Applicant v Respondent
[2011] FWA 7884
•11 NOVEMBER 2011
[2011] FWA 7884 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Applicant
v
Respondent
(U2011/6915)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 11 NOVEMBER 2011 |
Application for unfair dismissal remedy - compensation ordered.
[1] This is an application by an Applicant, pursuant to s.394 of the Fair Work Act 2009 (the Act), for relief in respect of the termination of his employment by his employer (the Respondent).
[2] The application was subject to conciliation without resolution and allocated to me for arbitration. Section 397 of the Act provides that:
“FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[3] The matter involves facts the existence of which are in dispute.
[4] Section 397 provides that:
“FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the matter.”
[5] At the commencement of the matter, which was listed for Conference/Hearing, both parties agreed that the matter should be determined in conference. I reached a view that the determination of the matter in conference was the most effective and efficient way to resolve the matter. Accordingly, the determination has proceeded by way of a conference under s.398 of the Act, subject to the requirements of s.398 that the conference be conducted in private. As a result, this decision does not identify the parties or the relevant witnesses and refers to the activities undertaken by the Respondent in generalised terms.
[6] The Applicant was represented by Mr B Terzic, an officer of the Applicant’s union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU). The Respondent was represented by Mr J Tracey, of counsel.
The Issues for Determination
[7] It is common ground that the applicant was protected from unfair dismissal (see Division 2 of Part 3-2 of the Act).
[8] The first issue for determination is whether the applicant has been unfairly dismissed (s.385). It is common ground that the applicant was dismissed (s.385(a)), the Small Business Fair Dismissal Code does not apply in this matter (s.385(c)) and the dismissal was not a case of genuine redundancy (s.385(c)). As a result, the issue for determination is whether the dismissal was harsh, unjust or unreasonable (s.385(b)), requiring a consideration of the matters within s.387 of the Act:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[9] If it is found that the dismissal was harsh, unjust or unreasonable and the applicant has been unfairly dismissed, it is also necessary to consider what remedy, if any, should apply (Division 4 - Remedies for unfair dismissal - of Part 3-2 of the Act). In this case, the Applicant no longer seeks reinstatement and the Respondent has not contended that re-instatement is an appropriate remedy. I am satisfied that reinstatement of the Applicant is inappropriate. Accordingly, if remedy arises, the issue is whether or not an order for compensation should be made and, if so, the level of compensation. That issue will require consideration of the matters within s.392 of the Act:
“(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(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; and
(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; and
(g) any other matter that FWA cosiders relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 395(5) indexed to $59,050 from 1 July 2011
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[10] No one has argued that any monetary order, if made, should be in instalments (s.393).
Background
[11] The Applicant was employed by the Respondent on 1 May 2005 as a workshop technician. Prior to that time he had worked for a contractor to the Respondent (operated by the Applicant’s father) since around 1990, initially as a spray painter and then, from 2003, as a workshop technician, performing the same work as he did when directly employed by the Respondent. The Applicant became a direct employee of the Respondent as a result of a decision by the Respondent to undertake the relevant work, previously undertaken by the contractor, through direct employment. Both the Applicant and his father became direct employees, with the Applicant working closely with his father both before and after the commencement of the direct employment. The Applicant was translated to the Respondent’s classification structure as a Grade 3 technician, on the basis of his salary level.
[12] The Respondent imports industrial equipment, which is owned by it but leased to customers or sold to customers and provides maintenance, service and repairs to customers in relation to the equipment either on a service contract or an ad hoc basis.
[13] The area of operation of the Respondent relevant to the current matter is the workshop. The workshop is split into two areas: new equipment and used equipment. Prior to the termination of the Applicant’s employment, the two workshop areas were divided by a physical barrier. Since the dismissal, the Respondent has moved to new premises in which there is no such barrier. Eight workshop technicians work in the workshop: three in the new equipment area and five in the used equipment area. Until the time of the termination, 30 March 2011, the Applicant and his father worked in the new equipment area, along with one further workshop technician. Outside of the workshop, but relevant to the current matter, the Respondent employs 29 field technicians who visit customer sites and conduct service and repairs. Workshop technicians in the new equipment area prepare new truck orders to customer specifications, fitting components as required by specifications and test the equipment before it is dispatched to a customer. Workshop technicians in the used equipment area conduct maintenance and repairs of used equipment for return to the customer or resale. Equipment is usually maintained and repaired by field technicians on the customer’s site, only being brought to the workshop for service or repair if it is not convenient for the work to be done on-site or the job is too dirty for the customer’s environment (e.g. for hygiene reasons in a food manufacturing premises).
[14] The circumstances leading to the termination of the Applicant’s employment arose from a decision by the Respondent, for operational reasons, to require the Applicant to move from the new equipment area of the workshop to the used equipment area and his refusal to do so.
Evidence
[15] Evidence was given by the Applicant and his father.
[16] Further, the Applicant’s witness statement attached statements of three other employees - an Occupational Health and Safety (OHS) representative for the workshop technicians, an OHS representative for field technicians and an electrical trainer - and one former employee. None were required to attend for cross-examination by the Respondent.
[17] The Respondent brought evidence from several managers - the General Manager, Branch Operations (GMBO), the Victorian Service Manager (VSM), the General Manager, After Sales (GMAS) and the General Manager, Human Resources (GMHR).
[18] There is some conflict between the evidence of the various witnesses as to what was said and done at various meetings. From my observation of the witnesses, I do not attribute this to dishonesty on the part of any witness but find that the recollection of witnesses was sometimes imperfect, in relation to meetings which occurred three months before witness statements were prepared and over six months before their oral evidence was given. The evidence of some of the witnesses for the Respondent slipped from time to time between what was in their mind when talking to the Applicant 1 and what they said to the Applicant and on other occasions confusion of what was common knowledge with what was said to the Applicant in a meeting.2 I find that the evidence of the Applicant’s father was direct and straightforward and can be relied upon, save to the extent that, like all other witnesses his recollection of events was affected by the passage of time. The Applicant’s evidence was at times fluid.3 In relation to the meetings in which his father was involved, the Applicant’s evidence was in conflict with that of managers, whose evidence was largely supported by his father. Where the Applicant’s evidence was in conflict with that of other witnesses, due to his anxious state of mind during the various meetings and the difficulties of recollecting precisely what was said in meetings some time earlier, I prefer the evidence of the other witnesses.
