Adrian Manescu v Baker Hughes Australia Pty Limited

[2017] FWC 2424

[2017] FWC 2424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Manescu
v
Baker Hughes Australia Pty Limited
(U2017/51)

DEPUTY PRESIDENT BULL PERTH, 1 JUNE 2017

Application for relief from unfair dismissal, consultation obligations under award, failure to consult in writing, redeployment, genuine redundancy.

[1] Mr Adrian Manescu (the applicant/Mr Manescu) has made an application under s.394 of the Fair Work Act 2010 (the Act) for an unfair dismissal remedy alleging that his dismissal by Baker Hughes Australia Pty Ltd (the respondent/Baker Hughes) was harsh, unjust or unreasonable. Mr Manescu had been employed as a Geoscientist specialising in petrophysics in Perth Western Australia.

[2] The respondent filed an objection to the unfair dismissal application on the ground that the dismissal of the applicant was a case of genuine redundancy, which was disputed by the applicant.

[3] The respondent states that it is a “top-tier oilfield service company” which provides solutions to oil and gas operators in order that they maximise their reservoir, manage operating expenses and boost overall return on investment. 1

[4] Mr Manescu represented himself and Mr Michael Tomasz; in-house Legal Counsel represented the respondent. Mr Tomasz was assisted at the bar table by Mr Duncan Fletcher, a solicitor from K & L Gates. 2

Respondent’s jurisdictional submissions

[5] The respondent submitted that the applicant’s employment came to an end by way of a genuine redundancy within the meaning of s.389 of the Act, as such the Commission did not have jurisdiction to entertain the application.

[6] Mr Manescu commenced employment with Western Atlas International in July 1997 as a Geoscientist specialising in petrophysics. Western Atlas was purchased by Baker Hughes in January 1998. Mr Manescu’s employment was transferred to Baker Hughes as of 1 January 1999 and he was employed under a common law employment contract.

[7] The respondent submitted that the applicant’s redundancy arose following the loss of a number of its customer contracts particularly in Australia, resulting in reduced revenue and activity within its drilling and wireline services 3, being the business that its geoscientists support. There were no services rigs in Australia or New Zealand.4

[8] Baker Hughes submitted that the loss of contracts, reduced revenue and reduced activity was a response to the worldwide downturn and instability in the oil and gas industry. The unfavourable economic climate placed significant pressure on Baker Hughes’ costs and operations.

[9] The respondent submitted that as a result of the downturn a decision was taken to concentrate the drilling and wireline services to a core group of employees located in Kuala Lumpur. The restructure resulted in the applicant’s role and two other roles becoming redundant at about the same time.

[10] While the respondent does not accept that it was covered by a modern award, it submitted that once a definite decision to restructure had been made it engaged in meaningful and genuine consultation with the applicant.

[11] The respondent submitted that on 15 December 2016, a consultation meeting with Mr Manescu occurred where he was informed that:

● A review of the drilling and wireline function had been undertaken, which had identified that due to the loss of clients and diminished work and revenue across the whole business, the support services provided to clients to support the drilling and wireline function including petrophysics, reservoir engineering and geology needed to be restructured and rationalised.

● The geoscience expertise would be concentrated in Kuala Lumpur Malaysia with three positions to be made redundant including that of the applicant.

● The applicant’s role would be spread across the remaining geoscientists based in Kuala Lumpur. 5

[12] During the consultation meeting Mr Manescu was provided with the opportunity to ask questions and provide any feedback which he did.

[13] The respondent stated that while Mr Manescu’s feedback was considered by the respondent, nothing was raised that justified the respondent altering its proposed restructure. 6

[14] It was determined that at the time of the redundancy that there were no other suitable positions available for Mr Manescu to be redeployed into having regard for his skill set and experience. 7

[15] On 16 December, a further meeting was held to confirm with Mr Manescu that his position had become redundant. Following this meeting the applicant was provided with a letter of termination advising of his redundancy and the payment of a redundancy payment in accordance with the National Employment Standards.

