Application by Peter Farac
[2021] FWC 5107
•17 AUGUST 2021
| [2021] FWC 5107 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Peter Farac
(AB2020/469)
DEPUTY PRESIDENT BULL | SYDNEY, 17 AUGUST 2021 |
Application for a FWC order to stop bullying - Whether behaviour of manager and management was unreasonable - Alleged constant insults and belittling, diminished job opportunities and removal of opportunities without reason or explanation.
Contents | Page |
1 Background | 2 |
1.1 Mr Farac’s complaint | 4 |
2 The Commission’s jurisdiction | 7 |
3 Background to funds structure, roles in the team and management at Pendal | 11 |
4 Examples of bullying conduct and findings | 15 |
4.1 Newsletter incident | 15 |
5 Other evidence | 83 |
6 Evidence of Richard Brandweiner | 83 |
7 Evidence of Danni Martin | 89 |
8 Failure to provide Farac with investigation report | 96 |
9 Pendal’s acceptance of investigation report | 98 |
10 Request to attend medical examination | 99 |
11 Evidence of Tim Hext | 100 |
12 Conclusion | 104 |
12.1 Do findings amount to bullying? | 110 |
1 Background
[1] In this matter, Mr Peter Farac, a Portfolio Manager employed at Pendal Group Ltd (Pendal) claims he has been subject to unreasonable behaviour at work creating a risk to his health and safety which has been repeated constituting bullying pursuant to s.789FD of the Fair Work Act 2009 (the Act). The conduct is alleged to have been undertaken by his immediate manager Mr Vimal Gor, Head of the Bond, Income & Defensive Strategies Boutique (Boutique) at Pendal.
[2] Mr Farac seeks orders to prevent the bullying from continuing. 1 Mr Farac states that the orders sought will enable him to return to the workplace from which he has been absent since late September 2019.
[3] Mr Farac’s initial application filed on 14 July 2020, and an amended application of 27 November 2020 named only Mr Gor as being the perpetrator of the bullying behaviour. This position was confirmed in the evidence given by Mr Farac in his witness statements and his oral evidence.
[4] During the hearing on 14 December 2020, Senior Counsel for Mr Farac submitted that two other employees of Pendal, Mr Richard Brandweiner Pendal’s Chief Executive Officer Australia and Ms Danni Martin Pendal’s Head of Employee Experience also engaged in unreasonable behaviour directed towards Mr Farac. 2
[5] On 3 June 2020, a further amended application was filed on behalf of Mr Farac which named Mr Brandweiner and Ms Martin. It was explained by Mr Farac’s Counsel in opening and in closing that these two employees also participated in elements of the bullying behaviour, although no finding against them was being sought. 3 The application to include the additional named persons was opposed by Pendal, who did not purport to represent either of the additionally named employees.4
[6] In correspondence dated 10 June 2021, solicitors for Mr Farac confirmed that they did not seek orders against Mr Brandweiner and Ms Martin. It is noted that Mr Farac did not in his evidence allege he was bullied by either Mr Brandweiner or Ms Martin. 5 On the basis that no orders are sought against the additionally named persons and that both gave evidence in this matter (even though they were unrepresented) and no prejudice to the employees themselves is immediately apparent, and the findings made in respect of their conduct, the Commission is prepared to allow the amendment to the application as sought.
[7] Mr Farac’s employer Pendal is a global investment management business offering investment strategies in an effort to provide enhanced investment returns for clients through active management and operates a multi-boutique style business. As of 31 December 2020, Pendal had $97.4 billion in funds under management. 6
[8] Pendal made an application for a number of confidentiality orders pursuant to ss.593(3) and 594(1) of the Act. No confidentiality orders were issued but the Commission agreed to restrict the hearing to the parties only, and consider as confidential the transcript and material filed in the proceedings. 7 The Commission also determined not to publicly identify the names of Pendal’s clients or funds being managed on the basis of commercial sensitivity.8 On this basis the name of particular funds and client names have been de-identified in this decision.