[19] The following chronology emerges from the evidence.
February 2011
[20] In late February 2011, the VSM considered that it would be desirable for the business for the Applicant to move to the used equipment area for several operational reasons: 4
● The Respondent had engaged a new inexperienced technician and wanted to utilise the Applicant’s father as a mentor/trainer. The additional employee would increase numbers in the area beyond those required operationally and both of the other employees, the Applicant’s father and another employee, who had specialist electric equipment skills, were required in the new trucks area.
● The Respondent wanted to increase flexibility in workshop capabilities in the Victorian workshop, consistent with branches in other States and to meet fluctuating work demand between the two sides of the workshop.
● Having employees work across the two areas allowed technicians to develop a broad range of skills.
[21] In the last week of February 2011, the VSM called the GMAS to advise him of the decision to move the Applicant and discussed training requirements for the move. 5 Training needs were discussed at a broad level but not in detail and the Applicant’s training records were discussed.6 The intention was to use an experienced technician in the used area to supervise the Applicant, with national and/or local trainers training him if and when required.7 No training plan was put in place because the Applicant refused to move.8
11 March 2011
[22] Late in the working day, the Applicant was called to a meeting with the VSM and the workshop manager. The VSM explained to the Applicant that he wanted the Applicant to move to the used equipment area, providing a brief and partial explanation of the reasons - the desire to have his father train a new technician and the importance to the business of flexibility in the workshop. 9 The evidence of the VSM was that he informed the Applicant that he should not regard the move as a punishment and that it was to develop his skills and that the Applicant would be given appropriate training.10 The VSM’s evidence was that he then asked the Applicant if he understood and the Applicant grunted and left the room.11 The VSM did not take any action to explore the reasons for the Applicant not wanting to move because he left the meeting and did not follow up at all.12
[23] The Applicant’s evidence was different in two major regards. His evidence was that:
● he responded to the VSM, saying “I can’t do that work. I’m not a mechanic - I’m not a qualified mechanic and it would be unsafe for me to do that work”; 13 and
● the VSM did not mention training. 14
[24] The workshop manager was not called to give evidence.
[25] I find that the VSM communicated the operational reasons for his decision to move the Applicant to the used equipment area in a brief and partial way. 15 The explanation was perfunctory in an absolute sense and relative to the considerations which had led the VSM to his decision.16
[26] Given my general findings in relation to the evidence of the witnesses, I find that the Applicant did not raise his concern about his competency in the discussion with the VSM. I accept the evidence of the VSM that the Applicant did not respond in that meeting. I find that training was mentioned by the VSM but only to the extent of a general statement that appropriate training would be provided. The evidence does not support a finding that the VSM explained the approach to training and that he had discussed with the GMAS the close supervision of the Applicant by an experienced technician with formal training being provided if and when required. There is no evidence that the VSM mentioned the proposition that the Applicant would work under close supervision by experienced technicians in the new equipment area and the Applicant denies that this was said in the meeting. 17
[27] It is common evidence that the VSM also told the Applicant that he would start in his new role on the next working day, Tuesday, 15 March 2011 (Monday, 14 March, being a public holiday).
[28] Immediately after speaking with the Applicant, the VSM then spoke to the Applicant’s father, advising him of the Applicant’s move and that the Applicant’s father would be training a new employee in the new equipment area. The VSM’s evidence was that the Applicant’s father crossed his arms and said “No, I’m not having it, and if you do we will both resign”, 18 a response the Applicant’s father concedes was possibly made by him.19 I accept the evidence of the VSM in this regard.
[29] In discussions between the VSM, the GMHR and the GMBO after the 11 March 2011 meeting, the GMHR 20 and the GHBO21 each understood, from the VSM’s report of the meeting to them, that the Applicant had refused the request to move to the used truck area, without providing an explanation. Given, on the evidence, the Applicant offered no response to the VSM in the meeting of 11 March 2011 and the VSM could not have reached any view as to whether the request to move would be accepted by the Applicant from the meeting, it appears that the understanding that the Applicant had refused to move was inferred from the conversation between the VSM and the Applicant’s father. That response from the Applicant’s father could not be attributed to the Applicant as a refusal by him to move. The VSM had no basis for knowing from the Applicant that he refused to move at that point of time.
15-18 March 2011
[30] The Applicant was absent from work on carer’s leave. No discussion occurred between the Applicant and any manager over that period of time.
21 March 2011
[31] Soon after arriving at work on 21 March 2011, the Applicant attended the office of the VSM and provided a carer’s leave form to the VSM.
[32] Notwithstanding the fact that, after the 11 March 2011 meeting, the GMHR told the VSM that “we needed to take the time to carefully consider this issue, to reach the best resolution possible for everyone involved”, 22 in his first interaction with the Applicant upon his return to work, the VSM said to the Applicant “I want you to move to the other side of the workshop as we had discussed just prior to you being on leave”.23 The evidence of the VSM was that the Applicant replied “I’m not moving”, and the VSM told the Applicant that he had a decision to make and if he decided not to move there may be consequences for his employment. The VSM’s evidence was that the Applicant said something along the lines of “I’m not going to resign, you’re going to have to sack me.”24 The Applicant’s evidence was that the VSM said to him “You have got to go round to the new area, and if you don’t go you are going to have to give me your resignation”, 25 to which the Applicant replied “I’m not going to give you my resignation.”26 I accept the account of the VSM. It is consistent with the position of the Applicant recorded in the letter he prepared later that day.
[33] On neither account of the conversation was anything said about training or supervision. Whilst the GMHR, in his witness statement, 27 stated that the VSM explained, in the meeting, that the Applicant would get experienced supervision, that evidence was given on the basis that it was common knowledge that “Everyone has supervision ... and we do at lot of training”, rather than any knowledge that it was actually said.28
[34] After the meeting, the Applicant spoke to the workshop OHS representative and asked him if he could do the repair work without being trained for it, to which the OHS representative responded “No, definitely not”, citing the relevant OHS Act. 29
[35] The VSM spoke to the GMHR after the meeting and it was decided that a letter would be given to the Applicant formally directing him to move to the used equipment area. The VSM gave the letter to the Applicant on the afternoon of 21 March 2011. 30 The letter,31 drafted by the GMHR but signed by the VSM, stated:
“(Applicant’s name)
As you are aware, we have had a series of conversations recently regarding you undertaking work in the used (equipment) area of the Workshop.