[16] The letter of termination relevantly stated:

“This letter serves to confirm the outcome of the meeting just held, during which you were informed that the role of GEOSCIENTIST SR II will no longer be required by the company, with immediate effect.

As advised to the business and discussed with you in recent days, the company has reviewed its employment structure and has no position currently available into which you can be redeployed.

Accordingly, it will be necessary to bring your employment to an end. We wish to thank you for your time and contribution to the Baker Hughes team.

… ” 8

[17] Mr Manescu’s redundancy was said to be one of approximately 700 made due to the economic downturn in the industry over the last 18 months with the possibility of further redundancies occurring. Currently the respondent has around 260 employees based in Australia which was the lowest in three years. 9

Evidence of Mr Ignatius Jayapragasm

[18] Mr Jayapragasm is the respondent’s Human Resource Business Partner for Australasia and he gave evidence and was cross examined by the applicant. Mr Jayapragasm stated that despite Baker Hughes having already made approximately 700 out of 1001 employees redundant, the redundancy process was still on foot. 10

[19] Mr Jayapragasm advised that the applicant was employed on a common law contract with a base salary of $140,957.04. 11

[20] Mr Jayapragasm stated that the redundancy process was occurring due to a loss of contracts and a general downturn in the oil and gas industry which was placing financial stress on the company. In late 2016, it was determined that its geoscience support would be rationalised with a reduction of three Australian roles being removed and made redundant. Any future geoscience work would be conducted from within the resources existing in Kuala Lumpur. 12

[21] Mr Jayapragasm stated that he advised the applicant prior to the 15 December meeting that he could have a support person attend. In attendance at the 15 December meeting was Mr Roger Marsh the Geoscience Manager, Mr Manescu who attended without a support person and himself. Mr Manescu was advised of the geoscience review and the reasons for the review and its conclusions, including Mr Manescu’s role being made redundant. 13

[22] Mr Jayapragasm’s evidence was that Mr Manescu was given an opportunity to ask questions and provide feedback during the meeting. While Mr Manescu raised a number of issues, they did not directly relate to his redundancy. 14

[23] Mr Jayapragasm stated that the business reviewed whether there were any suitable alternative positions for Mr Manescu to be redeployed without success. 15 According to the respondent, any work Mr Manescu was performing at the time was not on-going.

[24] On the following day, 16 December 2016, at a further meeting between the same parties it was confirmed to the applicant that his position was redundant. A letter confirming his redundancy and advising of all ensuing payments was then issued to the applicant.

[25] In his oral evidence, Mr Jayapragasm stated that since the applicant’s redundancy (a period in excess of four months) no work previously performed by the applicant has been required to be performed either in Australia or out of Kuala Lumpur.

Applicant’s submissions

[26] Mr Manescu relied on his own evidence 16 and submissions and did not call any witnesses to support his application.

[27] Mr Manescu stated that he was called to a meeting on 15 December 2016 and a further meeting the following day 16 December 2016. At these meetings he was advised that his position was redundant and that there were no other suitable positions that he could undertake within the respondent’s business. Mr Manescu stated that both meetings lasted less than 15 minutes. 17

[28] Mr Manescu questioned whether his redundancy was genuine on a number of grounds:

● His application for annual leave was refused twice prior to his redundancy on the basis that he was engaged on work projects that took priority;

● At the time of his redundancy he was working on 3 to 4 committed projects;

● None of his tasks/job duties were extinguished or transferred to Kuala Lumpur;

● Five senior geoscientists made redundant in Perth in late 2016, were re-employed on a contract basis by the respondent;

● Under the relevant award the respondent has not complied with the consultation requirements relating to redundancy.

[29] While Mr Manescu maintained that his job was still required, he was unable to dispute that it had not been performed by anyone since his departure. He further submitted that it would not have been unreasonable for the respondent to have allowed him to take a year or six months off work through a combination of accrued and unpaid leave, or any other job saving arrangement while the respondent was undergoing its cost cutting exercise.

[30] During the hearing Mr Manescu also acknowledged that no new employees had been engaged and any contactors recently appointed were only for short term tasks and none were asked to perform work that he would have otherwise performed.

