Andrew Niechcial v J.T. Corrosion Industries Pty Ltd
[2013] FWC 4285
•4 JULY 2013
[2013] FWC 4285 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Niechcial
v
J.T. Corrosion Industries Pty Ltd
(U2012/6485)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 4 JULY 2013 |
Application for Unfair Dismissal - Dismissal was unfair - Compensation Awarded.
[1] Andrew Niechcial (the Applicant) was employed by J.T. Corrosion Industries Pty Ltd (the Respondent) from 12 May 2010 until his employment was terminated on 3 February 2012.
[2] The Applicant lodged an application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed.
[3] The matter was first considered by Deputy President Smith who granted the Applicant an extension of time 1 to lodge his application.
[4] That decision was appealed and the Full Bench 2 granted leave to appeal and determined the application for an extension of time question itself.
[5] In granting the application to extend time the Full Bench held that:
[12] On the facts, we think it is apparent Mr Niechcial first became aware of his dismissal after it had taken effect. Corrosion did not tell him he had been dismissed on 3 February 2012, rather they told him not to come into work next week as they did not have work for him. While Corrosion indicates that they told him not to come in until they got some work, we prefer Mr Niechcial’s evidence in this regard. Mr Niechcial’s evidence is contained in a sworn affidavit, whereas that of Corrosion is only contained in a letter to FWA. Further, Mr Niechcial’s evidence is consistent with the statement in the letter of Corrosion that work was coming in a week or two. Thereafter, Mr Niechcial contacted Corrosion seeking to attend at work but they continued to tell him not to come in and did not provide him with a payslip. Mr Niechcial then made his unfair dismissal remedy application on 27 March 2012.
[6] At the hearing Ms Meehan appeared for the Applicant and Mr Ruddell, a paid agent, sought permission to appear for the Respondent.
[7] The Respondent submitted that permission to appear should be granted because the Respondent was a small business with no specialist human resources staff and its main witness, Mr John Turkovich, the Respondent’s director, was from a non-English speaking background. Further, it was submitted that the Applicant was represented by someone who had workplace relations experience. This was not disputed by the Applicant’s representative.
[8] Section 596 of the Act provides for representation before the Commission:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
[9] I granted permission to Mr Ruddell to appear because it would have been unfair not to permit the Respondent to be represented particularly where it was not disputed that the Applicant was represented by someone with experience in workplace relations and the Respondent was a small business and the Respondent’s director, Mr Turkovich’s first language was not English.
[10] The matter was conducted in a conference and the witnesses gave evidence under oath.
Jurisdiction of the Fair Work Commission
[11] The Respondent submitted that the Applicant had not been dismissed and if he had been dismissed, the dismissal was not harsh, unjust or unreasonable. The Respondent submitted that if it were found that the Applicant had been dismissed, it was because his position was redundant.
[12] The Applicant submitted that the dismissal was unfair because he wasn’t given a reason for his dismissal and he was not provided with a separation certificate. Further the Applicant submitted that the dismissal was unfair because the Applicant’s job was given to the son of the Respondent’s director. It was further submitted that the Applicant was dismissed because the Applicant suffered a work injury. It was submitted that the dismissal was unfair because the Respondent had not treated the injury as a work cover injury. 3
Background
[13] The Respondent is a painting and sandblasting business and in February 2012 it had 8 employees.
[14] The Applicant performed sandblasting and general labouring work.
The Evidence of the Applicant
[15] The Applicant was employed as a full time employee from 12 May 2010. He gave evidence that on 3 February 2012 he was told by Mr Turkovich not to come to work the following week because there was no work.
[16] As the Applicant did not hear from Mr Turkovich, he telephoned Mr Turkovich on 12 February 2012 to find out if there was any work. 4 He was told there was still no work and he was told not to come to work that week. He was told that Mr Turkovich would call him when there was work but no call was ever made. He called Mr Turkovich again and was again told there was no work.5
[17] The Applicant at some time after this date decided that his employment had in fact been terminated and he asked Mr Turkovich for a separation certificate and his accrued entitlements. 6 It was his evidence that Mr Turkovich told him he would call him back but he never did.
