Amara Somasundaram v Department of Education and Training, North-Eastern Victoria Region

[2015] FWC 6857

[2015] FWC 6857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amara Somasundaram
v
Department of Education & Training, North-Eastern Victoria Region
(U2015/2980)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 24 July 2015, Commissioner Ryan 1 found that Ms Amara Somasundaram’s employment had been terminated unfairly by the Department of Education and Training.

[2] As a result of matters that occurred after the issuing of that decision, Commissioner Wilson, Acting Panel Head Termination of Employment, reassigned the matter to me to determine the appropriate remedy. It was agreed by the parties that “the Commission’s consideration of remedy is limited to either reinstatement to the Sherbrooke Community School, or compensation, but not for reinstatement to some other place.” 2

[3] The parties agreed that there was no need for further evidence and that I could rely upon the evidence currently before the Commission. The parties filed submissions on remedy.

[4] Ms Somasundaram seeks reinstatement to Sherbrooke Community School.

[5] Ms Somasundaram commenced employment as a teacher with the Department in 2006. She was transferred to the School in January 2008 and obtained a permanent position at the School at the beginning of 2009.

[6] Ms Somasundaram was absent from work on workers compensation from 14 June 2011 and returned to work in November 2013. Her employment was terminated on 23 January 2015.

[7] In his decision, Commissioner Ryan dismissed as having no foundation the reasons relied upon by the Department to terminate her employment.

[8]
The questions to be resolved now are:

1. Has there been such a breakdown in the relationship of trust and confidence between Ms Somasundaram on the one hand and Ms Sue Holmes and the Department on the other such that reinstatement is inappropriate?

2. Does the impact on Ms Somasundaram’s health mean that reinstatement is inappropriate?

3. Does the combination of these two matters make reinstatement inappropriate?

Trust and confidence

[9] Ms Somasundaram submitted that she complied with her obligations under the code of conduct. She submitted that the Department could not establish that she failed to follow a reasonable and lawful instruction given by Ms Holmes, the Acting Principal at the School. Further, she submitted there was insufficient evidence to establish that the relationship of trust and confidence between the parties had irreparably broken down. She submitted that Ms Holmes had suggested that, at the time, she had not been confident in her new role as Principal and was very reliant on the advice of others. She submitted that now that Ms Holmes was aware of the issues raised in the hearings, the relationship can be viable and productive for the benefit of students. She submitted that the evidence before the Commission demonstrated her commitment to take reasonable steps to reduce risks to students. She needed to return to the school to regain the esteem with which she was held by the school community and if she is not returned to the school it would taint her future.

[10] The Department submitted that reinstatement would in all the circumstances be inappropriate. It submitted that the relationship of trust and confidence between the parties had irreparably broken down such that it would be impractical and impossible to restore the employment relationship.

[11] To support these submissions the Department relied only upon Ms Somasundaram’s own evidence and evidence given by Ms Holmes in cross examination.

(1) It was said that Ms Somasundaram had issues at the school. 3

[12] It is not contested that Ms Somasundaram had issues prior to 2011 and upon her return to the School. Evidence was given by Ms Somasundaram about these matters. The pre 2011 matters caused her to become ill. Upon her return, the evidence before Commission Ryan was that, the Department, via the Acting Principal, was advised by the medical practitioner appointed by the Department to assess Ms Somasundaram’s fitness for work, that “mediation occur between the Department, the Sherbrooke Community School senior management team and the worker to minimise risk of recurrence of her health complaint currently in remission, and minimisation of further tensions amongst the school teaching community.” 4 This mediation did not occur and further issues arose. That Ms Somasundaram had issues at the School is not to suggest that those issues were all of her making. There is nothing in the evidence before the Commission that could lead to a finding that the matters raised by Ms Somasundaram lacked legitimacy.