[9] A number of conciliation conferences were conducted by the Commission in an effort to resolve this matter which were unsuccessful, requiring the application to be arbitrated.
[10] Mr Farac and the respondents were granted permission to be represented by counsel pursuant to s.596(2)(a) of the Act. 9 Both parties also raised various objections relating to the written evidence which was filed which the Commission has had regard to in terms of relevance and weight.
[11] Other than Mr Farac’s own evidence, he did not call any other Pendal employee to corroborate or support his allegations and contentions. Pendal, in defence of Mr Farac’s application, and in addition to the evidence of Mr Gor, relied on the evidence of Mr Brandweiner, Ms Martin and Mr Hext, a Portfolio Manager.
1.1 Mr Farac’s complaint
[12] Mr Farac provided two witness statements, the second in reply to the witness statements of the respondents.10 Mr Farac stated he was 39 years of age and was employed initially by the BT Financial Group Pty Ltd around December 2003, 11 which in 2018 changed its registered company name to the Pendal Group. Mr Farac stated that he commenced employment with Pendal after completing a Bachelor of Commerce and a Bachelor of Science at the University of New South Wales, and that this was his first job on finishing his university studies.12
[13] It was Mr Farac’s evidence that when he first commenced employment at Pendal, his employment contract provided him with an annual remuneration package of $47,000. It was stated during the hearing that in 2016/17 he was paid around $1.4 million. 13 In 2019, Mr Farac’s remuneration was around $750,000.14 In September 2019, Mr Farac commenced sick leave (he has since not returned to the workplace) and is said to have about $1.2 million in long term incentives due to him15 although the amount was not payable should he have resigned at the time.16
[14] To the best of Mr Farac’s recollection, when he interviewed for the role in Investment Operations at BT Investment Management, he did not recall having any discussion about how bonuses would be determined. Mr Farac did state, however, that throughout his employment from 2003 to 2019:
• he received positive performance reviews each year from his supervisor;
• he received positive performance reviews for the duration of the period between 2010 to 2019 from Mr Gor;
• he consistently received a performance bonus in reflection of his excellent performance;
• to his understanding, bonuses were at all relevant times awarded on the basis of performance; and
• as an example of the product of his work performance, in the 2018-2019 period when he was managing the G fund portfolio, the I fund suite of portfolios, creating and backing up Ms Xie Patrick on the F fund and trading a sleeve on the C funds until April 2019, he was responsible for the management of portfolios that generated revenue of approximately $9 to $10 million in management fees per year.17
[15] In early 2010, Mr Farac began reporting to Mr Gor while employed in the position of Portfolio Analyst. In March 2013, he was promoted to Portfolio Manager, a position he currently occupies. Mr Farac maintained that he had been subject to bullying in the form of repeated and unreasonable behaviour from Mr Gor since 2010. Mr Farac agreed during cross-examination that the first time he raised an issue in respect of wanting to complain about Mr Gor was not until towards the end of September 2019. 18
[16] In October 2019, he proceeded on ‘stress’ leave and has remained off work since that date.
[17] Mr Farac described the bullying conduct to include but not be limited to:
a) being subjected to unreasonable and repeated shouting and aggressive demeanour from Mr Gor;
b) Mr Gor diminishing his job opportunities and seniority within the business by failing to acknowledge him as a Portfolio Manager despite having managed a multitude of products;
c) being provided with tasks and responsibilities and then having these arbitrarily removed by Mr Gor without reason or explanation;
d) Mr Gor arbitrarily removing opportunities without reason or explanation and diminishing his current role without explanation;
e) constant insults and belittling expressed to others which brought into question his trustworthiness, honesty, ability and performance;
f) unwarranted and unreasonable blame attributed to himself by Mr Gor for poor fund performance despite not being the relevant fund manager; and
g) despite exhibiting visible distress at work, not being approached or offered support by Mr Gor and instead being slandered and not communicated with or contacted during his absence from work.