You have indicated that you are refusing to do so.
It is important and necessary to have total flexibility within out Workshop.
The Company believes this request to be very reasonable.
By you refusing, it is now necessary that the Company formally directs you to undertake work in the used (equipment) area of our Workshop. You will be required to start work in this area tomorrow, 2nd March 2011.
If you continue to refuse, then you will need to be able to show good reason for this refusal. If you are unable to show good reason, then the Company will be forced to take disciplinary action, which may include termination of employment.
(Applicant’s name), I certainly hope you will follow this direction.
Please contact me if you have any questions about this.
Regards,
VSM”
[36] The letter makes no reference to the provision of training or supervision of the work. The GMHR, who drafted the later, explained 32 that this was because he was aware that the VSM had talked about training and training and supervision are something quite common to the Respondent.
[37] Overnight, the Applicant prepared a written response to the VSM’s letter.
22 March 2011
[38] The Applicant gave a copy of his written response to the VSM and faxed a copy to the GMHR. 33 The Applicant’s written response34 said:
“VSM’s name,
In response to your letter received yesterday I would like to make these points;
Firstly, I am not aware of a series of conversations that we have had. I am actually only aware of one brief meeting on the 11/3 and yesterdays’ encounter with you where I was told to go work in the used truck area or hand in my resignation which left me feeling quite upset.
I have worked for this company for 20 years, 14 years as a spray painter, the last 6 years I have been in the new truck production side of the workshop.
Before I started in this position the new production was not working very well with new trucks leaving the workshop wrong or not complete or even dangerous. I was trained in most aspects of production.
In the last 6 years the production side of the workshop has been the best it has ever been! Probably the best in Australia. I cannot understand why the company would want to change this and go back to the ‘Bad Old Days!’
My reasons for not wanting to change to the used truck area are;
I am NOT a trained mechanic and I feel that it would be unsafe not only to myself but also to other people in the workshop if I was to take on this position without the correct qualifications.
I am quite happy working in my current position and feel as though I am being bullied into working into a position that I am not only NOT qualified for but one that I also feel jeopardises my own personal safety and the safety of others and that is not a risk that I am willing to take. This is a job that I do not want to do.
I can't believe after 20 years of hard work and loyalty to (the Respondent), it has come to threats of disciplinary action and possible termination of employment.
Applicant’s name”
[39] Upon receiving a copy of the letter from the GMHR, the GMBO, who was the final decision maker in relation to the termination of the Applicant’s employment, took the initiative, after consulting the GMHR and VSM, 35 of arranging a meeting with the Applicant’s father and the Applicant in order to understand the reasons for the Applicant’s refusal to move.36 The GMBO described the purpose of the meeting as wanting a resolution to the matter and to better understand why the Applicant did not want to move.37 The GHBO met alone with the Applicant and his father because he had a good relationship with them and to avoid a perception, when the GMHR got involved, that “things are perceived to be perhaps more heavy and serious than they might need to be”.38 That is, the Respondent wished to avoid a perception that the situation was serious.
[40] The meeting commenced, initially, between the GMBO and the Applicant’s father but the Applicant was invited to attend when his father suggested to the GMBO that he should be talking with the Applicant.
[41] After the Applicant joined the meeting, the GMBO explained that the purpose of the meeting was to understand why the Applicant was refusing to move. 39 The Applicant expressed his concerns about the move, in similar terms as he expressed in his written response to the Respondent’s letter, stating that he did not have the required knowledge and skills to work in the new equipment area. The GMBO indicated that the Applicant should not underestimate himself because he was a Grade 3 technician. The Applicant advised that he had been placed at the Grade 3 level on the basis of salary translation, which surprised the GMBO.40
[42] The GMBO told the Applicant that since he had worked for six years on new equipment with his father, who was an experienced technician, he must have some knowledge on how to repair trucks. 41
[43] The evidence of the GMBO was that in the meeting the Applicant did not specify safety concerns but made a blank statement of safety concerns. 42 The GMBO did not explore the specific nature of the Applicant’s concerns,43 notwithstanding the fact that the Respondent had little appreciation of the basis of the Applicant’s concerns.44 The evidence of the GMBO was that he addressed the Applicant’s health and safety concerns during the meeting, advising the Applicant and his father that the Respondent was going to provide the necessary training and that this should address the Applicant’s concerns about safety.45 He referred to the benefits the Applicant would have gained from working with his father over many years and said the Respondent was happy to provide the Applicant with the necessary training once it assessed what it was he needed to be trained in and, most importantly, he would have two experienced technicians who had been in the used equipment area for a number of years and who would be able to guide and mentor him.46 The reference to supervision by experienced technicians was confirmed in the evidence of the Applicant’s father.47 The Applicant’s evidence was that the GMBO mentioned the names of two experienced technicians in the used equipment area48 although this was later retracted49 and his evidence was that the GMBO did not say that they would be able to assist him.50
[44] The Applicant’s father does not recall offers of training. 51 The Applicant’s evidence was that the GMBO did not say that the Respondent would provide training.52 The proposition that training was not mentioned at the meeting is not consistent with the understanding of the Applicant and his father, although just an impression,53 that the GMBO was going to look into everything and get back to the Applicant regarding what further training they were going to give him.54 Further, I do not accept that the provision of training was not mentioned by the GMBO, at least in a broad sense, when the Applicant had raised the need for training during the meeting.55
[45] The Applicant’s evidence was that he raised with the GMBO the fact that he was not a trained mechanic, 56 to which the GMBO responded that it was not necessary for him to be a trained mechanic to carry out work on forklifts.57
[46] The meeting ended with the GMBO saying, as suggested by the various witnesses, “Well, we do need flexibility in the company. I don’t know how we are going to proceed on this, but leave it with me”, 58 “Leave it with me. I’ll sort it out”59 or something similar60 and the GMBO thanking the Applicant and his father for their time.61 Nothing was said to indicate the next step to be taken.62
[47] The Applicant and his father, not unreasonably, expected that there would be some further follow up.
