley, not Mr Jeffrey, was false and misleading, not used for the stated purpose but created for the purpose of litigation with the employer to establish an award rate of pay as a senior nursery tradesperson.
· Mr Alley's evidence of his application to Casino Meatworks is inconsistent and reveals an attempt to conceal the early dates of his interest and application so as to contradict the employer's allegation that the dispute between the applicant and the employer was contrived.
· The application for employment to Alpine Nurseries, a long term customer of the employer, was not directed to obtaining employment as there is no evidence of any other applications to a nursery, but directed to placing the employer in a poor light. Mr Mulcahy submitted that Mr Alley gave no evidence of his own explanation to Alpine as to why after 14 years he sought alternative employment, putting that Mr Alley was well aware that an enquiry would be made to the employer who would be obliged to tell the truth, that Mr Alley was still in its employ and that industrial issues were afoot.
328 Mr Mulcahy submitted that much of the evidence brought by the applicant was indirect and should not be preferred over that of Messrs Baker and Creagh.
329 Mr Mulcahy submitted that Mr Baker genuinely believed that he was acting in accordance with Mr Alley's wishes when he instructed Mr Creagh to reduce Mr Alley's hours to 38 per week.
330 Mr Mulcahy submitted that the employer was not aware until 23 January 2005 that Mr Alley planned to be in dispute with the employer and accordingly did not make contemporaneous notes of events now said to be material.
331 Mr Mulcahy submitted that the evidence of Messrs Baker and Creagh was given in a forthright and truthful manner, Mr Baker conceding that he had been angry with the way in which Mr Alley had presented the list of issues on 6 January 2005; and that the evidence was more consistent with Mr Baker being annoyed.
332 Mr Mulcahy submitted that Mr Creagh had no incentive to give evidence that conflicts with Mr Alley as he held the senior position at the Teven nursery prior to Mr Alley's employment and his position was not in jeopardy, despite what Mr Mulcahy submitted was:
The applicant's numerous attempts to undermine Andy Creagh's position in the company through allegations of underperformance.
333 Mr Mulcahy submitted that the evidence of Mr Kerry should be accepted. Mr Mulcahy put that Mr Kerry:
"presented as an impressive witness who gave evidence motivated by a desire to rectify unjust and unfair accusations against his supervisors and the respondent itself.
334 Mr Mulcahy put that the evidence of Mr Kerry confirmed that Mr Jeffrey supervised the majority of employees and that Mr Alley oversaw one, possibly two, employees in the propagation area.
335 Mr Mulcahy submitted that the uncertainty of when and where Mr Alley advocated the "go slow" arose from Mr Kerry not being aware that Mr Alley planned to be in dispute with the employer and accordingly no contemporaneous notes were made. It is Mr Mulcahy's submission that Mr Kerry had also suffered a reduction in hours to 38 per week and had an interest in being paid overtime, putting that the evidence of Mr Kerry that Mr Alley advocated a "go slow" on either Monday 10 January, or Tuesday 11 January 2005 is sufficiently accurate so as to be accepted.
336 Mr Mulcahy submitted that the evidence of Mr Jeffrey that Mr Alley had been aggressive toward the employer on the non payment of a Christmas bonus was of significance; and that there had been a clear indication from Mr Alley to Mr Jeffrey in December 2004 that legal advice would be sought prior to resumption of work on 5 January 2005.
337 Mr Mulcahy submitted that the applicant has not made out a case for relief from victimisation, putting that there is no evidence that Mr Alley was a member or an official of an industrial organisation of employees, or otherwise elected representative of the employees.
338 Mr Mulcahy submitted that Mr Alley was not victimised, putting that there is uncontested evidence that payments were made in accordance with the award following notification, and that hours and consequent remuneration were only reduced at Mr Alley's request.
339 Mr Mulcahy submitted that there was no change in Mr Alley's duties nor was there any complaint whatsoever from Mr Alley as to the employer's conduct concerning his employment generally between 7 January 2005 and Mr Alley's departure on long service leave on 14 January 2005.
