Brambleby v Australian Postal Corporation [2014] FWCFB 9000

Fair Work Commission (Full Bench)|2014-12-16|Before: Ross J

(#P45_1620) Transcript of the proceedings at first instance, 2 May 2011 at PN33-PN61, Appeal Book p.18.

(#P46_1853) [2011] FWA 7126

(#P49_2060) Ibid at [57]

(#P55_4351) [2013] FWCFB 6191 at [120]

(#P78_9064) [2013] FWC 9293

(#P79_9645) Ibid at [22]

(#P82_10360) (2006) 156 IR 393

(#P93_12722) This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

(#P106_14516) O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Hogan v Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43]- [45] per Buchanan J (with whom Marshall and Cowdroy JJ agreed.

(#P143_16814) [2011] FCAFC 54

(#P148_17310) Ibid at [34] and [44]-[45]

(#P149_17582) GlaxoSmithKline Australia Pty Ltd v Makin (Makin) [2010] FWAFB 5343 at [28], cited with approval in C & A Mining Services at [42]-[43]

(#P154_18495) Ibid at [27]

(#P168_21022) Ibid at [19] and [20]

(#P239_33018) See Attachment MDI to the further statement of Mr Doyle dated 10 October 2013

(#P262_37430) [2014] FWCFB 7198

(#P265_37918) Section 381(1)(c) Fair Work Act 2009 (Cth)

(#P266_38145) Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008] AIRCFB64; Colson v Barwon Health [2014] FWCFB 1949

(#P267_38656) Regional Express Holdings Limited trading as REX Airlines v Richards [2010] FWAFB 8753 at [23]- [24]; Colson v Barwon Health [2014] FWCFB 1949 at [30]- [31]

(#P295_42877) Transcript 26 November 2014 at PN271

(#P300_43431) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.

(#P319_46677) Transcript 26 November 2014 at paragraph 137 and 292

(#P338_49996) The respondent refers to the evidence at AB275 paragraph 3126; AB354 at paragraphs 4208-4213; AB355 at paragraphs 4214-4239; AB356 at paragraph 4227 and following; AB393 at paragraphs 4699-4700; AB412 at paragraph 4933 and following; AB412 at paragraph 4934 and AB412 at paragraphs 4936-4937

(#P339_50317) Final Submissions of Applicants before Lewin C undated [Tab 4 of the Appellant's Appeal Book] at paragraphs 30, 34, 35, 37, 78, 80, 85, 106, and 153; Respondent's Outline of Submissions dated 15 April 2011 [AB references to the Respondent's Appeal Book at AB 511-528]: paragraph 28 (AB 517), paragraph 29 (AB 518), paragraph 30 (AB 519); Respondent's Final Submissions dated 5 August 2011 [AB references to the Respondent's Appeal Book at AB529 -596]: paragraph 201 (AB 566), paragraph 208 (AB 567) paragraph 221 (AB 570) and paragraph 230 (AB572); Final oral submissions before Lewin C on 16 August 2011 [AB references to the Respondent's Appeal Book at AB 437- 510]: AB 442 (PN5258-5259), AB 443(PN5265), AB 449 (PN5308), AB 450 (PN5322), AB 451 (PN5326), AB 459 (PN5419), AB 462 (PN5450), AB 486 (PN57420, AB 498(PN5889), AB 502 (PN5928-5929), AB 506 (PN5953), AB 507 (PN5965), and AB 509 (PN5973).

(#P342_51971) A point conceded by counsel for the appellant, Transcript 26 November 2014 at PN284.

(#P372_55827) See AB1133

(#P377_56171) Statement of Michael Brambleby, undated, tendered into evidence on 22 October 2013.

(#P388_57266) In that regard, reference is made to AB688-689 [26]-[28], being the supplementary witness statement of Tracey Smith dated 27 May 2011, AB622-624, being the attachment marked "TS2" detailing the distribution between 2001 and 2010 of the Respondent's policies which is headed "Harassment Brochures - Titles and Release Dates November 2001 to November 2010" and AB772, AB813 and AB842, being the training transcripts of the Appellant over the course of their employment. Other evidence in the Appeal Book related to the distribution of the Respondent's policies is to be found at AB600 [12] of the statement of Tracey Smith dated 15 April 2011.

(#P391_58169) Ms Smith's evidence is contained at AB599-689. There are two witness statements in the Appeal Book, with the first statement largely consisting of a number of attachments, being the respondent's policies relevant to the conduct of the appellant, and they are to be found at AB606-673. Also see the respondent's written submissions of 1 December 2014 at paragraph 13.

(#P404_60776) See paragraphs 5 and 6 of the applicant's written submissions of 10 December 2014

(#P409_61736) [2014] FWCFB 7198 at [27]

(#P412_62062) Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8]

(#P415_62470) Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191

(#P431_63902) Remedy Hearing on 22 October 2013 PN2238-PN2239 and PN2249

(#P432_64191) Remedy Hearing on 22 October 2013 PN2491

(#P441_65644) [2011] FWA 7126 at [31]

(#P444_66416) See Attachment MDI to the further statement of Mr Doyle dated 13 October 2013

(#P447_66655) These matters were identified in the respondent's written submission on remedy of 1 December 2014 and not challenged in the appellant's submission of 10 December 2014.

(#P450_66988) Transcript at first instance at PN124 also see the witness statement of Kerrielee Barnes, paragraph 40 and attachment KB9 at Appeal Book 760, 764 and 813

(#P453_67359) Transcript at first instance at PN1249-PN1250

(#P456_67641) Ibid at PN1197

(#P457_67749) Appeal Book 626

(#P460_68184) Ibid at paragraph 1372

(#P463_68345) Ibid at paragraph 1157-1158

(#P464_68448) Mr Brambleby's witness statement at paragraph 3

(#P466_68682) Transcript at first instance at PN1159-PN1163

(#P471_69419) Mr Doyle's further statement at paragraph [16]

(#P474_69612) Ibid at paragraph [17]

(#P477_69683) Ibid at paragraphs [77]-[82]

(#P480_70070) Ibid at paragraphs [19]-[20]

(#P483_70545) Ibid at paragraphs [23]-[24]

(#P486_70853) Nguyen at [17] - [18]

(#P509_74762) Mr Doyle's evidence, transcript 22 October 2013 at PN2536

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