[48] Nothing further occurred until 30 March 2011.
[49] On the evidence, I find that the GMBO did advise the Applicant that his concerns about his competency, and the associated safety issues, were not accepted by the Respondent on the basis that the Applicant had the necessary skills, would work under the supervision of experienced technicians in the used equipment area and would receive the necessary training. With the exception of the passing reference to training by the VSM in the meeting of 11 March 2011, this was the first time that these matters had been raised with the Applicant. Further, I find that, notwithstanding the intention of the meeting to achieve a resolution to the matter and to better understand why the Applicant did not want to move, having regard to the terms of the Applicant’s written response to the 21 March 2011 letter of the VSM, neither outcome was achieved. In fact the meeting proceeded without any attempt by the VSM to ascertain the basis of the Applicant’s concerns beyond the broad expression of them in the Applicant’s written response. The meeting proceeded on the basis of the GMBO advising that the concerns, as expressed in the Applicant’s written response, had been considered and were not accepted on the basis set out at the commencement of this paragraph. No attempt was made to elicit any further information from the Applicant in relation to his concerns, which would have allowed the Respondent to better understand why the Applicant did not want to move (and to better respond to them). Unsurprisingly, after the meeting, the GMBO still did not understand the Applicant’s reasons for not wanting to move. 63 To the extent that the Applicant did elaborate on his concerns, by explaining that he had never been assessed at the Grade 3 level, no steps were taken after the meeting to examine whether that proposition was correct and to consider the implications if it were true.
[50] The GMHR concedes that the meeting did not achieve the best result possible because disagreement persisted. 64 Absent any meaningful attempt by the GMBO to better understand why the Applicant did not want to move, the focus on the meeting was on achieving a resolution of the issue by the Respondent advising that the reasons advanced by the Applicant for not wanting to move were not accepted by the Respondent, for the reasons indicated to the Applicant in the meeting, and hoping that the Applicant would accept that position, whether or not his concerns had been addressed to his satisfaction.65
30 March 2011
[51] The GMHR was on leave from 24 to 28 March 2011. 66 On his return to work on 29 March 2011, he spoke with the GMBO and VSM who advised him that the Applicant had not changed his response,67 although it is clear from the evidence that no further contact was made by managers and the Applicant in relation to the move between 22 and 30 March 2011, despite the VSM being on the floor of the workshop more often than was usual due to the absence from work of the workshop manager on paternity leave68 during that period.
[52] Early on the morning of 30 March 2011, the workshop manager asked the Applicant to attend a teleconference. He told the Applicant he could bring someone with him. The Applicant took his father due to the absence of the AMWU shop steward. 69
[53] The meeting participants were the Applicant and his father and the VSM in Melbourne and the GMBO and GMHR in Sydney. The only manager who spoke during the meeting was the GMHR.
[54] The GMHR went through all relevant events leading up to 30 March 2011. 70
[55] The GMHR explained to the Applicant the requirement for him to move to the used equipment area and the reasons for the decision. 71
[56] The GMHR explained that the Respondent had considered the reasons given by the Applicant for not moving 72 and did not believe that they were valid.73 The evidence of the GMHR was that he told the Applicant that he had still not substantiated his safety concerns74 given the Respondent had told him on several occasions that any training would be provided.75 The Applicant denies that the GMHR said the Respondent would provide all necessary training,76 although he accepted that he did at one point77 before again denying the proposition.78 The Applicant’s father confirmed that it was said by the GMHR.79
[57] The evidence of the GMHR was that he then asked the Applicant whether he would agree to move 80 and the Applicant said that he refused to move.81 The Applicant’s evidence was that he said “I can’t go. It’s not that I can’t - it’s not that I don’t want [to], ... I can’t because I haven’t got the skills”.82 The evidence of the Applicant’s father was that the Applicant said “he wasn’t happy to move there because of his concerns”.83
[58] The GMHR then said that this meant that the Respondent had no option but to terminate the Applicant’s employment. 84
[59] The evidence of the GMHR was that the Applicant asked if the Respondent was making him redundant. The GMHR said “No, ... you are refusing to do what we request, and that’s why your employment has been terminated”. 85 The Applicant’s evidence was that he said “Really” to which the GMHR replied “Yes”.86
[60] There is in fact a large degree of agreement between the Applicant’s and the Respondent’s witnesses as to the 30 March 2011 meeting.
[61] The only substantial area of disagreement is in relation to whether the GMHR indicated in the meeting that the reason that the safety concerns were unsubstantiated was that the Respondent had told him on several occasions that any training would be provided. This was disputed by the Applicant, although he accepted the proposition at one point in his evidence. The Applicant’s father confirms it was said. The weight of evidence, and the context in which the statement was made, support a finding that the reason was advanced by the GMHR, although there remains a dispute as to whether the prospect of training was raised by the Respondent in the earlier meetings.
[62] It can be seen from the evidence that the Respondent:
● went through the background and events leading up to the meeting;
● explained the requirement for the Applicant to move and the reasons for the request;
● explained that the Respondent had considered the reasons given by the Applicant for not moving and did not believe that they were valid and told the Applicant that he had still not substantiated his safety concerns given the Respondent had told him on several occasions that any training would be provided; and
● asked the Applicant whether he would agree to move.
[63] I find that the Applicant declined to move. I accept the evidence of the Applicant and his father that the Applicant explained that he would not move because of his concern that he was not competent to perform the work safely, consistent with the position earlier expressed by him.
[64] The Respondent then terminated the employment of the Applicant, rejecting the proposition that the Applicant’s position was being made redundant and explaining the reason for termination as the refusal of the Applicant to move to the used equipment area. The termination was confirmed in writing on 30 March 2011, with the reason recorded as “Your repeated refusal to undertake work in another area of our workshop”. The letter advised that the termination would take effect immediately, with payment of four weeks wages in lieu of notice.
Consideration
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[65] The Respondent argued that there was a valid reason for the termination of the Applicant’s employment: his persistent and repeated refusal to give effect to a lawful and reasonable direction to undertake his work in the used equipment area of the workshop.