Award Coverage

[31] The applicant submits that he was covered by the Professional Employees Award 2010 (the Award) and his position as a Geoscientist equates to either a Level 3 or Level 4 Professional referred to in Schedule B – Classification Structure and Definitions of the Award. 18

[32] The respondent submits that Mr Manescu’s role is not covered by any modern award due to the nature and seniority of his position and that such a role has not traditionally been covered by an award as per s.143(7) of the Act. The respondent did not elaborate any further on their argument that the applicant was not covered by an Award. 19

[33] The Professional Employees Award 2010 covers employers in the industries specified in clause 4.2 but it also has an occupational coverage as specified in clause 4.1. 20

[34] At 4.1 of the Award, coverage of the Award is stated as:

“This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.”

[35] Mr Manescu stated that he had obtained a degree in Geology and Geophysics with a Major in Petrophysics being a five year degree from the University of Bucharest, Romania. During his employment with Baker Hughes the applicant authored and co-authored a number of scientific papers which have been presented at various conferences.

[36] Having regard to Mr Manescu’s role and his remuneration level which is close to the salary threshold for non-award employees, I am not persuaded that the role is traditionally one that is award free. Mr Manescu’s seniority is not of a level indicative of an award free employee.

[37] The training courses undertaken by Mr Manescu and relied on by the respondent although not elaborated upon, do not demonstrate that the applicant is a non-award employee, particularly having regard to the explanation as to their content and status provided by the applicant in his Statement of Evidence. 21

[38] I am satisfied that the applicant performed professional scientific duties as described under the Award as a Level 4 Professional and satisfies the Award definition of either an Experienced or Professional Scientist.

[39] As such I find that he was covered by the Professional Employees Award 2010 in his role as a geoscientist.

Relevant statutory provisions

[40] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an Order under Division 4 granting a remedy for unfair dismissal.

[41] Section 385 of the Act provides as follows:

“s.385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

(My emphasis)

[42] Section 396 of the Act requires that before considering the merits of an application for an unfair dismissal remedy, the Commission must decide a number of threshold issues:

“s.396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

(My emphasis)

[43] As discussed above, the respondent submits that the applicant’s termination was the result of a genuine redundancy.

[44] One effect of s.396 of the Act is that if a dismissal is the result of a genuine redundancy, the Commission need not determine whether the dismissal was harsh, unjust or unreasonable. 22

Genuine redundancy

[45] Section 389 of the Act sets out the meaning of genuine redundancy which is not restricted to whether an employee’s job is no longer required, as per s.389(1)(b) and s.389(2) below:

“389(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

389(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer”

(My emphasis)

Whether position was redundant

[46] I am satisfied that the respondent has demonstrated as per s.389(1)(a) that the applicant’s job was redundant in the sense that it was no longer required to be performed by anyone, or if so it would be undertaken by the existing resources within the respondent’s business operating out of Kuala Lumpur. Mr Manescu was unable to demonstrate otherwise.

Consultation

[47] As discussed above, the respondent must also have complied with any obligations under an applicable award to consult about the redundancy.

[48] Under clause 9 - Consultation of the Award, an employer is obliged to discuss with employees where a definite decision has been made to introduce major changes in production, program, organisation, structure or technology likely to have significant effects on employees. The relevant terms of the clause are extracted below:

“9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[49] The employer states that it has ‘substantially’ complied with the Award consultation provisions other than the requirement to provide in writing all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes and any other matters likely to affect the applicant. 23

[50] In Victoria v Commonwealth 24, Stephen J reasoned that in some circumstances complete non-compliance with a statutory requirement may be disregarded if such non-compliance does not serve the Act’s objects and is unimportant, and possibly if there were far-reaching and undesirable consequences of treating non-observance as invalidatory:

“A directory construction will not assist in securing validity unless, despite non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of the general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory.

Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented … .”