[13] To support its contention that trust and confidence had broken down, the Department relied on the following:

(2) It was part of Ms Somasundaram’s evidence that if reinstated she could only last a week at the School by keeping to herself 5 and she believed changes were necessary at the School in order for her to go back to the job for longer than a week.6 She wanted to take six months personal leave to enable those changes to be made.7

[14] In her application to the Commission, Ms Somasundaram sought as a remedy “six months paid personal leave to (sic) after a short period of re-establishing herself at (sic) employment.” She was cross-examined about this and stated “it would be the best thing, so that everything settles down and then I come back. Going in there and then – there needs to be changes I know that, and six months is the timeline against both parties to work on what needs to be done and then I return and we continue.” 8 After being questioned about what changes needed to be made at the School for her to move forward with her relationship with the Department, Ms Somasundaram said “at the time when I was doing the form-the Fair Work Commission form-I was quite upset because there was not a fair hearing-not hearing, their investigation. There was no investigations in many cases, but the last one, the disciplinary investigation, had quite a lot of flaws as far as I consider and I thought these are remedies to move me forward. Now that the hearing has occurred, I am a little more satisfied that there will be-there are people who have heard me and have to take note of what has gone on at the school, specifically in my case.”

[15] This evidence was given at the commencement of the hearing prior to the Department withdrawing all its evidence in relation to the alleged misconduct which led to Ms Somasundaram’s dismissal. I am unable to conclude on the basis of that evidence that Ms Somasundaram would now require a period of six months personal leave before she was able to return to the School. Further, given the findings of Commissioner Ryan in this matter, I would expect that the Department would ensure, having heard the evidence of its own witness, that changes would be put in place to ensure that allegations about bullying are properly responded to and that recommendations made to facilitate the return to work of employees after a period of workers compensation leave are implemented.

(3) That the Acting Principal at the School, Ms Holmes, was part of the group of people bullying Ms Somasundaram prior to her going on WorkCover leave. 9 Further, Ms Somasundaram’s trust in Ms Holmes went away in 2011.10

[16] Ms Holmes gave evidence in cross examination that the School was a very difficult workplace prior to Ms Somasundaram going on workers compensation leave. Ms Holmes in her evidence did not suggest that Ms Somasundaram was in any way responsible for the difficult workplace. Much of the blame was attributed to the then Principal. Ms Holmes herself had serious concerns about the then Principal’s conduct. Ms Holmes gave evidence that she had little knowledge of Ms Somasundaram’s complaints prior to her return to work in 2013. It was her evidence the then Principal did not inform her of many matters. Ms Holmes accepted that when she was Acting Assistant Principal she took no steps to try and resolve Ms Somasundaram’s issues and she did not raise them with the then Principal. 11 She accepted that she did not defend Ms Somasundaram to the Principal because she could not go against her Principal because she would end up in the same position.12

[17] While I make no findings that Ms Holmes bullied Ms Somasundaram prior to her going on workers compensation leave, it is not surprising that Ms Somasundaram concluded that Ms Holmes was part of the problem because when Ms Holmes was in a leadership position she took no steps to assist in resolving her complaints. It is therefore also not surprising that Ms Somasundaram lost trust in Ms Holmes.

(4) Ms Somasundaram and another staff member covertly audio-recorded meetings to “protect themselves” because they did not trust people at the School to record meetings accurately and because they felt they were being attacked. 13

[18] I accept that the covert recording of meetings discloses a lack of trust. However it is not suggested that Ms Somasundaram did anything more than record meetings to which she was a party. It is further not suggested that she did anything to entrap people by this process. The evidence establishes that Ms Somasundaram made legitimate complaints prior to going on workers compensation leave in 2011 which were not dealt with. Ms Somasundaram’s lack of trust arose in part from the failure of the School and the Department to respond to her legitimate complaints. When she returned to the School, Ms Holmes, despite the medical advice, expected Ms Somasundaram to put those events behind her and move on. While I accept that from Ms Holmes’ point of view these events had occurred a long time ago under a different Principal, it was unrealistic of her to expect Ms Somasundaram to simply move on. In all the circumstances, Ms Somasundaram’s lack of trust in the processes put in place to deal with her complaints was understandable.

(5) Ms Somasundaram is concerned about matters she believed Ms Holmes has placed on her personal file. 14

[19] All Ms Somasundaram sought was to review her personnel file which is nothing more than her right has an employee.

(6) Ms Somasundaram does not trust that there was a fair system of appointing people to internal positions with the School. 15

[20] I do not accept this is a correct characterisation of Ms Somasundaram’s evidence. It is clear that Ms Holmes did not follow the correct procedure when appointing people to internal positions with the School. It is therefore not surprising that Ms Somasundaram would not take at face value a statement that the correct procedures had been followed.

