Andrew Saunders v CSL Limited T/A CSL

[2017] FWC 4188

[2017] FWC 4188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Saunders
v
CSL Limited T/A CSL
(U2017/798)

COMMISSIONER WILSON MELBOURNE, 14 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Andrew Saunders was employed by an operating division of CSL Limited, Seqirus, between 20 July 2015 and 19 January 2017. During the period of his employment Mr Saunders worked as a Brand Manager in the company’s Commercial Operations Department. He was dismissed for reasons of allegedly unapproved and unsubstantiated absences as well as alleged failures to comply with lawful directions to attend certain meetings in January 2017.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Saunders’ application was lodged with the Fair Work Commission within the 21 day period for making such applications; that, subject to the note below, at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] In relation to the matter of whether Mr Saunders was a person protected from unfair dismissal, it is noted that at the time of his dismissal on 19 January 2017 his total remuneration, including superannuation was an amount of $173,041 per year. Mr Saunders asserts that his employment was subject to an enterprise agreement which was conceded by CSL in its initial response to the Commission in which it was stated that Mr Saunders employment was covered by the bioCSL Enterprise Agreement 2015. 1 CSL did not contest the situation in the hearing or that Mr Saunders is otherwise not a person protected from unfair dismissal. Accordingly, this decision is made on the basis that Mr Saunders was a person protected from unfair dismissal at the time of his termination of employment.

[4] For the reasons set out below I find that Mr Saunders’ dismissal was unfair; that reinstatement is not appropriate in the circumstances; however that an order for compensation should be made.

BACKGROUND

[5] Mr Saunders commenced employment with CSL Limited in July 2015 having worked in the pharmaceutical industry as a sales representative since about April 2002. His work with CSL in the capacity of Brand Manager in a division of CSL Ltd named Seqirus. For the purposes of context, the work of Seqirus is described in the CSL Outline of Submissions as follows;

“Since November 2015, Seqirus is a subsidiary business under the CSL Group which operates the Respondent’s influenza vaccines. Seqirus predominantly manufactures influenza vaccines using both egg-based and cell-based technologies. Seqirus is a leading provider of in-licensed vaccines and specialty pharmaceuticals. It also manufactures and markets diagnostics for immunohematology laboratories and is the sole supplier of a unique range of products made in the national interest for the Australian Government, including antivenoms and Q fever vaccine.” 2

[6] For the purposes of consistency in this decision, the Respondent is referred to as CSL, except where a document refers to the business unit, Seqirus.

[7] Mr Maurice Addison, solicitor, was granted permission to represent Mr Saunders, pursuant to the provisions of s.596(2)(a) of the Act, with the Commission being satisfied that a grant of permission to him would enable the matter to be dealt with more efficiently, taken into account its complexity; and s.596(2)(c) which allows consideration that an unfairness may arise to a person taking into account the circumstances of both parties. Ms Melini Pillay, solicitor from the Ai Group Workplace Lawyers appeared for CSL, appearing pursuant to the provisions of s.596(4) of the Act, which allows the representation of persons by a lawyer who is an employee of an organisation that is representing the person.

[8] Evidence was given in this matter by Mr Saunders, who was the only witness on his behalf and, on behalf of CSL, Danielle Dowell, the company’s Commercial Director for Pharmaceuticals, and Susan Jackel, the Seqirus Employee Relations/Industrial Relations Manager. Ms Dowell has worked for CSL since 2011, and held her current position since 2012. Ms Jackel has only been employed by CSL since 26 September 2016.

[9] Evidence was not given either by Mr Saunders’s manager Mandi Robertson, who he accused of bullying him, or by the person who investigated his bullying complaints, who is an employee of another company the Papillon Consulting Group.

[10] Mr Saunders’ starting salary was a total employment cost of $168,000 per year. As well as his employment being covered by the BioCSL Enterprise Agreement 2015, it was also subject both to terms and conditions set out in an offer of employment and a Deed Poll dealing with a matter of confidential information. The letter of offer concedes that the terms of any legislation or industrial instrument will prevail in the event of an inconsistency. 3

[11] According to the payslips received by Mr Saunders his “award” classification was “bioCSL Level 6”, which is a classification appearing in the bioCSL Enterprise Agreement 2015.

[12] Mr Saunders’s letter of offer referred to his employment being subject to a probationary/qualifying period for the first six months of his employment. During that period both he and the company “will assess the suitability of continuing your employment”. 4

[13] As Brand Manager, Mr Saunders’ direct manager was Mandi Robertson, Marketing Manager, who in turn reported to Danielle Dowell, CSL’s Commercial Director for Pharmaceuticals.

[14] Mr Saunders duties as Brand Manager are set out within a position description as follows:

“Summary of Role:

• The Brand Manager will develop and implement marketing plans in collaboration with the brand team. The brand manager will be responsible for the profitability of the key products within the portfolio.

Reporting Structure:

• The position reports to the Marketing Manager

Responsibilities:

• Drive profit growth of the key products within the portfolio

• Develop and execute marketing strategies for the key products in the portfolio

• Evaluate performance based on agreed KPIs

• Develop and implement high quality marketing plans within the bioCSL budgeting time lines

• Understand customer needs and market issues and opportunities through market analysis and formal market research

• Work with external agencies to design and execute high quality promotional programs

• Accurately forecast stock requirements for all products in the portfolio

• Strengthen bioCSL relationships with KOLs in the key therapeutic areas

• Manage promotional expense budget

• Manage relationship with key customers internally and externally

• Manage strategic relationships with in-licensing partners by understanding key issues and opportunities with the Distribution Agreement

• Provide analysis of sales and market data on a monthly basis for bioCSL and partners

• Produce and deliver promotional materials required within timelines

• Effectively communicate clear objective, key strategies and product messages to sales team as required

• Ensure promotional materials comply with the Medicines Australia Code of Conduct and are produced in accordance with bioCSL copy approval process”  5

[15] Having commenced with CSL in July 2015 Mr Saunders employment came under some pressure from mid-2016. His evidence records that there were problems with his relationship with Ms Robertson from at least September 2016. Ms Dowell’s evidence was that she had misgivings about Mr Saunders during his probationary period, that she and Ms Robertson had lengthy discussions on the subject, and that Ms Dowell was more of the opinion that Mr Saunders was not suitable for the role but “that is not to say that he would not be good in other roles just that he was not right for this role”. Even so Mr Saunders was passed in his probationary period. 6