[51] The requirement to provide the employee with information about the relevant changes and their effects is no mere procedural formality but is part of the substance of the consultation process. Failure to do so is not “a minor technical breach” as submitted by the respondent. 25 When told about an impending redundancy an employee will often be at a disadvantage in comprehending all that is said at a meeting, being primarily concerned with the advice of the impending loss of their job. The requirement to provide all relevant information in writing allows an employee to consider all that has been put by the employer, without misunderstanding, and in a more contemplative manner.

[52] As the employer has not complied with the Award consultative provisions by placing this essential information relating to the redundancy in writing and hence has not complied with s.389(1)(b) of the Act, the defence to the unfair dismissal claim of being a genuine redundancy under s.389 of the Act cannot succeed.

Redeployment

[53] Section 389(2) also requires the employer to demonstrate that it would not have been reasonable for the applicant to have been redeployed within the employer’s enterprise or that of an associated entity of the employer if the defence of genuine redundancy to be made out.

[54] While not necessary to consider in view of the finding in relation to s.389(1)(b) already made, on the evidence available to the Commission it was demonstrated that it would not have been reasonable to redeploy the applicant in the circumstances which existed at the time. The reason for this is that it was made clear by Baker Hughes there were no other vacancies either immediately available or available in the near future suitable for Mr Manescu. The employer was still in the process of restructuring its operations with further redundancies under consideration. The respondent’s evidence was that it had undertaken an unsuccessful review of its operations in attempting to source alternative roles for the applicant.

[55] Having found that the consultation provisions of the Award were not fully complied with, the Commission is required to deal with the claim as per s.387 of the Act which outlines the criteria the Commission is to have regard to in determining whether the dismissal was harsh, unjust or unreasonable, those being:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[56] In this matter I am satisfied the respondent no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

[57] In UES (Int’L) Pty Ltd v Harvey  26the Full Bench examined the application of s.387(a) and the majority held that a termination through redundancy was not relevant to s.387(a):

(26) We have concluded, however, that s.387(a) of the FW Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct does not go to the process for selecting the person for redundancy.

[58] As such, this is not a factor of relevance with respect to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(b) Whether the person was notified of that reason

[59] As stated above, the applicant’s termination of employment did not relate to his capacity or conduct. The applicant was advised at the consultation meeting on 15 December 2016 that a review of the geoscience function had been undertaken which had concluded that his position and two other positions would be made redundant.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct

[60] This criteria deals with procedural fairness in respect of a reason for dismissal related to an employee’s capacity or conduct. The applicant’s employment was not terminated for reasons related to his capacity or conduct.

(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal

[61] The respondent advised the applicant prior to the 15 December consultation meeting that he may have a support person present to assist at the meeting. Although not availed of, the opportunity to have a support person was not disputed by the applicant.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[62] The dismissal did not relate to unsatisfactory performance by the Applicant.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[63] The respondent in its own words is a top tier oilfield service company with dedicated human resource management specialists or expertise. On this basis it would be expected that the applicant’s redundancy process would have been undertaken in a manner reflecting this specialist expertise.

[64] Mr Jayapragasm’s evidence was that he was the Human Resource Business Partner for Australasia with responsibility for policy development and participation in cross–divisional HR teams and responsible for the provision of training and supervision to HR generalists.

[65] Mr Jayapragasm did not give the impression that he was fully conversant with Australian employment law. Despite the large number of redundancies already undertaken in Australia, it appeared no consideration had been given as to whether the applicant was covered by a modern award, hence the failure to follow the Award consultation requirements.

[66] Mr Jayapragasm’s explanation as to why the applicant was requested to sign a Release Agreement (which he refused) to release the respondent from all claims arising out of his employment and termination of employment in return for his statutory redundancy entitlements under the Act was difficult to comprehend. 27

[67] Considering the applicant’s purported senior position 28 and his 17 years of direct employment with the respondent, providing the applicant at 11.00am with notice of a meeting to be held the same day at 3.00pm, without any notice of its purpose, and the holding of a 15 minute29 meeting to explain the review and its effects, and to discuss measures to avert or mitigate its adverse effects on Mr Manescu appeared somewhat perfunctory, as did the meeting the following day of the same duration.