[21] The Department relied upon propositions put to Ms Holmes as part of the cross examination. These propositions were put when the Department was relying on Ms Holmes’ evidence to support the dismissal of Ms Somasundaram. The conduct relied upon by the Department to dismiss Ms Somasundaram arose from a complaint made by Ms Holmes. It is therefore not surprising that the cross examination of Ms Holmes was vigorous. However I do not accept the submission that each example of the cross examination relied upon by the Department was put on the instructions of Ms Somasundaram and further I do not accept that merely putting to Ms Holmes certain allegations is indicative of Ms Somasundaram’s beliefs about Ms Holmes. The Department did not ask for the opportunity to put that proposition to Ms Somasundaram at a hearing on remedy.

[22] I accept that Ms Somasundaram had issues with Ms Holmes. Ms Holmes had made complaints to the Department that Ms Somasundaram “engaged in unprofessional and inappropriate behaviour in addressing communications to members of the school community and that you continued to do so despite directions from the principal.” 16 The matters complained of were the subject of findings by Commissioner Ryan. Ms Somasundaram felt that she was being victimised by Ms Holmes. Given Commissioner Ryan’s findings this feeling was unsurprising.

[23] Ms Holmes gave evidence that she had lost trust and confidence in Ms Somasundaram. She gave evidence that given the covert recording and her failure to follow directions meant that she would not be in a position to manage Ms Somasundaram because she does not respect her authority. 17 I have already dealt with the issue of the covert recording above. Ms Somasundaram did not trust that minutes of meetings were being accurately recorded. It was not suggested that Ms Holmes doctored the minutes of any meetings. It is not suggested that Ms Somasundaram recorded the meetings for any purpose other than to ensure there was an accurate record of the meetings.

[24] Ms Holmes did not give examples of what direction Ms Somasundaram refused to follow. Ms Somasundaram denied that she had refused to follow a direction not to make statements to the staff. She denied she was given such a direction. 18

[25] However, Ms Somasundaram accepted she had been given a direction to not send all staff emails. 19 Despite this she again sent an all staff email on 18 June 2015. As a result of that email Ms Holmes made her complaint to the Department about Ms Somasundaram. While not condoning Ms Somasundaram’s conduct, it is worth noting that Ms Somasundaram was raising with other staff her concerns that the proper process had not been followed in relation to appointments. Those concerns of course were valid and Ms Holmes subsequently accepted that she had been mistaken about the process for appointments. I agree with Commissioner Ryan that Ms Somasundaram could have communicated with staff and Ms Holmes differently.

[26] Ms Holmes gave evidence that Ms Somasundaram had alienated colleagues and there were issues with her relationships with a number of students and parents that would make it difficult for her to return to work. Ms Holmes provided no evidentiary basis for this conclusion. Ms Holmes gave evidence of one teacher who was concerned that Ms Somasundaram may have, by one of her emails, suggested that he had not been appointed on merit. However I am unable to conclude on that basis that Ms Somasundaram had alienated colleagues. Ms Somasundaram gave evidence that Ms Holmes had raised some complaints from parents but no details were provided and it is not possible to conclude on the evidence that there were issues with Ms Somasundaram’s relationship with a number of students and parents. It was not put in cross examination to Ms Somasundaram that she had alienated colleagues and that her relationships with students and parents would make it difficult for her to return.

[27] The Department also relied on the conduct of Ms Somasundaram, which led Ms Holmes to make her complaint, to support its submission that a proper and effective working relationship could not be established between Ms Somasundaram and Ms Holmes and other members of the leadership team at the School. I accept the evidence that Ms Somasundaram:

• Read out a prepared statement on 19 November 2013. Ms Holmes gave evidence that she considered this to be unprofessional. In his decision Commissioner Ryan addressed this complaint 20. I accept his findings. Given those findings I cannot accept that Ms Somasundaram was unprofessional. While Ms Holmes may have considered the forum to be inappropriate, Ms Somasundaram’s conduct was a genuine attempt to explain her absence. I accept that Ms Somasundaram should have discussed this with Ms Holmes prior to making the statement.