[16] By March 2016 Ms Dowell had formed the opinion that Mr Saunders’ performance was “doing worse”. She was concerned about an impending product launch in September 2016. 7 The sales team was engaged in June 2016 and by July 2016 Ms Dowell recollects that she had formed the view that Mr Saunders had not engaged well with the sales team which was “a necessary and key requirement of his role”.8 Ms Dowell’s evidence is that at some unspecified time during this period she encouraged Ms Robertson to engage with Mr Saunders through weekly catch up meetings and asked that he complete a work in progress report for the meeting which was in turn reviewed by Ms Dowell in her meeting with Ms Robertson. She formed the view that Mr Saunders had an inability to meet his position objectives on his own and further that it “was never a good sign that he took issue” with being asked by Ms Robertson about his progress against objectives.9

19 – 24 August 2016

[17] Allegations made to Mr Saunders by Ai Group Workplace Lawyers, the solicitors acting for CSL, in November 2016 put forward that on 19 August 2016 Mr Saunders participated in a meeting with Ms Robertson and a person from the company’s human resources department and that the subject of that discussion was his work performance. The same allegations put forth that at the conclusion of a further meeting on 24 August that Mr Saunders was provided with something referred to as a “Stage 1 Counselling email and Action Plan” which sought changes in his work performance;

“On 19 August 2016 Mr Saunders participated in a meeting with Ms Robertson, his direct Manager and Ms Murnane, HR Business Partner on his performance. That meeting was followed by further meetings on 23 August and 24 August. At the conclusion of the meeting on 24 August 2016, Mr Saunders was provided with a Stage 1 Counselling email and Action Plan, for 3 months. There were a number of areas he was asked to address his performance these include:

● Planning, meeting timelines and expectations,
● Strategic agility,
● Presentation skills,
● Following reasonable management direction and to keep manager informed of matters
● Feedback / Working effectively together.” 10

[18] According to the bioCSL Enterprise Agreement;

“There are four potential stages to bioCSL's approach in dealing with unsatisfactory performance or behaviour which are to be carried out in accordance with bioCSL policy, they are:

Stage 1

The employee is to be provided with an explanation of the unsatisfactory work performance or behaviour and be given an opportunity to respond. The employee is to be advised what must occur to remedy the problem(s) and be given a reasonable period for improvement.” 11

6 September 2016

[19] Mr Saunders’ evidence is that by September he was considering making an allegation of workplace bullying against Ms Robertson and that he discussed that prospect with colleagues and as a result of his consideration made a formal complaint to the company’s human resource department on this subject in September 2016. 12 Later correspondence from CSL to Mr Saunders advising him about the findings made in response to his complaints advises that the initial complaint was made on 6 September 2016.13 Mr Saunders’ evidence is that after his original complaint had been made that the Papillon Consulting Group (Papillon) was appointed by CSL to investigate the maters he had raised. Following discussion of the matters with him, he agreed with Papillon that the allegation should be reduced somewhat and recast as a total of 19 allegations, which were then the subject of investigation. Correspondence before the Commission indicates that the 19 allegations were confirmed by 21 September 2016 and that they are in the following form:

“STRICTLY CONFIDENTIAL

21 September 2016

My name is Andrew Saunders and these are my allegations against Mandi Robertson. I allege that:

1. On or around 2 February 2016 Mandi asked me if I had not selected Jacqui because I was a "fatist". When asked Mandi what a fatist was, Mandi replied words to the effect, "I don't like fat people - so I am a fatist. They don't have to be fat, they choose to be that way, because they are lazy".

2. On or around 23 June 2016 during an Acarizax promotional material meeting when Phil Jenkins mentioned that he didn't know I smoked, Mandi commented words to the effect, "If I knew he was a smoker I would never have hired him".

3. In response to my helpful comments on an email sent by Mandi at 15:53 on 20 January 2016 requesting information, Mandi responded to all addressees that the email was only for those participants in a teleconference and was for my information only. Further, Mandi unnecessarily capitalised my name in her response.

4. In the continuing email exchange (see 3 above), at 10:53 on 21 January 2016, Mandi diminished and demeaned my role by not commenting on Jill Allen's request, "Can you please invite Marcie rather than myself as she is across the details".

5. In response to a chain of emails including an email written by Mandi at 8:57 PM on 8 August 2016, I provided a graphic by email at 8:33 on 9 August 2016, for clarification. The following day, Mandi spoke to me asking me why I had replied to an email on which I was a Cc: addressee and said words to the effect, "You should only reply to an email when you are specifically asked something" and, "This is another example of you being distracted and taking you away from what you should be focussing on".

6. On 11 August 2016 at the WIP meeting with Mandi, when shown the feedback on my performance at the marketing day at the National Sales conference, Mandi commented, "ummm, yep, yep, yep, yep, yep. What you need to do when the team comes back in a few weeks is to ensure the energy is maintained".

7. On 12 August 2016 at the WIP meeting with Mandi, when I commented about feedback, Mandi replied, "How old are you, you are acting like a child. It makes me physically sick sitting here and hearing you think you have a good job after everything you have put these people through to get material approved. And you still haven't apologised. I am owed an apology, and the others are owed an apology by you. You should not be feeling happy because of what you have done and the misery you have caused to the lives of the people you work with and their families. People are miserable because of you".

8. In relation to a meeting with an external HCP, Mandi told me on 16 February 2016, "You are unable to recognise the verbal signs and body language of our customers. The HCP was obviously uncomfortable and not interested in the information you were providing". Mandi also told me the HCP was not listening to me and was more interested in what she (Mandi) was saying about BEACH data".

9. On 4 February 2016 when I advised Mandi that I could not recall a conversation which Mandi was asserting we had, Mandi commented that there was something wrong with my memory, questioned me about the possibility of me having Alzheimer's and suggested I go to a doctor for testing (in relation to my memory).

10. At a team meeting on 25 August 2016, in relation to checking my pigeon hole, Mandi said to me, words to the effect, "Andrew, you need to check these things".