[18] Mr Farac stated that he became subject to Mr Gor’s bullying behaviour because he was ‘brave enough and willing to challenge Mr Gor when he thought that there was something that the team could do better or if he thought that Mr Gor was wrong about something’ as he understood that this was part of his job, although he found he would have to deal with retribution from Mr Gor where he undertook this action. 19
[19] Mr Farac stated he came to realise that his career was completely under the control of Mr Gor and that the lack of support from Pendal made him realise he was fighting a battle he could not win. 20 In late September 2019, Mr Farac stated that he decided to take an extended period of personal leave which he states was to improve his mental health and well-being.
[20] Since commencing this period of leave, Mr Farac stated he has not had any direct communication with Mr Gor. 21
[21] In reply, Mr Gor stated that he has not approached Mr Farac since he has been on sick leave because he had learnt of his bullying complaint at the same time and considered it inappropriate to contact him.22
[22] Mr Farac’s evidence also included what he believed was Mr Gor’s bullying conduct to other employees within the team and third parties. This included alleged incidents that occurred in 2011 and 2014. 23
[23] Despite being bullied and the impact on his health, Mr Farac stated that he continued to perform well and has never been subject to any performance management process.
1.2 Orders sought
[24] Mr Farac’s requested remedy is for the Commission to issue orders that address a number of subjects including:
• Pendal to ensure that Mr Gor is not authorised to make any decision having the effect of preventing or materially interfering with Mr Farac’s duties, adversely altering his position or determining his remuneration including bonuses.
• Any determination relating to Mr Farac’s remuneration is only to be made by the Chief Executive Officer and when requested, reasons are to be provided for the determinations that are to be candid and accurate.
• The respondents to provide written apologies.
• Pendal to provide an appropriate duty statement for the position of Portfolio Manager of the G fund and a remuneration proposal setting out the terms and conditions upon which Mr Farac would return to work.
[25] Mr Farac was taken in cross-examination to the medical opinion of his treating General Practitioner Dr Piliotis dated 1 December 2020 who stated that on 29 October 2020, Mr Farac stated to him:
“… that whilst he continued to feel anxious about the issues arising from his workplace, he was willing to trial a return on his current workplace provided the person allegedly previously causing him harassment was appropriately disciplined and given strict guidelines regarding future interactions with the patient.” 24
[26] Mr Farac’s evidence in cross-examination was that he did not remember making this comment to Dr Piliotis. 25
2 The Commission’s jurisdiction
[27] The evidence in this matter must be considered in conjunction with the relevant provisions of the Act.
[28] Section 789FC(1) of the Act provides that a worker who reasonably believes that they have been bullied at work may apply for an order under s.789FF.
[29] In establishing whether bullying at work has occurred, s.789FD is the relevant provision which provides as follows:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) ….
[30] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. 26 It also emphasises the right of management to take reasonable management action in the workplace.27
[31] Section 789FF(1) of the Act establishes the jurisdictional prerequisites for the making of an order to stop bullying. It provides:
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
[32] Senior Counsel for Mr Farac submitted that in applying the statutory prerequires for the Commission to reach a conclusion as to whether bullying has occurred, the first question to be asked is whether any conduct relied upon by Mr Farac constitutes unreasonable behaviour directed to Mr Farac, as set out in s.789(FD)(1) above. 28
[33] Secondly, if the behaviour is unreasonable, does the aggregation of the repeated unreasonable behaviour cause a risk to health and safety. If so, bullying has occurred within the meaning of the Act. 29
[34] Counsel for the respondents contended that the meaning of unreasonable behaviour cannot be separated from the subject matter of the Act, which is bullying at work, and this must be borne in mind in any consideration as to whether particular behaviours are unreasonable. The decision in Mac v Bank of Queensland Ltd,30 was relied upon in support for this proposition 31 where Hatcher VP stated at [89]:
… The subject matter is bullying at work and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of section 789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.