• On 23 February 2014 and 28 February 2014, Ms Somasundaram sent an email to all staff and questioned the decision about how teachers should communicate with parents and students and the process of appointment to positions of responsibility. In that she referred to her issues and her medical condition. Commissioner Ryan found that it was reasonable for Ms Somasundaram to assume that the use of the school distribution list was limited to staff. 21 Again I accept the finding that there may have been better ways for Ms Somasundaram to communicate with staff. However the first issue may never have arisen if Ms Somasundaram had been properly re-inducted into the School and advised of the changes in procedures that had been adopted in her absence and the second issue would not have arisen if Ms Holmes had not mistakenly followed incorrect procedures.



• Ms Somasundaram was told that the emails were considered by staff to be harassing. I accept that this information was given to Ms Somasundaram. It was also said that the staff in fact found the emails harassing. I am unable to conclude on the evidence that staff found the emails to be harassing. While Ms Holmes gave this evidence no member of staff was called to give evidence and Ms Holmes evidence did not go beyond generalities.



• Despite the instruction not to send emails, Ms Somasundaram continued to send emails to the staff on 18 June 2014 and 22 July 2014. This is not disputed. While I accept that Ms Somasundaram should have followed the direction and raised her concerns with other staff in another way, the context in which the emails were sent cannot be overlooked. Ms Somasundaram had raised with the Department on 2 March 2014 her concerns that leading teachers were chosen without due process. On 7 March 2014, in a meeting Ms Holmes provided Ms Somasundaram with an explanation in relation to one of the positions, namely a teacher was doing the work in an “apprenticeship capacity” because he wanted the experience and was doing it without pay. The Department did not respond to Ms Somasundaram’s email. Despite knowing this was a concern, Ms Holmes subsequently advised staff of an appointment to a position without following the proper procedure. She later sent an email to all staff thanking Ms Somasundaram for bringing her mistake to her attention. In that context she was entitled to raise those concerns with other staff members even if she should have used a different method.



• The second email was sent after Ms Somasundaram was advised that the Department was conducting an inquiry into her conduct which it alleged was unprofessional and inappropriate. It is surprising that Ms Somasundaram then sent a further email. However, it is clear by this time that Ms Somasundaram considered she had nothing to lose and that it was not appropriate for her to remain silent when faced with what she saw as “bullying, harassment and discrimination.”



• It was said she accused the School of nepotism/cronyism and by inference impugned staff members who had received leadership positions. It was not put to Ms Somasundaram in cross examination that she impugned staff members and it is not part of Ms Holmes’ evidence. Ms Somasundaram did raise issues of nepotism/cronyism. Accusations of this kind are inevitable if open and transparent and merits based selection procedures are not followed.



• Publically disclosed confidential correspondence between the School and Ms Somasundaram and publically ventilated her grievances about the School. The evidentiary basis of this submission is unclear as the email sent by Ms Somasundaram was tendered but the attachments to the email were not. 22 If Ms Somasundaram disclosed communication she received from the Department about the inquiry into her conduct, which was marked confidential, I do not consider that it was improper for her to disclose that correspondence to other staff. Further, given that Ms Somasundaram ventilated her grievances about the School when facing a significant threat to her ongoing employment, I do not consider in all the circumstances that it was unreasonable for her to raise these concerns with her colleagues, albeit she should have chosen another method of communication. Commissioner Ryan considered the issue of whether Ms Somasundaram knowingly sent these emails to the Chair of the School Council and I accept his finding that this was in advertent.

[28] I accept that this has been a very difficult situation for Ms Somasundaram, Ms Holmes and the school community. They were all let down by the Department. It is extraordinary that, despite the Department, when it was contacted by Ms Holmes and Ms Somasundaram about issues in 2014, did not take a more active role in attempting to resolve the issues.

[29] The Department was clearly on notice that there were serious issues at the School under the leadership of the previous Principal. It had a high proportion of staff off on workers compensation leave. It arranged to have an “independent health and wellbeing pulse check” conducted in 2011, and despite a number of recommendations, the evidence of Ms Holmes was there was little, apart from an attempt to resolve some issues between her and the then Principal, done to respond to the issues identified.

[30] The Department was aware of Ms Somasundaram’s complaints going back to 2010. The evidence shows that, despite Ms Holmes having been in the role of Acting Principal for only a short period of time, little or no guidance was provided to her about how she could facilitate Ms Somasundaram’s return to work. Ms Holmes was on notice that there needed to be steps taken to facilitate Ms Somasundaram’s successful return to work but she did not take up the recommendations. In addition, she did not provide an induction for Ms Somasundaram which would have advised Ms Somasundaram of any changes in policies and procedures.