11. Further to me placing a note and a number of responses into Mandi's pigeon hole on 29 August 2016, at a team meeting on 1 September 2016, Mandi asked, "Why would you take all those return mailers and put them in my pigeon hole, I never check my pigeon hole so you are lucky I was walking past to see if you had actioned my request". When I attempted to respond, Mandi cut me off saying, "Andrew just put them in my office; how hard is it to do that?"

12. Mandi excluded me from a SAS/APM working project group (originally created by me) which utilised presentation materials (created by me) and which met without my knowledge. When the first box of Acarizax was sent to patients, Mandi sent an email thanking around a dozen staff however I was excluded from the email. When I asked Mandi about not being included, Mandi responded, "Why would I be thanking you? This was started well before your time".

13. Mandi excluded me from the Acarizax/Sigma Pharmaceuticals plan, my initiative, when she removed me from meetings and managing external ~ relationships. Mandi has not given me any credit for the projects (training, stocked in 60 pharmacies at launch etc.) completed by me.

14. Mandi excluded me from the national sales conference dinner (my initiative for a team activity) arranging for me to rehearse with Dani Trum instead. It transpired that Dani Trum was aware that I was to rehearse with Dani Dowell, Director Commercial Operations Pharma, however I was not made aware until I was required to rehearse with Dani Dowell.

15. On 23 August 2016, Mandi hand delivered a laminated copy of the "Zax Team Values" to team members, however she excluded me by not giving me a copy.

16. On or around 26 July 2016 Mandi, in reference to a job which required Zinc approval, shouted out, "What is Andrew writing now, does he even know what he writes?" Further, Mandi failed to take appropriate action when Grace commented, "yeah I don't even pass on half the things he writes to the agencies".

17. Mandi failed to keep confidential, as instructed by HR, information provided by me at a meeting with Mandi and HR on 23 August 2016.

18. During my IPM review, Mandi stated that I had not achieved half the things the other brand managers were completing. This is unreasonable given the Zinc approval system notes (as at 14 September 2016): Acarizax 137, Palexia 123, and Zostavax 90.

19. Mandi has inappropriately blamed me for Acarizax promotional material not being ready on time (i.e. for the Sales Conference) and used this excuse at every opportunity when something does not go to plan. In June 2016, Mandi advised the earliest and latest possible dates for ARTG listings were 6 August 2016 and 31 August 2016 respectively. As 6 August was a Saturday I decided to use 3 August as the earliest possible launch date. The product received approval 3 August 2016. The Sales Conference was held during the week commencing 25 July 2016. The promotional material ought not have been ready or trained prior to the product approval date of 3 August 2016. The timelines as recorded in my IPM were met.” 14

[20] Ms Dowell’s evidence is that at about the same time she became Mr Saunders’ direct manager:

“After he made the complaint, given the nature of the complaint, Human Resources and I determined that it would be most appropriate that I become the primary contact with Andrew. He stopped having any direct contact with Mandi.” 15

[21] Mr Saunders evidence is that this never occurred. His evidence was that he was never told that the reporting line had changed and does not agree that he stopped being managed by Ms Robertson.

20 October 2016

[22] On 20 October 2016, Mr Saunders was informed that the investigation that had been undertaken by Papillion had been completed. The entirety of the communication to him was set out in a letter in the following terms;

“Private and Confidential

Dear Andrew,

I refer to my discussion with you on 20 October 2016; also present was Janelle Murnane, HR Business Consultant.

On 6 September 2016 you made a complaint regarding the conduct of Ms Mandi Robertson. Papillon Consulting Group was engaged by Seqirus Pty Ltd (Seqirus), to conduct a workplace investigation into your complaint. Attached to this letter is a list of the allegations that you made against Ms Robertson.

Findings:

Papillon Consulting Group made the following findings regarding the allegations that you made against Ms Robertson:

• The following allegations were substantiated - Allegations 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 15, 16 and 17.

• The following allegation was found to be substantiated in part- Allegation 9.

• The following allegations were unsubstantiated- Allegations 8, 13, 14, 18 and 19.

CSL considers that Ms Robertson's conduct related to Allegations 1, 2 and 16 was not consistent with its Diversity and Workplace Behaviour Policy.

Next steps:

1. A discussion will be held with Ms Robertson regarding the outcome of this investigation and where appropriate action commenced.

2. We encourage you to use the services of our confidential EAP service OPTUM, they can be contacted on 1300 361 008.

As discussed, this is a confidential matter and you are reminded of the need to keep this matter confidential.

Yours sincerely,

Sonia Pititto

Senior HR Business Partner” 16

[23] Mr Saunders was not provided with a copy of the investigation report or any summary of why the findings were made, or why in some respects his allegations were either not substantiated or only partially substantiated.

[24] His evidence is that within an hour or so of having been informed of the result of the investigation into his complaints about Ms Robertson that he was approached by Ms Dowell and told that he would be required to attend a formal disciplinary meeting in relation to his own conduct. This evidently took him by surprise; and Mr Saunders’ evidence is that he asked Ms Dowell whether he “was being terminated [and] she said there will be some form of disciplinary action that can include termination due to misconduct”. 17 The notification to Mr Saunders was given to him on 20 October 2016 and the meeting was to take place on 21 October 2016.

21 October 2016

[25] A meeting of sorts between Mr Saunders, Ms Dowell and Susan Jackel, the company’s Employee Relations/Industrial Relations Manager took place on 21 October 2016. Ms Jackel says that “Ms Dowell was to take Mr Saunders through the performance issues and several other matters that were raised by the investigation, including his recording of a meeting with Ms Robertson and a deliberate disregard to follow a workplace direction”. 18 Ms Jackel’s witness statement provides this context to what she means in this passage to “the investigation”;

“My earliest recollection on hearing about Mr Saunders was being in meetings/discussions where I heard about an investigation being undertaken and a report pending from an external company in relation to a complaint he had made about his manager, Mandi Robertson, Marketing Manager. I recall there was some discussion about extended poor performance prior to the complaint being made but at that stage I wasn't overly familiar with circumstances of the matter.” 19

[26] The references to his recording of a meeting and disregarding a workplace direction relate to matters that had arisen in the course of the bullying investigation but which by all accounts had not previously been put to Mr Saunders by 21 October 2016.