[35] Senior Counsel took issue with the approach of considering whether the specified conduct would generally be recognised as bullying. 32
[36] I accept as Senior Counsel contends that the question to be first asked is whether the specified conduct directed towards the employee is unreasonable. However, in my view where unreasonable behaviour (that is not reasonable management action carried out in a reasonable manner) is found to have occurred that creates a risk to the health and safety of the employee, which is repeated and there is a risk it will continue, it is appropriate for the Commission to take into consideration the intent of the Act’s bullying provisions in determining the nature of any relief that may be awarded.
[37] Submissions made on behalf of the respondents referred to the requirement in s.789FF(1) that the alleged unreasonable behaviour must occur at work stating that some of the alleged behaviour did not occur while Mr Farac was at work as he was on (sick) leave at the time.
[38] In the five member Full Bench decision of Sharon Bowker; Annette Coombe; Stephen Zwart v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others 33the Full Bench stated:
The adoption of the expression ‘while the worker is at work’ was clearly intended to confine the operation of the substantive provisions of Part 6-4B. The legislature could have chosen a more expansive definition, but chose not to do so (eg ‘in his or her employment’ and ‘in the person’s employment’ in FW Act s.342(1); or ‘employment’ in Age Discrimination Act 2004 (Cth) s.18, Disability Discrimination Act 1992 (Cth) s.15, Racial Discrimination Act 1975 (Cth) s.15 and Sex Discrimination Act 1984 (Cth) s.14; or ‘workplace’ in Sex Discrimination Act 1984 (Cth) s.28B).
[39] Further at [56] the Full Bench ‘acknowledge that the meaning we have ascribed to s.789FD may give rise to some arbitrary results’, and that ‘there will undoubtedly be cases which will be more complex’ 34.
[40] In the decision of Mac v Bank of Queensland Ltd, Hatcher VP opined that as many of the instances of alleged bullying behaviour had occurred after the employee went off work because of illness, such behaviour did not occur “at work” as per the requirement in the Act. 35
[41] In this matter, a number of the alleged unreasonable behaviours relied upon by Mr Farac occurred while he was on approved leave which raised the issue of whether the alleged unreasonable behaviour was directed towards Mr Farac while he was at work. Senior Counsel submitted that when the worker is engaged in conduct which touches or affects the employment relationship it meets the requirement of ‘at work’ 36.
[42] Based on the conclusions reached by the Commission in this matter, applying the meaning of ‘at work’ need not be addressed at this point.
[43] In Mac v Bank of Queensland Ltd, Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:
“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”37
[44] As will be seen from the evidence in this matter set out below, many of the examples of conduct included in the list of Hatcher VP are alleged to have constituted the bullying behaviour of Mr Gor.
[45] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry),38 an employee’s genuinely held belief that she was being bullied at work was found to be insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”
[46] In Ms SB, Hampton C observed that:
“whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”39
[47] The Commissioner also relevantly stated40:
“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms this is likely to mean that:
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be “reasonable action” even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous”;
• any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”
[48] Section 389FF(1) then requires two prerequisites to be satisfied before the Commission can exercise its discretion to make an order: 41
1. that the worker has been bullied at work by an individual or group of individuals and,
2. that there is a risk that the worker will continue to be bullied at work by the individual or group.
3 Background to funds structure, roles in the team and management at Pendal
[49] In order to appreciate the nature of Mr Farac’s allegations of unreasonable behaviour it is necessary to understand Mr Farac’s role as a Portfolio Manager and that of Mr Gor his manager as Head of the Bond, Income and Defensive Strategies Boutique, who he alleges undertook the bullying that he seeks orders preventing future bullying against.