[31] While I accept Ms Holmes’ unchallenged evidence that she had lost trust and confidence in Ms Somasundaram, Ms Holmes gave this evidence at a time when she had formed the view that Ms Somasundaram’s had “engaged in unprofessional and inappropriate behaviour in addressing communications to members of the school community and that [she] continued to do so despite direction from the principal.” At the time she gave this evidence the Department had agreed with her view and dismissed Ms Somasundaram. Given Commissioner Ryan’s findings, this conclusion by Ms Holmes and the Department cannot be sustained.

[32] I accept that Ms Holmes’ evidence is still relied upon by the Department despite the findings of Commissioner Ryan. However I would expect a professional like Ms Holmes would reflect on what occurred to Ms Somasundaram during her time at the School as well as on the professional advice given to her about steps she could take to reintegrate Ms Somasundaram into the School.

[33] At the times these events occurred Ms Holmes had not been in a leadership position for very long. With proper support from the Department I have no doubt that she is capable of drawing a line in the sand and working with Ms Somasundaram in the interests of the School and its students. Equally, I would expect Ms Somasundaram to accept that the past cannot be undone and that she too needs to reflect on what has occurred and how in part she contributed to an escalation of some matters by continuing to link what was occurring after she returned from workers compensation leave to what occurred prior to that leave.

[34] She also needs to reflect on the strategies she adopts for responding to matters she disagrees with. This is not to say Ms Somasundaram is not entitled to disagree with decisions made at the School and participate in debate in an appropriate manner and agitate for change in an appropriate manner. However, she needs to accept that there is a decision making process and she will have to accept and implement decisions she does not agree with. If she does not, she will be subject to appropriate disciplinary action.

[35] While I accept at the time of the hearing Ms Holmes expressed a lack of trust and confidence in Ms Somasundaram and vice versa, I am not satisfied that this is sufficient to find in all the circumstances of this case that reinstatement is inappropriate. Trust and confidence is often damaged by the process leading to the dismissal and the unfair dismissal process itself. That is not to say that trust and confidence cannot be restored. This is particularly so in this case where the Department abandoned its substantial evidentiary case and where both parties have had an opportunity to hear clearly the other parties’ evidence. On the evidence before Commissioner Ryan, the Department failed Ms Somasundaram and Ms Holmes. I am confident with a professional approach by all parties that they can move forward in the interests of the students and the rest of the school community.

The impact on Somasundaram’s health

[36] Ms Somasundaram in her submissions did not agree that returning to work at the School would have a negative impact on her health. She submitted that those issues that were her stressors had come out through the hearing.

[37] The Department relied upon the impact on Ms Somasundaram’s health of a return to work. Mr Brian Hall, called by Ms Somasundaram, gave evidence that Ms Somasundaram suffered health issues as a result of her present employment environment. It was his evidence that if the identifiable stressor is removed the condition would resolve. 23 It was his evidence that she had a lack of trust in the leadership and regional administration and “this will continue into future settings, creating anxiety and affecting confidence and functioning.”24

[38] Mr Hall said that if “she goes straight back into a situation where she sees that things are not as they should be. Where she sees that things are not addressed, well then, yes I would question whether that would be a wise thing for her to do. It would just be compounding what is already happening. For her to get better, the thing needs to resolve and from my discussions with her, she will be feel better when she sees the thing that’s been happening, properly addressed.” 25

[39] In response to a question in re-examination as to whether the proposed mediation would have assisted he said: “if the mediation had actually fixed the situation as she sees it, well then I think she could have gone forward with confidence and back into her professional way of operating. What she needs, is she needs a situation to be addressed in the terms that she understands to be just and appropriate and that is her stressor. The fact that it hasn’t been addressed, that it’s happening and that the things in place to give a safe workplace et cetera, have failed, basically. If the mediation had achieved those things, while then she could have gone forward.” 26

[40] When asked by the Commissioner whether the stress source would be there no matter what school or education system she was involved in, Mr Hall said: “I would see it, that in her mind its injustice, its unfairness and that those are the things that operate in that school. The way that she talks suggest that she enjoys teaching, she enjoys children, she likes her work, she is good at what she does and this is all through her, I don’t go there and see it. She still relates to members of staff et cetera, et cetera. I see it to do with the qualities of the relationships, especially between the leadership and herself. I don’t see it as being a generalised issue across schools.” 27