[27] When the meeting commenced Mr Saunders was alone and did not have a support person, he said to Ms Jackel that he had not had time to select one. 20 After an opening to the meeting in which Mr Saunders was apparently told that there were questions the company wished to ask him, he requested an opportunity to know the questions and take them away to prepare a response. Ms Jackel’s evidence is that in reply to that request she said words to the effect of “we will proceed to start the process, Dani will ask you some questions, hear your initial responses and then we’ll take a break to consider your responses, and giving you more time to provide written responses to some matters””21.

[28] Mr Saunders then told Ms Jackel and Ms Dowell that he had a medical certificate for personal illness. Ms Jackel requested that Mr Saunders obtain a copy of this medical certificate, which he did after which the meeting was suspended. 22

[29] After suspension of the meeting Mr Saunders left the premises and did not return again, progressing initially on paid personal leave which ran out after about two weeks. 23 He provided a number of medical certificates to the Respondent covering his absences.

10 November 2016

[30] On 10 November 2016, Kliger Partners, solicitors acting for Mr Saunders, wrote to CSL making a number of allegations including that the investigation finding that Ms Robertson had not engaged in bullying was unsustainable on the evidence; that it was unreasonable to subject Mr Saunders to performance management; and identified termination of his employment on agreed terms as a potential outcome.

[31] The correspondence accused CSL of seeming to be waiting for the first available opportunity to terminate Mr Saunders employment because of workplace rights he had or had exercised or proposed to exercise, thereby being in breach of the general protections provisions of the Act. The company was also informed that Mr Saunders intended to exercise his workplace rights to seek bullying orders both against the company and Ms Robertson in the Commission.

[32] Having traversed his complaints against the Respondent and Ms Robertson Mr Saunders’ solicitors then set out a proposal for resolution of the matter which, inter alia, proposed the termination of his employment in return for payment of significant compensation and other matters.

18 November 2016

[33] Ai Group Workplace Lawyers acting for CSL wrote to Mr Saunders’ lawyers on 18 November rejecting the allegations and their proposed resolution of the matter and set out a number of allegations it considered Mr Saunders should answer. The correspondence identified the company’s performance concerns that Mr Saunders had been asked to address in the 24 August 2016 Stage 1 Counselling email and Action Plan, referred to above.

[34] In a partial concession to Mr Saunders the Respondent conceded that it may be willing to consider his request that he no longer report to Ms Robertson and that it would reconsider working on reporting arrangements once he returned to work. The allegations then made against Mr Saunders to answer may be summarised as follows:

● First, that he recorded a conversation between himself and Ms Robertson on 11 August 2016 with that being contrary to law, as well as being damaging to the employment relationship. It was alleged in respect to the same allegation that Mr Saunders had been lawfully directed to delete the recording, but failed to do so;

● Second, that he recorded a conversation between himself and a third party who is not a CSL employee but with whom it has a professional relationship, with the recording being in breach of its “Seqirus Values of Collaboration and Integrity”;

● Third, that in another conversation with the person referred to in the second allegation, Mr Saunders “pushed” certain medical matters despite being aware that he is not the appropriate person to do so with those actions again being a breach of the Seqirus Values;

● Fourth, that Mr Saunders ignored a direction from Ms Robertson not to undertake a particular task. The reason for the direction being because she was concerned he not be overloaded with work;

● Fifth, that Mr Saunders breached his employment contract by engaging in private business or other employment and that he had told another employee he ran an eBay business selling sex costumes; and

● Sixth, that Mr Saunders was the subject of an unspecified complaint from Ms Robertson, “alleging harassment, sexual harassment and otherwise against Mr Saunders” and that “Seqirus are in the process of investigating those complaints” and in his absence is “holding discussions with other witnesses who are alleged to have witnessed such discussions”.  24

[35] The correspondence rejected the possibility of CSL providing Mr Saunders with a payment to leave his employment.

25 November 2016

[36] On 25 November 2016 Mr Saunders’ solicitors wrote to CSL’s solicitors advising that he continued to be unwell and that he was obtaining treatment from a general practitioner and a psychologist. The same correspondence also advised that “Mr Saunders disputes most or all of the allegations” and that he trusted his employment would not be terminated during the period of about 1 to 2 weeks in which he would endeavour to provide a detailed response to the allegations. Finally his solicitors, Kliger Partners, advised that they ceased to act for Mr Saunders.

1 December 2016

[37] Shortly after the above correspondence being sent on his behalf, Mr Saunders retained another representative, Alan Dircks from the firm Just Relations. It appears that after retaining Just Relations, a representative from the firm contacted the Ai Group about Mr Saunders. That contact in turn led to a letter being sent directly from CSL to Mr Saunders on 1 December 2016. The correspondence was in strong terms;

“Dear Andrew

We refer to recent correspondence sent on our behalf by Ai Group Workplace Lawyers Pty ltd to your then lawyers, Kliger Partners dated 18 November 2016 wherein a number of serious allegations were made against you.

We understand as of 25 November 2016, Kliger Partners are no longer instructed to act on your behalf. Nonetheless at the time of confirming this they were instructed to advise our lawyers that you anticipated "providing a detailed response to each and every allegation and matter raised in your letter in approximately 1 to 2 weeks." While we would not ordinarily consider some three (3) weeks necessary we have not pressed you on this matter and have merely adjusted our expectations to receive your response by 9 December 2016.

We were nonetheless concerned to learn from our lawyer, Ms Melini Pillay that a Mr Alan Dirks of Just Relations, contacted her on 30 November 2016 at approximately 2.25pm stating that this matter is "going to end up in an unfair dismissal claim Mr Dirks has suggested that Seqirus intend to terminate your employment the second you "walk in the door'.

Seqirus is troubled by the communication. Firstly, as relayed by Ms Pillay, there is no dispute with you presently on foot. As we understand it, you are simply in the process of responding to allegations we have put to you. Once we are in receipt of your responses, Seqirus will need to consider those matters and may need to make further enquiries. We are unable to predict what may occur. We have previously advised you of this course.

Seqirus takes seriously the obligations imposed on it by the Fair Work Act 2009. It does not take lightly the suggestion that it will or intends to breach the provisions relating to unfair dismissal, when we have at all times acted properly and appropriately in ensuring the discharge of our obligations.

Moreover, we are following a process to ensure you are afforded procedural fairness and every opportunity to understand and respond to the allegations against you.

Nonetheless, it is necessary that we advise you, that you cannot thwart the fair process offered to you by failing to cooperate or participate in the process or by circumventing the process or by attempting to obtain a financial settlement and then attempt to suggest the process was unfair.