[18] As a consequence the Applicant decided that the Respondent did not intend to provide him with work again and he lodged his unfair dismissal application on 27 March 2012.
[19] The Applicant injured his hand at work on 2 December 2010. He returned to work on 16 December 2010 and he was placed on light duties. 7 A workers compensation claim was not made. The Applicant returned to full duties on 4 January 2011. In May 2011, he developed a lump on his injured hand and he said that his foreman Mr David Turkovich was aware of his problem. In early 2011, the Applicant said another worker warned him that Mr Turkovich was not happy with him and he should be careful. This employee was not called to give evidence in this matter.
[20] The Applicant gave evidence that he told Mr Turkovich that his hand was sore in October 2011 but it was his evidence that Mr Turkovich did not want to know about it. 8
[21] Around Christmas 2011, the Applicant said he again told Mr Turkovich that his hand was very sore and again he said that Mr Turkovich didn’t want to know about it. 9
[22] Following the termination of his employment the Applicant lodged a work cover claim in April 2012 but payments did not commence until 13 September 2012. Compensation payments were backdated to 4 June 2012. The Applicant has not had clearance to work since June 2012.
[23] It was put to the Applicant that there was a barbeque at work on 3 February 2012 and that a meeting was held at the barbeque. It was put to him that Mr Turkovich told the workers that there was a downturn in work. The Applicant said he was not at the barbeque. It was further put to him that at the barbeque the workers, including the Applicant, agreed to go on unpaid leave until the work started coming in. The Applicant denied ever agreeing to take unpaid leave. 10
[24] After the conciliation conference, Mr Turkovich rang the Applicant and offered him work but the Applicant refused as he did not consider the offer to be a genuine offer. 11
[25] Ms Meehan gave evidence about these events and subsequent events as well as the Applicant’s injury and work cover claim. However she had no direct knowledge of any of the events leading to the termination of the Applicant’s employment.
[26] Mr Vincent Zibert gave evidence that on 3 February 2012 the Applicant came home from work and told him that he had been told not to go to work on Monday and that he was to ring Mr Turkovich next weekend to find out if there was work. It was his evidence that the Applicant rang Mr Turkovich and was told to ring again the next week. It was his evidence that this went on for weeks. 12 It was his evidence that when they met with Mr Turkovich after the conciliation conference he said there was no work for the Applicant because he had to give the Applicant’s job to his son.13 Under questioning Mr Zibert said he was unable to remember the events described in his witness statement. I have not had regard to Mr Zibert’s evidence.
[27] The Applicant sought to call Mr Dukker who had worked for the Respondent in 1986 and who had injured himself whilst employed by the Respondent. This evidence was called to support the contention that the Respondent sacked employees if they were injured at his premises. 14 Having read Mr Dukker’s statement, I ruled that this evidence was irrelevant to the matters before me. Even if the Respondent had terminated a worker in 1986 because he or she was injured at work it is not proof that the Respondent sacked the Applicant in 2012 because he was injured at work.
The Evidence of the Respondent
[28] Mr Turkovich gave evidence. 15 It was his evidence that in February 2012 there was a downturn in work.
[29] It was his evidence that on 3 February 2012 at 11.30am there was a barbeque held at work. The employees had some drinks because they were not going back to work. 16 He said to his employees words to the effect of the following:
“Due to the downturn in work and specifically a lack of current work in circulation which I believe to be a temporary situation I am requesting that all employees take a period of unpaid leave until such time as work picks up. I anticipate this to be only for short period of time and as soon as work picks up sufficiently you will be asked to return to work, work on your normal hours. We will do everything to ensure that things return to normal as soon as possible.” 17
[30] It was his evidence that all the employees agreed to this proposal and there was an expectation that employees would be back at work within a month.
[31] In his evidence in chief he said that by the middle of April several employees had returned. 18 That would have been 10 weeks after the employees had been stood down.