[66] The Applicant disputed the existence of a valid reason for the termination on two alternate bases:
1. That the Respondent’s direction to the Applicant was unlawful and unreasonable, requiring him to undertake work beyond his competency, jeopardising his own health and safety, that of other employees and the health and safety of the ultimate users of the equipment; and
2. Even if the direction was lawful and reasonable, and would not, if implemented, put health and safety at risk, there was no valid reason for the termination in circumstances in which the Applicant held genuine concerns about his competence to undertake the work in the used equipment area safely, which the Respondent did not properly address before terminating his employment.
Was the direction lawful and reasonable?
[67] On the evidence, there was some commonality of the work tasks required of workshop technicians in the used equipment area and the new equipment area. Equally, there was some difference in the tasks, reflecting the repair and servicing of old equipment, as against the modification and preparation of new equipment. 87 The work in the used equipment area did raise the prospect of a requirement to apply different knowledge and skills and the possibility of the Applicant undertaking tasks in which he was not competent when moved to the used equipment area.
[68] However, the evidence of the Respondent was that it had in place policies and arrangements which would ensure that the Applicant did not undertake work for which he was not competent to undertake safely. Specifically, the Respondent had a health and safety policy that employees would not be expected to undertake work which they believed was unsafe - an “if in doubt, don’t do it policy” - under which employees were expected not to undertake the task but to raise any concern about safety with their superiors. 88 Second, it was intended that the Applicant would be eased into his new role, under the close supervision of experienced technicians in the used equipment area.89 Third, the Respondent intended, and had taken preliminary steps, to arrange any training necessary to provide the Applicant with any skills and competencies necessary to undertake particular tasks safely.90 Accordingly, the movement of the Applicant to the used equipment area was attended by processes and policies which would ensure that the Applicant was not required to undertake or in fact was not undertaking tasks he could not undertake safely.
[69] With those processes and policies in place, the direction to the Applicant to move from the new equipment area to the used equipment area did not create a health and safety risk and was a lawful and reasonable direction.
Given the direction was lawful and reasonable, was there a valid reason for the termination in circumstances in which the Applicant held genuine concerns about his competence to undertake the work in the used equipment area safely?
Submissions
[70] The Applicant submitted that he had a well grounded subjective belief that the order was not reasonable or lawful or had sufficient doubt about what was required of him to excuse his refusal to accept the direction to move to the used equipment area. The Applicant submitted that his concerns about the safety of himself and others were reasonably formed and the Respondent did not do enough to put those concerns to rest. In this circumstance, the Applicant submitted, there was no valid reason for terminating his employment and the termination of his employment was harsh, unjust or unreasonable.
[71] The Respondent submitted that it gave the Applicant a lawful and reasonable direction to move to the used equipment area and the Applicant’s refusal to give effect to that direction, put to him on numerous occasions, justifies termination of the Applicant’s employment.
[72] The Respondent submitted that its managers addressed the concerns of the Applicant about his competence to safely undertake the new work, in meetings and by letter, responding to very broad concerns being put forward by the Applicant and providing offers of training and mentoring which reasonably addressed the Applicant’s concerns about the new role, as put to the Respondent. The Respondent characterised the reasons consistently, but broadly advanced by the Applicant, as an excuse for not doing the job and an unreasonable excuse on the evidence, given the steps taken by the Respondent to address the concerns raised.
Consideration - Valid Reason
[73] The evidence establishes that the appallingly ineffectual communication between the Applicant and the Respondent lies at the heart of the events which transpired, leading ultimately to the termination of the Applicant’s employment. Both the Applicant and the Respondent bear responsibility for the failure in communication.
[74] The Applicant had a genuine and firmly held belief that he lacked the skills to undertake the new role proposed by the Respondent competently and safely. These concerns were conveyed in very generalised terms to the Respondent. The Respondent, on the other hand, was rightly confident that the process it had in mind for moving the Applicant to his new position would appropriately address any deficiencies in his skills and competence and his ability to perform his work safely and, as a result, could not understand the concerns raised by the Applicant. 91 The Respondent took no effective steps to better understand and address the Applicant’s concerns.
[75] The Applicant’s legitimate concerns involved a perception that he would be required to do all work in the used equipment area, some of which at least, he believed, would require the qualifications of a mechanic. It also involved a concern arising from the fact that he had never been assessed as competent as a Grade 3 technician. 92 He had not been exposed to the flexibility across the new and used areas of technicians in other States. He believed that the training he had undertaken within the company did not equip him to perform the new role safely.
[76] The Respondent, on the other hand, believed that the transition of the Applicant to the new area would be managed in a way which fully addressed any concerns about competency and safety. It placed reliance on the skills it understood the Applicant to hold - skills assessed at the Grade 3 technician level 93 and skills arising from training recorded in its training records.94 On this basis it was confident that it understood the Applicant’s skill base in the used area, what was required in the used area and the training required.95 It relied on the experience in other States of technicians working flexibly across both areas of the workshop.96 It envisaged that the Applicant would be eased into his new role, supported by two experienced technicians as guides and mentors, with training needs identified and met.97 The Respondent envisaged that training would be classroom and on the job, delivered mostly after the move.98 The Respondent intended that the Applicant would work under the supervision of an experienced technician in the used equipment area, until the supervisors were comfortable with his skill level in that area99 and training would be provided in accordance with the Respondent’s overall training initiatives.100 The Respondent acted on the basis of its knowledge that the role of workshop technician expected of the Applicant did not require him to be a trained mechanic101 and certain work that is required is undertaken by a specialist or undertaken outside of the workshop.102 The Respondent relied on its health and safety policy that employees would not be expected to undertake work which they believed was unsafe - an “if in doubt, don’t do it policy” - under which employees were expected not to undertake the task but to raise any concern about safety with their superiors.
[77] Save for its misapprehension that the Applicant had been assessed as competent at Grade 3 level, and possible inaccuracies in the summary of training records of the Applicant, the Respondent had a sound basis for believing that the Applicant could undertake the work in the used equipment area competently and safely and that its request for him to move was reasonable.
[78] However, the Respondent did not know that the Applicant refused to move until 21 March 2011 and did not have any knowledge of the basis for not wanting to move until the Applicant’s written position of 22 March 2011 was advised to it. 103 No meaningful discussion with the Applicant had occurred prior to the meeting of 22 March 2011.104 Even after the meeting of 22 March 2011, the Respondent’s managers were at a loss to understand the reasons for the Applicant’s refusal to move.105 The 21 March 2011 letter of the Respondent and the 22 March 2011 written response of the Applicant did not advance the state of knowledge of the Respondent any further because no meaningful attempt was made to identify the broadly expressed concerns of the Applicant in any more specific way.