[50] Mr Gor stated that he has worked for Pendal for around 11 years, commencing in 2009 when it was known as BT Financial Group. Mr Gor further stated that he has 26 years’ experience in portfolio management and was headhunted from London.42
[51] In June 2010, Mr Gor was appointed Head of Boutique when the current Group CEO, Emilio Gonzalez, made the business decision to merge the three separate fund business units at BT Financial Group into one.43
[52] Mr Gor stated that he was awarded a Bachelor of Science (Economics and Computer Science), first class honours from Salford University in the United Kingdom in 1994, and prior to working at BT, now Pendal, Mr Gor worked in the UK for Aviva Investors as the Lead Fund Manager for Global Aggregate Bond Funds.44
[53] Mr Gor stated that he had extensive experience in funds management and a proven track record managing global bond funds in the UK, and this meant that he was already known to the institutional asset consultants. Mr Gor stated that these consultants are responsible for giving funds a rating, which is important to sell the fund product, and usually, these consultants will follow a fund manager for years before giving a fund rating. Mr Gor stated that as his track record was already known to the consultants, Pendal’s (BT at the time) funds achieved this important rating more easily, and this was a key reason he was brought in from overseas and why BT structured the business around Mr Gor and his skillset.45
[54] Mr Gor stated that he had had a professional mentor for about five years and had attended leadership training courses. 46
[55] It was Mr Gor’s evidence that during the time Mr Farac reported to him, his career progressed through the roles of Analyst, Assistant Portfolio Manager and then Portfolio Manager. Mr Gor stated that the duties Mr Farac would perform day to day on any one fund would depend on what that fund was and what was needed, for example, Mr Farac may be asked to perform analyst type duties when he was the Assistant Portfolio Manager.47
[56] Mr Gor stated that the role of an Analyst is to work under the direction of the Assistant Portfolio Manager and Portfolio Manager, and that Analysts perform specific tasks and have no decision making responsibilities with regard to securities held in the portfolios.48
[57] Mr Gor stated that the role of an Assistant Portfolio Manager is to work under the direction of the Portfolio Manager, to support and manage operational aspects of the portfolios. They can sometimes be given limited discretion to implement trades on the portfolio.49
[58] Mr Gor stated that the role of a Portfolio Manager is to manage the portfolio, subject to the Lead Portfolio Manager’s oversight where appropriate. The Portfolio Managers are responsible for managing the portfolios to hit performance targets while adhering to the risk-reward requirements.50
[59] During his cross-examination, Mr Gor’s evidence was that a Portfolio Manager does not necessarily manage a portfolio, and that ‘portfolio manager’ is more of a marketing title.
[60] With regard to whether Mr Farac was a Portfolio Manager, Mr Gor provided the following responses in his oral evidence:
PN1952 Mr Gor, when you appointed Mr Farac portfolio manager in June 2012, to what portfolio did you appoint him to manage?---No portfolio
PN1953 So you appointed him a portfolio manager without portfolio?---A portfolio manager and less assistant portfolio manager are largely marketing titles. We have them in the team so when we present ourselves to clients, et cetera, we have the appropriate level. There is very limited linkage or correlation between portfolio manager on your card and whether you run portfolios. That's how it works in the industry.
PN1965 … His job title was portfolio manager but that doesn't mean that he managed portfolios. Job analyst, assistant portfolio manager or portfolio manager on your business card is a title largely for marketing reasons.
PN1966 Well, you've got an employment contract here that says he's been changed title from assistant portfolio manager to portfolio manager, effective immediately. So what is anyone to make of that?---That's when we changed the title. That's the HR that we had to go through when we changed the title. But you can have - for example, it's industry slang. You don't have to be - if you're a portfolio manager, it doesn't mean you have to be a lead on a portfolio. For example, Black Rock, 90 per cent of their portfolio managers don't manage portfolios.
PN1967 … . So he's got the title of portfolio manager but he does not manage any portfolios, is that what you say?---At that time George Vishay was portfolio manager, managed no portfolio either.
PN1968…. He has a title of portfolio manager, which you've given to him?---Yes.