[32] It was his oral evidence that the first people who were recalled to work were those who could work in all areas of the business. 19 It was his evidence that this occurred after about 4 or 5 weeks.20
[33] It was his evidence that his 2 sons were not stood down. They had worked for their father for 25 and 28 years respectively. 21 There was also another employee who was not stood down.22
[34] He did not dispute that the Applicant rang him inquiring about when there would be work and on the second occasion he told the Applicant that there would definitely be work for him in a few weeks’ time. 23
[35] Mr Turkovich’s evidence about when employees returned to work was uncertain. The Respondent did not provide any documentary evidence to show when employees returned to work. Time and wages records would have put beyond doubt when employees returned to work but no such evidence was produced.
[36] Mr Turkovich received the unfair dismissal application at the end of March early April 2012. He did not consider that he had dismissed the Applicant and that he would return to work when there was work available.
[37] Mr Turkovich gave evidence, when questioned by the Applicant’s representative, that he had not claimed on his workers’ compensation insurance for the Applicant’s injury because it was a minor injury. He gave evidence that the injury was recorded in his injury book but he paid the medical expenses and paid the Applicant’s wages. 24
[38] He further denied that the Applicant had subsequently complained about his hand to him. 25
[39] Mr Turkovich stated that the Applicant had not been replaced and the work was shared by the other workers.
[40] Mr Robert Weaver, the site manager for the Respondent, gave evidence that he attended the meeting at the barbeque on 3 February 2012 and that the Applicant had been present. He said in his witness statement the Mr Turkovich said words to the effect of:
“Due to the downturn in work and specifically a lack of current work in circulation which I believe to be a temporary situation I am requesting that all employees take a period of annual leave until such time as work picks up. I anticipate this to be only for short period of time and as soon as work picks up sufficiently you will be asked to return to your normal hours. We will do everything to ensure that things return to normal as soon as possible.” 26
[41] It was his evidence that all employees agreed to this proposal. Mr Weaver gave evidence that he was off work for 3 weeks though he was called in to do some jobs in that time. 27 Mr Weaver was a subcontractor.28
[42] Mr David Turkovich, the workshop manager, also gave evidence he was at the meeting at the barbeque on 3 February 2012. He said that the Applicant was at the meeting. He said in his witness statement that Mr Turkovich said words to the effect of:
“Due to the downturn in work and specifically a lack of current work in circulation which I believe to be a temporary situation I am requesting that all employees take a period of leave until such time as work picks up. I anticipate this to be only for short period of time and as soon as work picks up sufficiently you will be asked to return to work on your normal hours. We will do everything to ensure that things return to normal as soon as possible.” 29
[43] It was his evidence that all employees agreed to this proposal.
[44] In his oral evidence Mr David Turkovich said that employees were told to “have a few days off and when work picked up again, everyone will be back.” 30
[45] It was his evidence that he continued working during the stand down of employees and his brother worked on and off. It was his evidence that all employees were back full time in three weeks. 31 When he was asked why the Applicant was not back at work with the other employees, his original response was that it was because of the unfair dismissal application. When it was pointed out that the unfair dismissal application was not made until 27 March 2012 he advised that he did not know why the Applicant was not back at work.32
[46] In re-examination, Mr David Turkovich maintained that employees were back in “a couple of weeks” 33 despite the Respondent’s representative and Mr Turkovich suggesting during re-examination that the period of time was longer.34
[47] I accept this evidence of Mr David Turkovich about when employees returned to work. He maintained this evidence even when led by the Respondent’s representative to modify this evidence. His evidence on this point was clear.
Findings
[48] The Respondent submitted that there had been no dismissal. It was submitted that the evidence supported a finding that the Applicant had agreed to be stood down without pay. I do not accept this submission. I found the evidence of the Respondent’s witnesses unconvincing. Each witness gave a detailed and nearly identical evidence of what was said at a barbeque held on 3 February 2012. I do not accept that Mr Turkovich used the words or works like the words set out in any of the witness statements.