[79] Further, little of the information which led management to be confident that the Applicant had, or could obtain, the skills necessary to perform the new role competently and safely was put to the Applicant:
● In the 11 March 2011 meeting, the operational reasons for the move were communicated to the Applicant in a brief and partial way, with only a general statement that training would be provided;
● In the meeting on the morning of 21 March 2011, all that was communicated to the Applicant was the requirement to move to the used equipment area. Nothing was said about supervision or training at all;
● In the afternoon of 21 March 2011, the VSM handed the company letter to the Applicant. Neither the provision of training or supervision was mentioned in the letter and all that the VSM said to the Applicant was to repeat the Respondent’s direction to the Applicant to move to the used equipment area; 106
● At the meeting on 22 March 2011, the GMBO addressed the Applicant’s health and safety concerns, advising him that the Respondent was going to provide the necessary training and this should address his safety concerns. The GMBO indicated that the Applicant would be provided with the necessary training once the Applicant’s needs were identified and two experienced technicians would guide and mentor him. The GMBO also put to the Applicant his Grade 3 technician grading and was apprised of the Applicant’s statement that he had not been assessed as competent at this level.
[80] In none of these meetings, which preceded the 30 March 2011 meeting at which the Applicant’s employment was terminated, did the Respondent seek to explore the basis of the Applicant’s concerns beyond the broad expression of them in the Applicant’s written response of 22 March 2011. At no point was the nature of the work discussed with the Applicant, including limitations on the work undertaken by non-specialist technicians. Nor was the concept of easing him into the new role explained beyond advising him that supervision would be provided. The Applicant’s revelation to the GMBO that he had never been assessed in his grade was not explored or considered further by the Respondent. 107 The Applicant’s training records were never brought to his attention or discussed with him. The process of training was not put to the Applicant beyond broad statements as to supervision and the provision of training. The Respondent’s “if in doubt, don’t do it” safety policy was not raised with the Applicant.
[81] The failure of the Respondent to explore and address the Applicant’s concerns may be seen in relation to the Applicant’s belief that he needed to be a mechanic to undertake the new role. Whilst the GMBO did explain to the Applicant, in the meeting of 22 March 2011, that he did not need to be a qualified mechanic to carry out work on the equipment, 108 this position was put as broadly as that, with there being no evidence that the nature of work expected of the Applicant and the process of his introduction into the new area109 was explained to the Applicant. The Respondent’s approach in this regard was that whilst it accepted that the issue was of significance to the Applicant, it was not significant in the mind of the Respondent’s managers.110
[82] I find that the Applicant refused to move to the new equipment area on the basis of a genuinely held belief that he was not competent to perform the new work safely, raising in his mind legitimate concerns about adverse effects on his safety and welfare and that of other employees and employees of the Respondent’s clients. I find that, save for a misapprehension as to the assessment of the Applicant’s skills, the Respondent had a reasonable basis for believing that the concerns expressed by the Applicant were not well founded. I also find that the Respondent failed to communicate to the Applicant the basis for its view that the concerns were unfounded, other than in the most general manner and failed to effectively identify and address the concerns of the Applicant. I find that, even after the meeting of 22 March 2011, the Respondent’s managers were at a loss to understand the reasons for the Applicant’s refusal to move. In these circumstances, I find that there was no sound, defensible or well founded 111 reason for the termination of the Applicant. Termination on the basis of the refusal of the Applicant to move to the used equipment area in those circumstances does not constitute a valid reason for the termination.
Was the Applicant notified of the reason for his termination?
[83] The Applicant was advised of the threat to terminate his employment, associated with a refusal to move to the used equipment area, by the VSM and in the Respondent’s letter on 21 March 2011. He was advised, on 22 March 2011, that the Respondent did not accept the reasons advanced by him for not wanting to move and the reasons for not accepting the concerns raised by the Applicant. However, no effective exploration and addressing of the Applicant’s concerns occurred.
Was the Applicant given an opportunity to respond to any reason related to his conduct - the refusal to accede to the move?
[84] The Applicant was afforded an opportunity, through the Respondent’s letter of 21 March 2011, to advance good reasons for his refusal to move, although his response, provided to the Respondent on 22 March 2011, was in generalised terms, such that the Respondent had no real understanding of the basis of the concerns he expressed. The meeting on 22 March 2011 was directed to better understanding the concerns of the Applicant, but proceeded on the basis of responding to the concerns raised in the generalised terms on which they were put and yielded no further understanding as to the Applicant’s concerns, other than the revelation that he had not been assessed as competent as a Grade 3 technician. Although given an opportunity to respond, the Applicant was not fully apprised of the basis upon which the Respondent dismissed the basis for refusing to move expressed in the Applicant’s written response.
Was the Applicant allowed to have a support person present to assist at any discussions relating to dismissal?
[85] The Applicant was not invited to have a person present in the discussions of 11 and 21 March 2011. By virtue of the fact that the 22 March 2011 meeting between the GMBO commenced with the Applicant’s father, he was present at that meeting when the Applicant attended. The Applicant was invited to have a support person present on 30 March 2011. He elected to have his father present, given the non-availability of the AMWU delegate.
Had the Applicant been warned of unsatisfactory performance?
[86] The dismissal did not relate to unsatisfactory performance of the Applicant.
Did the size of the Respondent’s enterprise impact on the procedures followed in effecting the dismissal?
[87] There is no evidence to suggest that the size of the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal.
Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the dismissal?
[88] The Respondent relied on human resource management expertise in effecting the dismissal, with the GMHR involved in discussions with the relevant managers from the outset and advising the GMBO, the manager ultimately responsible for the termination.
Any other relevant matters?
[89] I have had regard to the fact that the Applicant gave competent service to the Respondent for nearly six years as an employee and, before that, for around 15 years as an employee of a contractor which provided services to the Respondent. The failure of the Respondent to better explore the basis of the Applicant’s concerns takes on a greater significance in that regard.