PN1969 You've increased his title from assistant to portfolio manager. It's simply a change in title. Is there any other reason for doing that?---No, it's purely just a change in title.
PN1970 For what purpose?---For marketing reasons - for when we were building a team, we were progressing people through, we were hiring new people into the team, the team was growing.
PN1971, I don't know, is Mr Farac - he doesn't understand that he - is he meant to understand he's not a portfolio manager?---We work together very closely - the whole team did.
PN1972 That change of title, does he have an increase in remuneration?---I honestly can't remember. It was eight years ago.
PN1973 Does the assistant portfolio manager get less than a portfolio manager?---No, but it doesn't mean that a portfolio manager gets more than an assistant portfolio manager so he might have gone up in remuneration, he might not. I honestly can't remember, I'm sorry. 51
[61] Mr Gor further explained during his cross examination the purpose of job titles:
PN2190 Okay, let me just clarify so analyst, portfolio manager and assistant portfolio manager are job titles. They are things that go on a business card. Deputy portfolio manager, lead portfolio manager are operational titles. They're roles you hold in relation to a fund. They're not actually job titles. So a person could be a portfolio manager on their business card but they're a deputy portfolio manager on one fund, a lead portfolio manager on another fund, an assistant portfolio manager. They're very different. One is a marketing title; one is operational title. The operational title changes on which fund we're talking about and that's where the confusion arises”. 52
[62] Mr Gor explained that the title of Portfolio Manager given to Mr Farac was for marketing and client purposes and that the lead manager has ultimate authority in respect to portfolio management. In an operational sense, there is no Portfolio Manager, only a lead or deputy/assistant Portfolio Manager. With respect to portfolios allocated to Mr Farac, Mr Gor was the lead manager. The role of the Portfolio Manager is to manage the portfolio on a day-to-day basis, subject to the Lead Portfolio Manager’s oversight where appropriate.
[63] Mr Gor advised that he did not believe that a position description existed for the role occupied by Mr Farac. 53
[64] As the Lead Portfolio Manager, Mr Gor stated that he was constantly educating Portfolio Managers. When placing a trade in a portfolio, he wasn’t intervening in a portfolio as it was his responsibility and there was an expectation to take an active role in portfolio management by conducting trades. When doing so he may not have immediately told the Portfolio Manager but would have done so at a later time.
[65] Mr Gor stated that when he was appointed to lead the team, a strategic decision was made by Mr Gonzalez and Pendal’s Head of Sales to present him as the face of the Boutique because of his experience and track record. Track record of performance is key to investors, and the business rationale in presenting Mr Gor as the face of the Boutique was to leverage his rating and secure early investment, in larger amounts, into BT’s new funds, which in themselves did not have any track record.54
[66] Mr Gor stated that he was named Lead Portfolio Manager on all BT (and later Pendal) funds within the Boutique. The Portfolio Managers reporting to him were allocated day-to-day responsibility for the funds, meaning they would recommend trades to Mr Gor and support him in managing the portfolios. Mr Gor stated that some Portfolio Managers are afforded more or less discretion, according to experience and the requirements of the portfolios, however Mr Gor retained ultimate control, authority to trade and risk responsibility for those funds. Mr Gor further stated that as Lead Portfolio Manager, it was his reputation on the line if performance of the fund was down.55
[67] It was Mr Gor’s evidence that this strategy continued until 2019 when Mr Brandweiner suggested to Mr Gor that key person risk across the Pendal funds needed to be managed by naming other Portfolio Managers as Lead Portfolio Managers on some of the funds, and this occurred at a time when the funds and the Boutique were well established and the funds each had a track record.56
[68] In describing his own role, Mr Gor stated he was responsible for $22 billion in funds 57 and his working day was occupied with up to 10 meetings, receiving up to five presentations, sending 100 emails and taking 100s of phone calls,58 leaving him little time for other tasks.