In the event you have changed your mind and no longer intend to provide a response to the allegations by 9 December 2016 or at all, please contact Ms Jackel, Employee Relations/Industrial Relations Manager at [email address] at your earliest convenience, or no later than 2pm on 6 December 2016 to confirm this. Ms Jackel can be contacted on [landline telephone number]. Ms Jackel can also be contacted in the event you have any questions in relation to these matters.

On the basis of the communication from Kliger Partners that you would respond by 9 December 2016, Seqirus has set aside time to consider your responses and finalise its process by close of business, 13 December 2016.

Again, we encourage you to use the services of our Employee Assistance Service who can be contacted on [telephone number].

Yours sincerely

[signed]

Director, Commercial Operations” 25

9 December 2016

[38] Following this correspondence, Alan Dircks, from Just Relations, wrote on Mr Saunders’ behalf to Ms Pillay at the Ai Group Workplace Lawyers for CSL. Regarding the matters set out in relation to a possible Sixth Allegation, the correspondence rejected the prospect that there were allegations against Mr Saunders from Ms Robertson about harassment saying that he did not even know what the allegations were or the period they were supposed relate to:

“Subsequent to this date, Ms Robertson made a series of allegations against Mr. Saunders, including apparently harassment, sexual harassment and 'otherwise'.

It should be noted there had been no allegations made prior to this time that Mr. Saunders is aware of regarding asserted harassment, sexual harassment or 'otherwise'. Further, none of the issues that formed the basis of the allegations by Ms Robertson had ever been raised either during the probationary period, in performance reviews or in determinations regarding Mr. Saunders' recent salary increase.” 26

[39] In relation to the other allegations made against Mr Saunders by CSL, some appear to have been partially conceded, but said to be the product of reasonable behaviour; others were rejected outright; and finally, others were the subject of a request that additional details be provided, including details about who had made the allegations. The correspondence from Mr Dircks noted that Mr Saunders was generally seeking advice “due to the stress and anxiety that these substantiated allegations about his employer manager have had on him”, with the reference to the substantiated allegations being a reference to the matters that had been found as a result of the Papillion Consulting Group investigation into Mr Saunders complaints against Ms Robertson. In summary it was said on behalf of Mr Saunders that;

● First Allegation – in relation to the recording allegedly made by him, “[a]ny recordings made were reasonably necessary to protect the legal interests of the persons making them” and that his defence was that “the manager in question repeatedly misrepresented the contents of discussions subsequent to those discussions occurring”;

● Second Allegation – the allegation that Mr Saunders recorded a conversation he had with an external party was emphatically denied by him; he requested details of who made those allegations and in what context;

● Third Allegation – that he “pushed” a particular product; the allegation was not conceded although Mr Saunders put forward that he had referred the practitioner to the Medical Science Liaison (MSL) which was the process expected of him;

● Fourth Allegation – that Mr Saunders disregarded a direction from Ms Robertson not to meet with a particular party; Mr Saunders says that he had spoken with Ms Robertson on the morning of the meeting “and advised her of the meeting and purpose of the meeting” implying she had not objected, let alone directed, in relation to what he had said, and that his recollection was that Ms Robertson was not on holidays time;

● Fifth Allegation – that he did not have consent to engage in private business; Mr Saunders says that he advised Ms Robertson of his external hobby interest at the time of the initial interview and that she had told him it was not necessary to provide written confirmation as there was no conflict of interest;

● Sixth Allegation – that Mr Saunders harassed, sexually and otherwise, Ms Robertson:

“We note that you state Ms Robertson has now made a formal complaint alleging harassment, sexual harassment and otherwise against Mr. Saunders.

While we have sought details from you as to the nature of these complaints, including when the alleged events occurred and in what circumstances we note you have preferred to ignore this request.

We would also note that Ms Robertson was Mr. Saunders's immediate supervisor and had formal power and authority over him. The substantiated allegations against Ms Robertson show that she had no reticence about exercising that power and authority.

Ms Robertson allegations of harassment and sexual harassment are without basis and appear to be in direct retaliation to the substantiated allegations made against her.” 27

19 December 2016

[40] The response from Just Relations to Ai Group Workplace Lawyers drew a further response on behalf of CSL. The response on 19 December 2016 claimed that in certain respects Mr Saunders had failed to properly respond to it and in other respects contested what Mr Saunders had put forward as a response. It accused Mr Saunders of “some evasion of responding to the actual allegations and some intention to confuse otherwise clear factual matters” which “made it difficult for Seqirus to conclude Mr Saunders had been frank and honest in his responses”. 28 In relation to the allegations that had been put to Mr Saunders in November 2016 and the responses he had later given, he was advised:

● First Allegation – that the company considered Mr Saunders had failed to respond to the allegation that he had failed to comply with a direction by Seqirus to delete the recording;

● Second Allegation – the company noted Mr Saunders’ denial that he had recorded a conversation with an external party;

● Third Allegation – in response to Mr Saunders saying that he had referred the external practitioner to an MSL as required, CSL put forward that Mr Saunders had provided no documentation and that its checks internally appeared to show that it was not Mr Saunders but rather Ms Robertson who had made the MSL referral;

● Fourth Allegation – with the allegation pertaining to a failure by Mr Saunders to follow the direction from Ms Robertson not to attend a meeting, the response takes issue with the response given by Mr Saunders and maintains that he failed to respond to the allegation as to why he deliberately and intentionally failed to comply with a lawful and reasonable direction;

● Fifth Allegation – which relates to contention that Mr Saunders was engaged in private business while being employed by CSL, the response from CSL finds that Mr Saunders response to be insufficient and that in key respects Ms Robertson was not aware of the business Mr Saunders was undertaking at the time he discussed with her. The response advises that CSL is “disappointed at the clear lack of cooperation, unwillingness to be forthcoming and find it difficult to conclude he has been honest”;

● Sixth Allegation – each of the above matters is referred to in the letter as “First Allegation”, “Second Allegation”, etc; however this one is accorded merely the title of “other matters”, seeming not to any longer be an allegation, if it ever was. The matter refers to the claim of alleged harassment by Mr Saunders of Ms Robertson and Ai Group Workplace Lawyers responded to Mr Dircks with the following elliptical phraseology:

“vi) Other matters

Ms Robertson has now made a formal complaint alleging harassment, sexual harassment and otherwise against Mr Saunders. Seqirus are in the process of investigating those complaints and in your client's absence are holding discussions with other witnesses who are alleged to have witnessed such discussions. Mr Saunders may need to respond to those matters as well in due course” 29

[41] It also said in the same correspondence that this final matter was not an allegation at all;

“We note there was no Sixth Allegation posed to Mr Saunders. He was merely informed of the fact that Ms Robertson has made a complaint in relation to him. We have not sought a response from him in relation to those allegations, and it is Seqirus' intention to do so upon his return to work.” 30

[42] Finally, the 19 December 2016 correspondence from Ai Group Workplace Lawyers on behalf of CSL invited Mr Saunders to provide his response;

“… directly to the business, to Ms Susan Jackel, Employee Relations/Industrial Relations Manager at [email address]. We do note that the business will be in shutdown for the festive season and is unlikely to be able to respond further prior to 5 January 2017.

Mr Saunders is able to contact Ms Sue Jackel, on [landline telephone number] if he has any questions in relation to these matters.” 31

22 December 2016

[43] Alan Dircks of Just Relations sent an email directly to Ms Jackel, bypassing the CSL legal representative, on Thursday, 22 December 2016. Ms Jackel did not see the correspondence until 24 December 2016 and she did not respond at that time as she was on leave. 32 While this correspondence to some extent may have protracted the debate between the parties about which allegations were being made, and what had been responded to or not, it significantly referred to the prospect of a return to work by Mr Saunders with the correspondence saying that;

“Mr. Saunders is seeking to return to work and also enquiring when the Christmas celebrations are, to possibly commence facilitating that return. Can you please advise who he is to report to, given that his previous manager has now made a formal complaint of sexual harassment.” 33

[44] In addition to indicating that Mr Saunders was seeking to return to work and that he wanted advice about the mechanics of that, Mr Dircks also sought advice about what was sought by CSL in the way of a response from Mr Saunders regarding the Fifth Allegation. That is that he had undertaken his own private business interests contrary to his contract of employment and contrary to the knowledge of CSL. The following was put forward:

“Fifth Allegation

The original allegation sought responses to a series of closed questions regarding quantum of time spent on external interests. These responses were provided in a definitive fashion.

There was an additional assertion that the applicant was engaged in the sale of sex costumes, which was of course unfounded.

Can you please advise what response is now sought as there is no clarity in the narrative on page 3 and 4 of the letter dated 19 December.

As a recap - Mr Saunders advised Ms Robertson of his external interests at time of initial interview. There was no attempt to deceive and Ms Robertson advised at that time the she was satisfied that these interests did not have any impact on the employment relationship and that written permission was not required. These interests pre-existed and were made known to the employer. It was Ms Robertson, as the manager who advised that no written documentation was required.

Can you please clarify what the actual allegation is, and what it is that Mr. Saunders is to respond to.” 34

[45] A similar question was asked by Mr Dircks about what was sought in the way of response by CSL in relation to the Sixth Allegation, which the Applicant plainly took to still be a live allegation at that time:

“Allegations of sexual harassment and other harassment

Mr. Saunders is of course concerned as to these assertions and how he will now be perceived at CSL, after several of his current colleagues calling to comment on these allegations to him and showing concern how these allegations are impacting his current health and recovery. Mr. Saunders will respond to those allegations once he is made aware of when the asserted conduct is alleged to have occurred, who witnessed the alleged conduct, what actions were taken by Ms Robertson at that time they allegedly occurred to alert third parties of that conduct including making complaints to Human Resources and what other actions were taken at the time that the alleged conduct was said to have occurred. Mr. Saunders will give a formal response to these allegations once he has had an opportunity to seek external and independent industrial and legal advice, as is his right.” 35

[46] Finally in relation to the prospect of return to work by Mr Saunders the correspondence from Mr Dircks asked;

“As previously stated Mr. Saunders will be expecting to return to work to his previous role. Can you please ensure that his email and associated accounts are activated along with his security passes.” 36

4 January 2017

[47] On 4 January 2017, because he had not received any acknowledgement of his 22 December 2016 email to Ms Jackel, Mr Dircks sought her advice as to whether she had returned from leave. In response, also on 4 January 2017, Ms Jackel advised Mr Dircks that she had received the email and that she had referred it to Ms Pillay from the Ai Group Workplace Lawyers. Ms Jackel says in her witness statement with respect to the 4 January 2017 email that;

“I thought it was strange that Mr Saunders was seeking to return to work on 22 December 2016, when on 9 December Mr Dircks had indicated that he was seeking medical advice. There was no explanation for his absence on 20 or 21 December and he had made no contact with Ms Dowell to indicate he would be returning or was feeling up to returning. I also thought it was odd given Mr Saunders, like all CSL employees was aware of the business shutdown but attempts to suggest he was not.” 37

[48] After discussion within her witness statement about the things she did after 4 January 2017 and what she saw as strangeness within Mr Saunders’ responses to the company, Ms Jackel determined to correspond further with Mr Saunders, but without considering it important to communicate with Mr Dircks:

“Regardless, given there was no medical certificate to support an absence from work and Mr Dircks advice that Mr Saunders is seeking to return to work, we thought it appropriate that we write to him, to facilitate that return. I had some concern he may attend work that day or soon after, and I was keen to ensure he had a medical certificate to acknowledge the length of his absence and confirm that he was fit for normal duties and to continue with the disciplinary process.”  38

[49] Ms Dowell’s evidence includes that she came back to work on 5 January 2017 but that she had been working intermittently throughout her leave 39 and that Ms Jackel let her know about Mr Saunders desire to return to work”:

“When I came back I recall Sue advising me that it was likely Andrew would be returning soon, given the medical certificate had expired and unlike in the weeks prior there was no further medical certificate, and Mr Alan Dircks had advised Sue, Andrew would be returning to work via email on 22 December 2016.” 40

6 January 2017

[50] A letter was sent by CSL directly to Mr Saunders on Friday 6 January 2017 by Express Post. It is appropriate to set this letter out in full for the purposes of context to this decision;

“Dear Andrew

As you know our lawyers Ai Group Workplace Lawyers have been in communications with your representative, initially Kliger Partners and more recently Just Relations at your request. We note however given your pending return to work, we will now correspond with you directly.