340 Mr Mulcahy submitted that the warning letter of 12 January 2005 could not be characterised as victimisation.
341 Mr Mulcahy submitted that if Mr Alley had been victimised then what he described as "classic complaints", such as segregation from the other employees, abusive conduct from more senior employees and other workers, withdrawal of non-remuneration privileges and the allocation of demeaning work, would be expected. Mr Mulcahy submitted that these complaints were not made as no such conduct took place, so reinforcing his submission that Mr Alley was not victimised.
342 Mr Mulcahy submitted that Mr Alley has failed to mitigate his loss by:
· making no attempt to reconcile with the employer, on the contrary pursuing complaints to WorkCover which it is submitted were designed to further antagonise the relationship between Mr Alley and the employer; and
· minimal effort and success in alternative employment prior to becoming self employed.
343 Mr Mulcahy submitted that it was Mr Alley's intention at all times to become self employed and it was his plan to supplement his fledgling business with casual employment and the proceeds of this litigation.
344 In concluding his submissions Mr Mulcahy put:
The Respondent seeks leave to make further submissions on costs which as a preliminary matter the Respondent believes should be awarded on an indemnity basis having regard to the Respondent's submission that the Applicant planned to be in dispute with the Respondent and has failed to mitigate in respect of that dispute.
345 In reply Mr Hagan submitted that award classification is subject to satisfaction of the award definition, not "as deemed" by the employer, putting that Mr Alley met the award definition of Senior Nursery Tradesperson. Mr Hagan put that Mr Alley had been in receipt of over award benefits represented by his salary of $750 per week, fuel allowance and use of a company vehicle, which the employer could not unilaterally withdraw, or use the device of a reduction of hours to 38 per week to extinguish.
346 Mr Hagan submitted that the employer was advised of this by the Guidebook, which states (Ex 8, s 9 at p 3):
Contract of Employment … if you give employees more generous benefits it is likely that these will become part of the contract of employment. An employee can seek to enforce these conditions in court. In order to change the conditions you will need either the agreement of the employee in writing or a provision in the contract of employment which permits you to change the contract unilaterally.
347 Mr Hagan put that the employer had neither the written consent of Mr Alley nor provision in the contract to alter it unilaterally.
348 Mr Hagan submitted that the employer could not rely on the assertion that Mr Alley had requested a reduction of hours; he did not ask for award entitlements for himself and other employees which cannot be said to be a request for reduced classification, hours of work and remuneration.
349 Mr Hagan put that the contract of employment entitled Mr Alley to be paid $750 per week for 38 hours, putting that the only legitimate reduction would be by absorption of future State Wage Case increases by agreement.
350 Mr Hagan takes exception to the inferences that, on the basis of his relationship as father-in law to Mr Alley, Mr Alley's statement of 8 January 2005 is too well prepared and comprehensive to be the work of the applicant and his wife without legal advice, and so part of a conspiracy to engage the employer in litigation.
351 Mr Hagan affirms a professional response, putting that he was not consulted nor had he given advice prior to the demotion of Mr Alley by the employer on 7 January 2005.
352 Mr Hagan put that, especially there was no legal advice sought prior to the list of award issues raised with the employer. Mr Hagan put that he was not retained to advise Mr Alley prior to 8 January 2005, adding that there is no shred of evidence to infer otherwise.
353 Mr Hagan put that the plot timing advanced by the employer is spurious and without foundation, submitting that there is no way Mr Alley could anticipate the events of early January and that the suggestion that he, as Mr Alley's solicitor, would assist or permit the filing of a falsely dated statement is incomprehensive and offensive.
354 Mr Hagan put:
It is submitted in reply that it was the Respondent who was premeditated and totally convinced of its superiority and power over the Applicant. The Respondent's Manager Mr Creagh knew the Applicant's father-in-law was a solicitor, having attended the Applicant's wedding. Mr Baker was also an invitee. It was the Respondent who flaunted its legal advice when on 12 January 2005, Mr Creagh said (page 2 Applicant's Statement 23 January 2005): "There are changes to unfair dismissal laws coming in soon so just be careful. You can show that letter to anyone you want. It's a solicitor's letter so it is all above board."
… …
It is not the Applicant who has "set up" the Respondent and "engineered a dispute" as submitted by the Respondent in paragraph 11. It is the Respondent who has engineered its own downfall by refusing the many opportunities provided by the Applicant and staff to resolve and de-escalate dispute:
1. By not agreeing to pay the staff leave loading when first complained