[49] In his oral evidence, Mr Turkovich said that he said “everybody going to have some time off til when I get some work and I call people to come back.” 35 I consider that this statement more accurately reflects what Mr Turkovich actually said to employees. There is nothing in this statement that supports the contention that employees were being given a choice about what was going to happen. Even if the Applicant was at the barbeque, which is in dispute, there is no evidence that he agreed to be stood down indefinitely. Apart from the general evidence that all the employees agreed to what was said, there was no evidence that the Applicant consented to this proposal and I find that he did not.
[50] I accept Mr David Turkovich’s oral evidence that the workers were told that they would only be off work for a little while. 36
[51] It appears from the evidence that it was not uncommon for employees to go home when there was not enough work. 37
[52] Whether the decision to terminate the Applicant’s employment was made on 3 February 2012 as alleged by the Applicant or it was made some 3 weeks later is unclear. While I have found that the Applicant did not expressly accept the stand down, his conduct over the next couple of weeks indicated that for at least 2 weeks he thought he would be returning to work. If Mr Turkovich had said on the 12 and 19 February 2012 that he was to return to work he would have returned to work. It is clear that by the end of February the Applicant, by asking for his separation certificate, was treating his employment as having ended and it is clear that the Respondent had decided not to offer the Applicant work when work was available.
[53] There is no evidence that the Applicant expressly agreed to be stood down indefinitely. Even if the Applicant agreed not to attend work for the next couple of weeks on the understanding that when there was work he would be called back, the Respondent did not honour that agreement and the Applicant was entitled to presume his employment had ended. The Respondent made no attempt to keep the Applicant informed about what was happening.
[54] On Mr David Turkovich’s evidence all the employees, except for the Applicant and another employee who was asked to return but had made other arrangements, were back at work by the end of February 2012. This is well before the Applicant lodged his unfair dismissal application on 27 March 2012. Therefore on the Respondent’s own evidence there was work for the Applicant from the beginning of March and the Respondent did not offer this work to the Applicant.
[55] I therefore conclude that the Respondent did dismiss the Applicant from his employment from the end of February 2012 but the Applicant was not informed of that decision.
[56] The Respondent submitted that, if I find that there was a dismissal, then the Applicant was dismissed because there was no work for the Applicant to perform. In other words the Applicant’s position was redundant.
[57] The Respondent submitted that this was a genuine redundancy. 38 No evidence was called by the Respondent about its obligation to consult under any industrial instrument that applied to the Respondent. The Respondent submitted that it had 2 collective agreements, one applying to onsite construction work and one for the workshop however neither agreement was identified by the Respondent and no submissions were made that the industrial instrument did not impose an obligation to consult. The Building and Construction General On-site Award 2010 imposed an obligation on an employer to consult with employees if it plans to introduce major change.
[58] No evidence was called by the Respondent about redeployment and no submissions were made about whether redeployment was possible. Given one employee had declined to return to work and there was no evidence that it would not have been reasonable to redeploy the Applicant to do this work.
[59] As such, I am unable to conclude, on the evidence before the Commission, that this was a genuine redundancy.
[60] I accept that the decision to stand down the Applicant in February was because there was a shortage of work. However there is no basis for me to conclude that there was a shortage of work at the end of February when the other employees and contractor had returned to work. On the Respondent’s own evidence, during this time they had asked another employee to return to work and he had declined because he had made alternative arrangements. Therefore there is no basis on which I could conclude that there was no work for the Applicant to perform at the end of February 2012.
[61] The Respondent was a small business but no evidence was called to support any findings that the dismissal was consistent with the small business fair dismissal code.
Was the termination of employment harsh, unjust or unreasonable?
[62] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the Commission) must take into account the following.
s.387(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)
[63] No submissions were made that the reason to terminate the Applicant’s employment was related to the Applicant’s capacity or conduct.
[64] The Respondent provided no explanation as to why the Applicant was not provided with work after the end of February 2012. When Mr David Turkovich was asked he said he did not know why the Applicant was not brought back.