On 18 November 2016, five (5) allegations were put to you via Kliger Partners. On 25 November 2016, Kliger Partners advised you would respond to those allegations within 1 to 2 weeks and confirmed they were no longer instructed by you.

On 9 December 2016 at 6.43pm we received a response from Just Relations to the allegations. In relation to the third and fifth allegations a reference was made to further documentation and/or circumstances. In relation to the fourth allegation a response that did not relate to the allegation was provided. On 19 December 2016 a further letter was sent by Ai Group Workplace Lawyers to Just Relations, providing you a further opportunity to provide any further information, clarification or response to the allegations.

On 22 December 2016, your representative Mr Dircks wrote to Ms Susan Jackel, our Employee Relations/Industrial Relations Manager. He indicated that in relation to the third allegation, you dispute that Ms Robertson made the referral and confirm that you did. In doing so a reference was made to ‘colleagues’ who are not identified, precluding further enquiry. We note the ‘documentation’ previously referred to was not provided.

It appears you are confused by the fourth allegation. We find this a little troubling as the conduct we seek a response to, being a failure to comply with a reasonable and lawful direction is directly taken from your words which formed part of your complaint. This was reproduced for you from your complaint. We consider it reasonable to presume that when referencing your complaint made under your signature you would be able to recollect the conversation referred to.

We note despite the details regarding the secondary employment referenced at allegation five, perhaps being the most concerning allegation, you have elected to provide no further information again suggesting there is a lack of clarity in the allegation.

We will be reviewing all communications and making a final decision in relation to these matters on Tuesday, 10 January 2017. If there is anything further you wish to add, please ensure it is provided by 10am, 10 January 2017.

We note it is indicated in Mr Dircks email of 22 December 2016, after our office closed for the holiday season that you are seeking to return to work. We are pleased to hear this. However we were not been provided with any information as to when you will return.

As you know, you have been absent since Friday 21 October 2016, when in the course of our disciplinary meeting you produced a medical certificate and have done so since that time. We have been provided with no details on your medical condition, your treatment, prognosis or an anticipated return date from a medical practitioner.

We are concerned that your condition may be ongoing, given as recently as 9 December 2018 Just Relations indicated you were “seeking advice due to the stress and anxiety that the substantiated allegation about his employer and manager have had on him”. Somewhat similarly your previous representative indicated on 10 November 2016 that you were likely to be absent from the workplace for a “lengthy period”.

As you may be aware, we have considerable obligations to you and your colleagues in the workplace under the OH&S legislation to ensure that we take all reasonably practicable measures to ensure your health, safety and welfare in the workplace. We are also obliged to ensure we do not expose you to any duties or circumstances that may aggravate, accelerate, exacerbate or deteriorate your current condition, whatever it may be. In addition to this, we need to be certain that being at work does not place your health at any risk.

In order to assist us in discharging our obligations and before we can return you to the workplace, we require you to provide a full medical clearance report from your medical practitioner [name] of [clinic name], referring to the period of your absence, referring specifically to any anxiety and stress you suffered/are suffering, confirming you are fit to return to your pre-illness role as· Brand Manager and in addition confirming that you are fit to partake in disciplinary discussions upon your return to work.

We note that you have not provided medical certificates since a certificate dated 12 December 2016 which certified you as unfit for your usual occupation until 19 December 2016. Accordingly, can you please provide medical certificates for your absence commencing 20 December 2016.

We would be pleased if you would attend Corporate Reception at 9am on Wednesday 11 January 2016 (sic) with the medical assessment and certificates for absences as noted above and ask for myself. If you are unable to obtain the medical report and certificates by 11 January 2017, please contact me and let me know when you will be possession of the report and certificates so we can schedule a time for your return to work. Upon receipt of the medical clearance, your swipe access pass and IT accounts will be reactivated. Please note that you will be reporting to me.

Please contact Ms Jackel on [landline telephone number] if you have any other questions in relation to these matters. We continue to encourage you to use the services of our Employee Assistance Service who can be contacted on [telephone number]. We look forward to seeing you next week.

Yours sincerely

Danielle Dowell

Director, Commercial Operations” 41

[51] There is no evidence before the Commission that CSL or anyone acting for the company endeavoured to provide a copy of the correspondence to Just Relations who was at the time acting for Mr Saunders, or to otherwise draw to their attention that such correspondence had been sent on the company’s behalf and that it included an important expectation on its part.

[52] The letter refers to an expectation on the part of CSL that Mr Saunders attend at the company on Wednesday 11 January 2017.

11 January 2017

[53] Ms Jackel waited for Mr Saunders to attend in accordance with her expectation; however he did not do so. She then arranged for a further letter to be sent again by Express Post to Mr Saunders on Wednesday, 11 January 2017. That letter sought that Mr Saunders attend a meeting with CSL at 9 AM on Friday, 13 January 2017.

[54] Again there is no evidence before the Commission that CSL or anyone acting for the company endeavoured to provide a copy of the correspondence to Just Relations or to draw its contents to their attention.

12 January 2017

[55] Even so, Ms Dowell forwarded a text message to Mr Saunders on 12 January 2017 at 3:52 PM drawing his attention to there having been an important letter sent to him. The text message read;

“Hi Andrew, I thought I would let you know that I sent you a letter in reply to your representatives communication informing me that you wish to return to work. If you can inform me if you have received my letter and will attend work tomorrow morning that would be appreciated. Regards Dani”. 42

[56] Ms Dowell’s evidence does not indicate why she considered it important to send such a text message to Mr Saunders, but did not communicate with his representatives on the subject. There is no evidence before the Commission that Mr Saunders saw or knew of the text message near to the date and time it was sent.

13 January 2017

[57] Mr Saunders did not attend the meeting as expected by CSL on 13 January 2017 or notify CSL that he was unable to attend.

[58] Ms Jackel’s evidence is that at 9:37 AM on Friday, 13 January 2017 Ms Pillay, acting for CSL, emailed Mr Dircks and enquired if he was still representing Mr Saunders. 43 At 9:57 AM on 13 January 2017 Ms Jackel received an email directly from Mr Dircks setting out the following:

“Dear Ms Jackel,

I understand there has been some correspondence directed to Mr Saunders over the recent period. Unfortunately, I have been informed by Mr Saunders' family that he is currently unwell and appropriate certificates will be forwarded as available.