[41] When specifically asked about reinstatement to the School and the impact on her mental health as against reinstatement to another school, Mr Hall said: “I think there would be issues each way. One of her concerns, and the reasons that she is pursuing this thing is that she is caring for other people and she has colleagues who are also on stress leave et cetera, so she’s concerned about what happens to them. She’s concerned about the school and the conduct of the school. I guess, she’s a very proper person who would feel a slight about being moved on, as it were, and so, they would be issues against her going to a different school. But certainly a fresh start could be something that could be very appropriate for her, where what’s happened is now somewhere else and she has the opportunity to establish herself without the history and maybe without some of the personnel.” 28

[42] He added: “I think she would struggle having to walk away from the things that she has so much concern about. But for her personally, a fresh start could be a very, very good thing.” 29

[43] I am concerned that Mr Hall’s evidence suggests that unless Ms Somasundaram’s issues are resolved in a way that conforms with her belief about what is right, she will become ill. The evidence however is not definitive. It was not his evidence that she should not return to the School. Ms Somasundaram returned to work in November 2013 and worked for 12 months while the incidents discussed in Commissioner Ryan’s decision took place. There is no evidence that she was unable to perform her duties in this time. She was not absent on workers compensation leave during this time.

[44] Also one wold not expect a repeat of what occurred in 2013 when Ms Somasundaram returned to work. One would expect a more experienced Ms Holmes, with proper support from the Department, would manage Ms Somasundaram’s return to work more professionally.

Conclusion

[45] Ms Somasundaram was unfairly dismissed. I consider that she is entitled to the remedy she seeks. Ms Somasundaram has been employed by the Department for nine years. If she is not reinstated, her prospects of gaining employment with the Department again will be minimal. The decision to terminate Ms Somasundaram was without foundation. Given the role of the Department and to a lesser extent Ms Holmes, through her inexperience, in creating the circumstances that lead to the events of 2013/2014, it would be unfair to enable them to rely on a lack of trust and confidence. It would be unfair to allow the Department to say we accept that the dismissal was unfair, but we can’t work with her because of what happened when she returned to work and what has been said on Ms Somasundaram’s behalf in the unfair dismissal process.

[46] I am not satisfied on the evidence that the risk to Ms Somasundaram’s health is such as to persuade me that reinstatement is not appropriate.

[47] I am not satisfied that a combination of these factors persuades me that reinstatement is inappropriate.

[48] I will make an order that Ms Somasundaram be reinstated to the position she held prior to her dismissal.

[49] Further, I am prepared to make orders in relation to Ms Somasundaram’s loss of income and continuity of service.

[50] No submissions were made about the quantum of Ms Somasundaram’s loss of income. The parties are directed to confer as to the amount. Should the parties fail to agree on the amount, Ms Somasundaram may apply to the Commission setting out the basis for the amount claimed. The Department will be then afforded an opportunity to respond.

[51] Orders to give effect to this decision will issue with this decision.

DEPUTY PRESIDENT

 1   [2015] FWC 4921

 2   Direction issued by Commissioner Wilson 21 August 2015

 3   Respondent's Outline of Final Submission regarding remedy at [16(a)]

 4   Exhibit A1 at Tab 32

 5   Transcript PN 832

 6   Ibid PN 837-840

 7   Ibid PN 831-833

 8   Ibid PN 831

 9   Ibid PN 241

 10   Ibid

 11   Ibid PN 3057-3058

 12   Ibid PN 3127- 3129

 13   Ibid PN 789

 14   Ibid PN 828

 15   Ibid PN 841

 16   Exhibit A1 at Tab 56

 17   Exhibit R1 at [82]

 18   Transcript PN 277

 19   Exhibit A1 at [52]

 20   [2015] FWC 4921 at [11]-[18]

 21   Ibid at [22]

 22   Exhibit A1 at Tab 58

 23   Transcript PN 335

 24   Exhibit A2

 25   Transcript PN 343

 26   Ibid at PN 349

 27   Ibid at PN 353

 28   Ibid at PN 360

 29   Ibid at PN 361

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