[65] The Applicant submitted that the dismissal was because of the Applicant’s injury. I am unable to conclude on the evidence before the Commission that the Respondent decided not to provide work to the Applicant because of an injury that occurred more than 12 months earlier in circumstances where there was no evidence that the injury had interfered with the Applicant’s work or that he had time off work as a result of the injury. The only evidence, that this injury was an ongoing problem for him, which was denied by Mr Turkovich, was that the Applicant had told him his hand was playing up.
[66] I am also unable to conclude on the evidence before the Commission that Mr Turkovich’s other son was doing the Applicant’s work.
[67] I am also unable to conclude that the non payment of incolink payments in October 2011 was evidence that the Respondent was planning to dismiss the Applicant. Nor can I conclude that the Applicant’s employment was terminated because he turned 21 on 23 December 2011. There was no evidence to suggest that the Applicant was a more expensive employee because he turned 21.
[68] The Respondent did not give evidence of any issues with the Applicant’s work performance, though it was accepted that the Applicant could not do all the jobs at the workshop.
[69] Therefore there was no valid reason for the termination of the Applicant’s employment related to the Applicant’s capacity or conduct.
s.387(b) - Whether the Applicant was notified of that reason
[70] The Applicant was given no explanation as to why his employment was terminated.
s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person
[71] As the reason did not relate to the Applicant’s capacity or conduct this criterion is neutral.
s.387(d) - Any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
[72] As there was no discussion, this criterion is neutral.
s.387(e) - If the dismissal related to unsatisfactory performance by the person-whether the person had been warned about that unsatisfactory performance before the dismissal
[73] The Applicant was not dismissed for poor performance.
s.387(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
[74] This was a small employer however the Respondent had been in business for a long time. There is no evidence that the Respondent had any regard to its obligations under the Act or its industrial instruments.
s.387(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
[75] There were no human resource specialists or expertise in the enterprise.
s387(h) - Any other matters that FWC considers relevant
[76] I accept that at the beginning of February 2012 the Respondent did not have enough work to provide full time work to its employees and contractors. I also accept that in those circumstances an employer and its employees can agree to a period of leave without pay to avoid the need to terminate an employee’s employment. However I have found that the Applicant did not agree to this arrangement.
[77] Even if there had been such an agreement the Applicant was entitled to terminate that agreement when after 3 weeks no work was made available to him.
[78] There was no sound, defensible or well founded reason for the Respondent not to offer the Applicant work from the beginning of March 2012.
[79] The Applicant was a young worker who had little or no understanding of his rights. When his employer told him on 3 February 2012 to go home and that he would be contacted when there was work available, he did as he was told. He did not question the right of his employer to stand him down without pay. He only questioned what was happening after the Respondent failed to contact him about when he was to return. In effect, the Respondent treated the Applicant as if he was a casual worker but he was not.
[80] I have had regard to the failure of the Respondent to take any steps to advise the Applicant about what was happening. In effect the Respondent was prepared to leave the Applicant in limbo indefinitely. The Respondent refused to provide the Applicant with a separation certificate which would have enabled him to claim unemployment benefits. The Respondent did not pay him in lieu of notice and did not pay him his entitlements until 17 May 2012. 39 This placed the Applicant in a difficult financial position.
Conclusion
[81] There was no justification for the termination of the Applicant’s employment. The Applicant was not afforded procedural fairness. Even a small employer should realise that leaving an employee in limbo about his or her employment status is harsh. For the reasons set out above, I find that the termination of the Applicant’s employment was harsh, unjust and unreasonable.
Remedy
[82] The Applicant is not seeking reinstatement of his employment. He seeks compensation of 6 months pay. Other than this being the statutory cap no submissions were made to support such an order being made.
[83] The Applicant was unfit to work from 6 June 2012 and remained unfit for work at the date of the hearing.