If you have any queries about this matter over the next week please contact me. Subsequent to that I am overseas for 3 weeks and the contact in our office is Garry Dircks on [email address].

Note that Mr Saunders is not in a position to receive mail or phone calls and all contact should be either to myself or to Garry Dircks.

Yours faithfully,

Alan Dircks” 44 (underlining added)

[59] Ms Jackel reaction to receiving this email was that she “thought it was strange that within 20 minutes of receiving the email from Ms Pillay, he was suddenly able to inform me that Mr Saunders was ill, having not done so at any time since ending his email on 22 December or in his email of the 4 January 2017. It would seem an important matter to raise, given there was no explanation, approval or medical certificate to support an absence from the workplace”. 45

[60] Ms Dowell’s evidence is critical of Mr Saunders lack of contact with CSL during this period;

“105. The letter required a response from Andrew via a telephone call and attendance at a pre-arranged meeting.

106. Andrew never responded to the letter or attended the meeting. Andrew did not respond to my email or to my text message. I did not think that was acceptable given it is ordinarily the employee's obligation to contact me if they are absent which Andrew was aware of and had previously done.

107. I was told, I think by Sue that on Friday, 13 January 2017 there was some message not from Andrew himself but from Mr Alan Dircks, that he was unwell.

108. It was odd that he couldn't communicate this to me or provide a medical certificate as he had in the past, especially when he knew CSLs policy and had complied with it.

109. We waited for any medical certificates to be received, following that message. We thought one might come that evening or over the weekend or even on the Monday.

110. There was nothing.” 46

[61] CSL then determined to have Mr Saunders show cause why he should not be dismissed in a letter again sent to him by Express Post on Tuesday, 17 January 2017, with Ms Jackel giving this evidence;

“76. We discussed internally that we would expect to see a more detailed explanation of someone being suddenly 'unwell' to consider it genuine in the circumstances. I would have thought Mr Dircks would have provided the name of who had contacted him, when they contacted him and whether he had informed them to contact CSL directly. In addition to the timing of the information coming to hand, it all seemed a bit strange. We were also a bit baffled by the idea that Mr Dircks would substitute himself as our employee for discussions. Nonetheless, we assumed that he had probably told the family member to call him if they receive anything further from CSL.

77. Without any specific reason or medical evidence to confirm Mr Saunders could not even communicate with CSL, his employer, we thought it was unsatisfactory. Given the absence had persisted for almost a month, we considered it necessary that we arrange a show cause meeting.” 47

18 January 2017

[62] Ms Dowell forwarded a further text message to Mr Saunders at 4:57 PM on 18 January 2017, with the text reading;

“Hi Andrew, I wanted to text you to ascertain a response from you in regards to attending work tomorrow morning as per the letter you will have received today. Could you contact me please with a response. Regards Dani”. 48

[63] Again Ms Dowell’s evidence does not indicate why she considered it important to send such an email to Mr Saunders as opposed to communicating with his representatives on the subject. Especially given Mr Dircks advised on 13 January 2017 that his client was unwell. Again, there is no evidence before the Commission that Mr Saunders saw or knew of the text message near to the date and time it was sent.

19 January 2017

[64] Again Mr Saunders failed to attend the expected meeting with CSL set by it for Thursday, 19 January 2017. There was further correspondence between Ai Group Workplace Lawyers and Just Relations on the same day indicating CSL’s views about how Mr Saunders had acted and his failure to explain his absence or provide certificates to support his absence from the workplace since 20 December 2016. The correspondence maintained CSL’s view that it “is appropriate in the circumstances that CSL Limited continue to communicate directly with the employee, Mr Saunders”. 49

[65] Later the same day Ms Jackel and Ms Dowd together with Yvette Saunders, the CSL Director Human Resources Asia Pacific, met and agreed that Mr Saunders termination of employment was appropriate;

“81. On 19 January, Ms Dowell, Ms Yvette Saunders and I met and discussed the continued absence without reason or explanation from Mr Saunders, the lack of contact or communication and the inability to have any, and concluded it was unacceptable. We also considered the other issues in relation to his performance and the fact he hadn't been with the business very long, that there were outstanding disciplinary matters that were unresolved and the considerable financial settlement request and concluded it was likely he had abandoned his job.

82. We saw no reason to believe we were going to have any communication with Mr Saunders in the foreseeable future. There was no expectation of hearing from him and no expectation of receiving a medical certificate given it was a week since we had alerted Mr Dircks to his absence and nothing was forthcoming. In the circumstances, we considered termination was appropriate...” 50

[66] The reference to it being “a week since we had alerted Mr Dircks to his absence” appears to be a reference to the email Ms Pillay had sent Mr Dircks on 13 January 2017, in which she enquired if he was still representing Mr Saunders.

[67] Ms Dowell’s evidence echoes that of Ms Jackel’s that she expected better conduct of a senior manager than there being no contact from him at all “unless he was completely incapacitated”. 51 Ms Dowell’s evidence also deals with the eventuality of Mr Saunders having made contact as result of the company’s correspondence:

“117. If Andrew had communicated with me, by text, email and indicated when a medical certificate would be provided for his absence or even by his Doctor sending me a medical certificate on his behalf, which happens on occasion, I certainly would have thought it fair and prudent to continue to await his recovery, as we had done since 21 October 2016.

 86   Exhibit R2, Attachment SJ-13.

 87   Exhibit R2, SJ-23.

 88   Exhibit R2, SJ-23.

 89   Ibid, 10.

 90   Exhibit R2, Attachment SJ-18.

 91   Exhibit R1, [64].

 92   Exhibit A7, [28].

 93 Ibid, [35] – [36].

 94   Exhibit R2, Attachment SJ-8

 95   Ibid, Attachment SJ-7.

 96   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 97   Exhibit R5.

 98   Exhibit A7, [28].

 99   Exhibit R1.

 100   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 101   Haigh v Bradken Resources Pty Ltd [2014] FWCFB 236, with reference to Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 102 (1995) 67 IR 316

 103   [2000] AIRC 1151, Print S5109,

 104   Ibid, at [41] - [43]

 105 (2013) 229 IR 6, [2013] FWCFB 431

 106 Ibid, at [54].

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