[68] The evidence provided by Mr Jayapragasm was scant on the actual time the decision concerning the restructure of the geoscience function was made, 30 by whom and who undertook the potential redeployment exercise in respect of the applicant.

[69] However for reasons provided below these observations don’t impact on the final outcome.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[70] There was no lack of dedicated human resource management specialists or expertise likely to impact on the procedures followed in effecting the dismissal.

(h) Any other relevant matters

[71] I have considered all of the evidence and find that the position occupied by the applicant was redundant. The failure to provide the applicant with written advice regarding his redundancy as required by the Award has not been demonstrated in the applicant’s circumstances to have caused unfairness to the extent that the redundancy could be found to be harsh, unjust or unreasonable.

[72] The applicant conceded during the hearing that had the respondent provided the written advice as required under the Award, it would have made no difference to the outcome.

[73] As Watson VP stated in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA at 39:

“In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr. Maswan would have been dismissed in any event, even if timely consultation had occurred.” 31

[74] Unfortunately Mr Manescu became one of more than 700 employees of the respondent to be made redundant due to the economic circumstances facing the industry that the respondent was engaged in. Mr Manescu was one of three employees made redundant as a result of the review of the geoscience function and its downsizing to reflect the current reduced activity levels.

[75] Balancing all of the relevant considerations under s.387 of the Act, they do not support a conclusion that the dismissal was harsh, unjust or unreasonable.

[76] Accordingly the applicant’s claim for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:
Mr. A Manescu on his own behalf.
Mr. M Tomasz in-house counsel and Mr. D Fletcher Solicitor K & L Gates on behalf of the Respondent.
Hearing details:
2017.
Perth:
8 May

 1   Respondent’s Outline of Submissions 7 April 2017

 2   On this basis the Commission wasn’t required to consider s.596(2) of the Act

 3   In the oil and gas industry, the term wireline usually refers to a cabling technology used by operators of oil and gas wells to lower equipment or measurement devices

 4   Respondent’s F3 at 12(b) of 3.1

 5   Respondent’s Outline of Submissions at [27], (The Applicant contests the Respondent’s version of what occurred at this meeting, per email 18 January 2017)

 6   Respondent’s Outline of Submissions at [29]

 7   Respondent’s Outline of Submissions at [30]

 8   Witness Statement of Ignatius Jayapragasam, Exhibit R2, Annexure IJ-2

 9   Respondent’s Outline of Submissions at [6]-[7]

 10   Exhibit R2 at [7]

 11   Exhibit R2 at [16]

 12   Mr Manescu disputes that he was told the Kuala Lumpur operations would undertake any future geoscience work. Witness Statement of Adrian Manescu, Exhibit A1 at 26(b)

 13   Exhibit R2 at [22]-[25]

 14   Exhibit R2 at [26]

 15   Exhibit R2 at [27]

 16   Exhibit A1

 17   The respondent did not dispute the applicant’s evidence regarding the duration of the meetings.

 18   Applicants Outline of Argument, 9 March 2017, Exhibit A3 at [10]

 19   Respondent Outline of Submissions at [39]

 20   Sanjay Halasagi vGeorge Weston Foods Limited [2010] FWA 6503 at [6]

 21   Applicants Statement of Evidence, 9 March 2017, Exhibit A2

 22   UES (Int’L) Pty Ltd v Harvey[2012] FWAFB 5241

 23   Respondent’s Outline of Submissions, at [43]

 24 (1975) 134 CLR 81 at 179. See also High Court in Australian Broadcasting Corp v Redmore Pty Ltd (1989) 84 ALR 199.

 25   Respondents Outline of Submissions 7 April at [49]

 26   [2012] FWAFB 5241

 27   The respondent’s advocate provided a different explanation.

 28   Exhibit R1 at [15]

 29   The respondent suggested the meeting was closer to 20 minutes

 30   Mr Manescu submitted the decision had been made earlier than stated by Baker Hughes see Applicant’s Outline of Argument of 21 April at [25] and Applicant’s Statement of Evidence 21 April Exhibit A1 at [24]

 31   [2011] FWA 4239

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