[84] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following.
s.392(2)(a) - The effect of the order on the viability of the employer’s enterprise
[85] No submissions were made by either party on this criterion.
s.392(2)(b)- The length of the person’s service with the employer
[86] The Applicant had worked for the Respondent for 2 years.
s.392(2)(c) - The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[87] The Respondent submitted that the Applicant would only have remained in employment for as long as it had taken for the consultation to occur. As I have concluded that there is insufficient evidence to support a finding that the Applicant’s position was in fact redundant at the end of February, I do not accept that he would have only remained in employment for one week. There was no evidence before me that there was a further downturn which could have resulted in the Applicant being made redundant. Given the time that had elapsed since the dismissal, if such evidence was available, the Respondent could have put it before the Commission. I find that the Applicant would have remained in employment for a further 12 months.
[88] After the termination of his employment the Applicant became unfit to perform his duties. His workers compensation claim was accepted and payments were backdated to 6 June 2012. He remains on workers compensation. Had the Applicant remained in employment for a further 12 months he would have been paid by his employer from 3 February 2012 to 6 June 2012 i.e. 17 weeks. In this period he would have earned for working ordinary hours a total of $11,628.00 plus superannuation of $1,046.52. No submissions were made that the Applicant would have been entitled to accident make up pay.
s.392(2)(d) - The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[89] The Applicant made no attempt to mitigate his loss while he was fit for work. His representative said this was because he had “low self esteem and the sacking does damage.” No evidence was put before the Commission that the Applicant was prevented for medical reasons from looking for work. It was said that until 27 March 2012 he was waiting to hear from his employer. I accept that was the case. However that does not explain why he did not attempt to mitigate his loss after that date. There was no evidence that from that date until 27 March until 6 June 2012 he made any attempt to mitigate his loss. I have deducted an amount of 10% from the monies he would have earned from 27 March to 6 June 2012 in light of his failure to mitigate his loss.
s.392(2)(e) - The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[90] The Applicant was paid $1,368.00 being 2 weeks pay in lieu of notice on 17 May 2012. In addition he was paid his accrued entitlements. I have not had regard to the accrued entitlements in calculating the compensation payable. I have reduced the amount of compensation to take into account the 2 weeks pay in lieu of notice. The Applicant had no other income in the period 3 February 2012 to 6 June 2012. The Applicant was in receipt of workers compensation payments from June 2012 to present. He had no capacity for work in that period.
s.392(2)(f) - The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
[91] As the Applicant is still unfit for work this is not relevant.
(g) - Any other matter that FWA considers relevant.
[92] No submissions were made that there were any other matters that are relevant.
Conclusion
[93] I have calculated the amount of compensation as follows:
● 7 weeks at $684 per week plus $61.56 superannuation plus 8 weeks at $615.60 plus $55.40 superannuation.
[94] I have therefore determined and order the Respondent to pay the Applicant $9,712.80 less applicable taxation and $874.15 to the Applicant’s superannuation fund.
DEPUTY PRESIDENT
Appearances:
Ms J Meehan for the Applicant
Mr J Ruddell for the Respondent
Hearing details:
2013
Melbourne
June 6
1 [2012] FWA 5266
2 [2013] FWCFB 193
3 Submissions of the Applicant
4 Exhibit A1 at [1] -[2]
5 Transcript PN 356 and Exhibit A1 at [5]
6 Ibid PN 147
7 Exhibit A2
8 Transcript PN 321-322
9 Ibid PN 327-332
10 Transcript PN 477, 487-491
11 Ibid PN 526-532
12 Exhibit A4
13 Ibid
14 Transcript PN 741
15 Exhibit R1
16 Transcript PN 909
17 Exhibit R1 Ibid at [9]
18 Ibid at [14]
19 Transcript PN 914
20 Ibid
21 Ibid PN 945-956
22 Ibid PN 971-972
23 Exhibit R1 at [12]-[13]
24 Transcript PN 829
25 Ibid PN 855
26 Exhibit R2 at [4]
27 Transcript PN 1031
28 Ibid PN 1038
29 Exhibit R3 at [4]
30 Transcript PN 1103
31 Ibid PN 1121
32 Ibid PN 1122
33 Ibid PN 1153
34 Ibid PN 1140-1144
35 Ibid PN 914
36 Ibid PN 1104
37 Ibid PN 221-222, 254, 265, 1050
38 See section 389 of the Act
39 Exhibit R1 at [18]
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