Conclusion
[90] Considering my findings on each of the matters I am required to have regard to, I find that the termination was harsh, unjust and unreasonable.
Remedy
[91] Having found that the dismissal was harsh, unjust or unreasonable and the Applicant has been unfairly dismissed, it is also necessary to consider what remedy, if any, should apply. In this case, the Applicant no longer seeks reinstatement and the Respondent has not contended that reinstatement is an appropriate remedy. I am satisfied that reinstatement of the Applicant is inappropriate.
[92] It becomes necessary to consider whether an order for compensation should be made and, if so, the level of compensation. I am satisfied that in circumstances in which the termination of the Applicant’s employment was harsh, unjust and unreasonable and the termination has adversely affected the Applicant financially, an order for compensation to the Applicant in lieu of reinstatement is appropriate. That will require consideration of the matters within s.392(2) of the Act.
[93] The evidence before me indicates that the Applicant made some unsuccessful attempts to find alternate employment for a time and at some point decided to concentrate on establishing a web-based business as an alternate means of earning a living, with the Applicant also undertaking child care duties as his wife moved into full-time employment.
[94] The relevant evidence is as follows:
- The Applicant was paid four weeks pay in lieu of notice at the time of the termination of his employment on 30 March 2011; 112
- The Applicant’s gross weekly wage from the Respondent was $1,007.36 per week; 113
- At the time of making his witness statement, 114 on 27 June 2011:
- The Applicant’s wife was getting into full-time employment to pay the household bills and the Applicant was taking care of the children; 115
- The Applicant had had no success in finding work because jobs in the industry require qualified tradesmen; and
- Given the failure to find other work, the Applicant was starting up his own auto parts selling business.
- At the time of giving his evidence, on 3 October 2011:
- The Applicant’s wife had obtained a full-time job and because the Applicant and his wife have children, the Applicant stays home and looks after them because his wife has employment; 116
- The Applicant had started an on-line business, which was doing well, and allows him to sell things on-line as well as look after his children; 117 and
- Although it took a while to set up and get going, 118 the business yielded virtually the same net income as the Applicant got paid by the Respondent, $1,000 a week, net income119 over the last couple of months120 (August and September 2011).
[95] Section 392(2)(a) of the Act requires Fair Work Australia to have regard to “the effect of the order on the viability of the employer’s enterprise”. In this case there was no material before Fair Work Australia about the impact of any order on the viability of the Respondent. In such circumstances there is no need to make findings about this issue. 121
[96] Section 392(2)(b) of the Act requires Fair Work Australia to have regard to “the length of the person’s service with the employer”. The Applicant worked for the Respondent for nearly six years as an employee and, before that, provided services to the Respondent for around 15 years as an employee of a contractor. The length of the Applicant’s service favours the granting of a remedy.
[97] Section 392(2)(c) of the Act requires Fair Work Australia to have regard to “the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. I find that the Applicant would have continued in his employment with the Respondent for the foreseeable future but for the termination. There is no evidence to suggest that his employment was at risk but for the refusal to move to the used equipment area. The Applicant’s evidence was that he would have been more than happy to work in the workshop area had the Respondent properly identified and addressed the Applicant’s concerns about the move. 122 There was no evidence that the Applicant would have explored the option of starting his own business but for the termination of his employment and the difficulties encountered in obtaining suitable alternate work. I find that the Applicant would have remained in his employment for two years, so that the loss of remuneration is in the order of $100,000.00, which I would reduce by 20% for contingencies on account of the general uncertainties as to the continuation of employment.
[98] Section 392(2)(d) of the Act requires Fair Work Australia to have regard to “the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal”. Section 392(2)(e) requires Fair Work Australia to have regard to “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”. Section 392(2)(f) requires Fair Work Australia to have regard to “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”.
[99] I am satisfied that the Applicant took reasonable steps to mitigate his loss, seeking alternate employment, to the point of ascertaining that his lack of generic qualifications acted against him in obtaining such employment. In addition, after establishing that employers in the industry require qualified tradesmen, making it difficult to obtain alternate employment, the Applicant established his business as an alternate means of mitigating the losses arising from the termination of his employment, to the point of generating an income broadly at the level of his remuneration from the Respondent from August 2011. There is some uncertainty as to the continued success of the business in generating that income over the period over which his employment might have continued with the Respondent, reflecting general small business failure rates on the one hand and the possibility of increased earnings from the business on the other hand, which might have affected the level of income generated to offset the loss of remuneration from the Respondent over the relevant period. Further, I have had regard to the payment of four weeks notice to the Applicant in lieu of notice.
[100] Section 392(2)(h) of the Act requires Fair Work Australia to have regard to any other matters that Fair Work Australia considers relevant. As noted earlier, ineffectual communication between the Applicant and the Respondent lies at the heart of the events which led to the termination of the Applicant’s employment. Whilst I have found that the termination was harsh, unjust and unreasonable in circumstances in which the Respondent failed to effectively identify and address the concerns of the Applicant and failed to communicate to the Applicant the basis for its view that his genuinely held concerns were unfounded, the failure of the Applicant to communicate his concerns other than in general terms in his written response and, more particularly, in the meeting of 22 March 2011 contributed materially to the decision to terminate. I find that this is a relevant matter to be taken into account in determining remedy, to the effect of reducing the level of compensation which might otherwise be determined.
[101] The uncertainties as to the future, both as to the continuation of the employment and the success in offsetting the loss, may create some difficulty in assessing the factors within s.392(2) of the Act as to the loss of income and alternate income earned over the likely period of continued employment. Some greater clarity is available in relation to the period between the termination and the time of the hearing. It is clear that the Applicant would have received gross wages slightly in excess of $1,000 per week had he not been dismissed. Against that, it is clear that the Applicant was paid four weeks notice and his business, established as an alternative to pursuing other employment, yielded an income approximately equal to his wage with the Respondent from the beginning of August 2011. It may be seen that the Applicant was not in receipt of income at the level earned with the Respondent from May to July 2011 inclusive, a period of three months, although it is reasonable to infer that the business earned some net income prior to the time at which it yielded an income broadly comparable to the remuneration which would have been received from continuing employment with the Respondent.