[69] While Mr Gor was clear on the role Mr Farac had, having been given the title of Portfolio Manager, it was clear from the evidence of Mr Farac that he did not share Mr Gor’s understanding of his role which was not helped by the lack of any position description for his position.
4 Examples of bullying conduct and findings
[70] Mr Farac’s witness statement contained details of the conduct of Mr Gor and Pendal which was said to amount to bullying. The unreasonable behaviour said to be directed towards Mr Farac by Mr Gor begins with an event in 2012 and continues up until Mr Farac’s ongoing absence from the workplace commencing in late 2019.
[71] Mr Gor stated that many of the allegations are factually inaccurate, and the remaining allegations have been taken out of context. Mr Gor noted that many of the allegations made by Mr Farac did not contain specific times and dates and are over a long period of time, making it difficult to respond to.59
[72] A summary of these incidents and allegations and the Commission’s findings which takes into account the evidence of all witnesses are dealt with as follows, but do not address every issue raised.
4.1 Newsletter incident
[73] Mr Farac stated that at the request of Mr Gor he was often responsible for preparing and drafting a newsletter on behalf of the team which was distributed externally on a monthly basis. Mr Farac spent a significant amount of time drafting and preparing the newsletter with limited if any involvement from Mr Gor. Mr Farac stated that the newsletter became quite successful and gained a large readership. While Mr Farac took prime responsibility for the preparation of the newsletter, Mr Gor was cited as the author of the newsletter, at Mr Gor’s request.
[74] When asked by staff who had prepared the newsletter, Mr Farac stated he always said that he was the author including when he was approached by Mr Daniel Campbell, Head of Investment Oversight. In around 2012, Mr Campbell complimented him on the newsletter and asked who had written it, to which Mr Farac replied that he was the author. Upon learning of this, Mr Gor shouted at him for divulging that Mr Gor was not the author and further stated to Mr Farac that it was unlikely that anyone would believe him. Mr Farac stated that Mr Gor made these comments when no other employees were present. 60
[75] In relation to the alleged “newsletter incident”, Mr Gor states that commencing from late 2011, approximately once a month the team would release a Newsletter externally for clients and prospects, globally. Mr Gor stated that he had responsibility for the preparation and release of the newsletter as Head of Boutique. At the time of the alleged “newsletter incident”, the newsletter was in its infancy but quickly received good press recognition.
[76] Mr Gor stated that his name was on the newsletter for the same reason that his name was on the funds at the time, and that it is standard practice within the industry for newsletters to be published under the name of the relevant head of the fund or the Boutique.61
[77] Mr Gor stated that the preparation of the newsletter was a collaborative effort, and the usual process involved himself proposing the ideas and strategy for each newsletter, which he would then brief Mr Farac on. Mr Gor’s evidence was that Mr Farac never solely came up with the ideas or prepared the newsletters with limited involvement from Mr Gor as alleged by Mr Farac. There were significant differences between the draft newsletter and the final version that was sent out, and it would take a day for Mr Gor to edit and finalise the newsletter that Mr Farac provided him with. Mr Gor stated it was not appropriate at that stage of Mr Farac’s career, and based on industry practice, to name Mr Farac in the newsletter. The newsletter went out under his name. Further Mr Farac’s experience at that time did not equip him to write all sections of the newsletter.62
[78] While Mr Farac wrote some of the content, Mr Farac did not write the entire contents which was subject to Mr Gor’s editing. 63
[79] Mr Gor recalled that he had a conversation with Mr Farac about the newsletter but does not remember what words he spoke as it was eight years ago. Mr Gor recalled the nature of the interaction and denies that he shouted or scolded Mr Farac and stated that he remained professional in his communication.64
[80] Mr Gor stated that it was wrong for Mr Farac to assert that he drafted the newsletter, and this concerned Mr Gor because he believed that Mr Farac did not understand the level of his ability or responsibility in his role. As part of his role as Mr Farac’s manager he recalled raising a concern with Mr Farac about recognising the limits of his responsibilities, and stated that he was happy to recognise Mr Farac’s contribution to the process.65
[81] Mr Farac stated in his reply evidence that when Mr Gor shouted at him for divulging that he was the author of the newsletter, Mr Gor said words to the effect of:
“You are not to tell anyone that you were the author of the newsletter, and either way they won’t believe you.”