[102] Having regard to the matters within s.392(2) of the Act, I find that that an order for compensation of $6,000.00 is appropriate in all the circumstances of this matter. An order for compensation at this level falls within the compensation cap in s.392(5) of the Act. No one has argued that any monetary order, if made, should be in instalments (s.393 of the Act).
[103] I will publish an order requiring that the Respondent pay to the Applicant a gross amount of $6,000.00 in compensation, subject to the deduction of taxation required by law, by no later than 2 December 2011.
SENIOR DEPUTY PRESIDENT
Appearances:
B Terzic for the Applicant.
J Tracey, of counsel, for the Respondent.
Hearing details:
2011.
Melbourne:
October 3.
1 For example, Transcript, at paras 1770-1773.
2 For example, Transcript, at para 1338.
3 For example, Transcript, at paras 587-591.
4 Exhibit R1, at 27-31.
5 Exhibit R1, at 33.
6 Exhibit R1, at 34.
7 Exhibit R1, at 35 and Exhibit R3, at 38.
8 Exhibit R1, at 36 and Exhibit R3, at 37.
9 Exhibit R1, at 38 and Transcript para 962.
10 Exhibit R1, at 39.
11 Exhibit R1, at 40.
12 Transcript, at paras 1139 -1143.
13 Exhibit A3, at 31.
14 Transcript, at para 230.
15 Exhibit R1, at 38.
16 Exhibit R1, at 28-31.
17 Transcript, at para 494.
18 Exhibit R1, at 42.
19 Transcript, at para 833.
20 Exhibit R2, at 6 and 8.
21 Exhibit R4, at 15.
22 Exhibit R2, at 7.
23 Exhibit R1, at 46.
24 Exhibit R1, at 47.
25 Exhibit A3, at 33 and Transcript at para 540.
26 Exhibit A3, at 33.
27 Exhibit R2, at 10.
28 Transcript, at para 1338.
29 Exhibit A3, at 34.
30 Exhibit A3, at 34 and 35.
31 Exhibit R1, Attachment F.
32 Transcript, at para 1415.
33 Exhibit A3, at 36.
34 Exhibit A3, Attachment C.
35 Exhibit R2, at 22 and Transcript at para 1873.
36 Transcript, at paras 1843-1844.
37 Exhibit R2, at 20.
38 Transcript, at para 1420.
39 Exhibit R4, at 21.
40 Transcript, at para 1850.
41 Exhibit R4, at 22 and Transcript at para 785.
42 Transcript, at para 1867.
43 Transcript, at para 1887.
44 Transcript, at para 1881.
45 Exhibit R4, at 23.
46 Transcript, at paras 1522 and 1773.
47 Transcript, at paras 789 and 852.
48 Transcript, at paras 587-9.
49 Transcript, at para 591.
50 Transcript, at paras 320, 494 and 591.
51 Transcript, at paras 786-788 and 856.
52 Transcript, at paras 307-308.
53 Transcript, at para 859.
54 Exhibit A5.
55 Transcript, para 490.
56 Transcript, at para 1761.
57 Transcript, at para 1763.
58 Exhibit A3, at 38.
59 Transcript, at para 797.
60 Transcript, at para 862.
61 Exhibit R4, at 26.
62 Transcript, at paras 1788 and 1790.
63 Exhibit R1, at 57.
64 Transcript, at para 1447.
65 Transcript, at para 1500.
66 Exhibit R2, at 24.
67 Exhibit R2, at 27.
68 Exhibit A3, at 39.
69 Exhibit A3, at 40.
70 Exhibit R1, at 62 and Exhibit R2, at 35 and Transcript, at paras 602 and 893.
71 Exhibit R1, at 62 and Exhibit R2, at 36 and Transcript, at paras 336, 341, 603-606 and 895.
72 Transcript, at paras 606-608 and 898.
73 Transcript, at paras 609 and 899-900.
74 Transcript, at paras 610 and 901-902.
75 Exhibit R2, at 37 and Exhibit A3, at 42.
76 Transcript, at para 314.
77 Transcript, at para 613.
78 Transcript, at paras 619 and 635.
79 Transcript, at para 903.
80 Transcript, at paras 636 and 905.
81 Exhibit R2, at 38 and Transcript, at para 636.
82 Transcript, at paras 325 and 638.
83 Transcript, at para 906.
84 Exhibit R1, at 62 and Exhibit R2, at 39 and Transcript at paras 657 and 909-910.
85 Exhibit R1, at 63 and Exhibit R2, at 41 and Transcript, at paras 680 and 912.
86 Exhibit A3, at 43 and Transcript, at para 911.
87 Exhibit R1, at 53, Transcript at para 167.
88 Exhibit R1, at 59 and 60 and Transcript at paras 502-503, 1515 and 1770.
89 Exhibit R1, at 35 and Exhibit R3 at 38.
90 Exhibit R1, at 35 and Exhibit R3 at 40.
91 Transcript, at paras 1205, 1280 and 1480.
92 Exhibit A3, at 25 and Transcript, at para 209.
93 Exhibit R1, at 16, Exhibit R2, at 20 and Exhibit R3, at 19 and 21 and Transcript, at paras 1056-1057,1080, 1082, 1600 and 1641.
94 Exhibit R1, at 53.
95 Transcript, para 1198.
96 Transcript, at para 1280.
97 Transcript, at para 1773.
98 Transcript, at para 1105-1106.
99 Exhibit R3, at 38.
100 Exhibit R3, at 40.
101 Exhibit R2, at 19.
102 Transcript, at paras 1610 and 1654.
103 Transcript, at para 1146.
104 Transcript, at para 1408.
105 Transcript, at paras 1185 and 1187.
106 Exhibit R1, at 50.
107 Transcript, at para 1850.
108 Transcript, at para 1761.
109 Transcript, at para 1191.
110 Transcript, at paras 1190 and 1763.
111 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373.
112 Exhibit A3, attachment D.
113 Exhibit A3, attachment E.
114 Exhibit A3.
115 Exhibit A3, at 55.
116 Transcript, at para 150.
117 Transcript, at paras 150 and 151.
118 Transcript, at para 156.
119 Transcript, at para 151-3.
120 Transcript, at para 156.
121 Thompson v Kingston Kids Pre-School & Childcare Centre, Print S5189, at paras 18-19.
122 Exhibit A3, at 58.
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