[82] Mr Farac stated that he said these words in an aggressive tone, and that Mr Gor was scowling at him and using an extremely loud voice, which, whilst not quite screaming, was definitely a shout and his body language was tensed and menacing.66
Finding
As this event occurred in 2012, recollections of exactly what was said between the relevant parties cannot be determined with any certainty. I accept that there was a dispute over the claimed authorship of the newsletter with Mr Farac wishing to take credit for its contents to be known as the author. Whether Mr Farac was responsible for the bulk or entirety of the newsletters’ articles, Mr Gor’s decision as the head of the Boutique to be seen publicly as the author of the newsletter was a determination he was entitled to make. Mr Gor explained the business reasons for this decision which cannot be described as unreasonable behaviour. While understandable that Mr Farac would have liked to have been given credit as the author of the newsletter it was a management decision for Mr Gor to make.
As Mr Farac states, the alleged offending comments of speaking in an aggressive tone were made in the absence of other persons, leaving the Commission with the task of determining whether eight years ago Mr Gor spoke to Mr Farac in such a manner, which in any event Mr Gor denies occurred. Other than the agreed position that there was a discussion about the newsletter and in the absence of any corroboration concerning the tone of the conversation, or any complaint at the time, the Commission cannot be satisfied to the requisite degree that Mr Gor spoke to Mr Farac in the manner alleged.
4.2 Offer of assistance
[83] While not recalling the specific dates, Mr Farac stated that in mid-2012 to early 2013, Mr Gor suffered a devastating family loss (the death of a child), after which he observed a noticeable shift in his behaviour in becoming overly stressed and abrasive at work. Mr Farac stated that Mr Gor raised his voice about his performance on a daily basis even though there was no reasonable basis to do so. For example, if a portfolio did not perform as expected, or if there were lost opportunities for trades, the blame would always be attributed to Mr Farac.
[84] This behaviour was worse on days when performance of the portfolios was down and other staff were fearful of speaking to Mr Gor on these occasions.67 As Mr Gor was experiencing extremely difficult personal circumstances Mr Farac suggested to Mr Gor that he take some time off from work to be with his wife and that he would assist in managing the portfolios.
[85] Mr Farac viewed his suggestion to Mr Gor as a constructive proposal made purely out of empathy for Mr Gor’s situation. In response to this suggestion, Mr Farac states that Mr Gor reprimanded him and shouted words to the effect of ‘why would I do that, are you trying to take the funds and push me out of the way, are you’. This was said in the absence of any other employees.
[86] Mr Gor stated that he could not recall this interaction. Mr Gor stated that this period was an incredibly stressful time in his personal life, due to a number of miscarriages his wife suffered and the death of his first child. Mr Gor denied that he yelled at Mr Farac during any interaction around that time, but accepted that he was emotional during that period and that would have been apparent at work,68 but he had no recollection of a meeting with Mr Farac accusing him of using the opportunity to take Mr Gor’s portfolios.
[87] Mr Gor stated that it would make no sense for him to make the statement to Mr Farac that Mr Farac was trying to push him out of the business, as Mr Farac was still relatively junior and did not have the experience to take over the funds and push him out of the way. Further it would not have occurred to Mr Gor that it was possible for Mr Farac to push him out of the way. 69
[88] Mr Gor stated that Mr Farac was fully aware of his personal circumstances and would have provided emotional support at the time, for which Mr Gor was very grateful. Mr Gor stated that as a result, he would not have responded as alleged by Mr Farac.70
[89] Mr Farac’s evidence was that he was often a representative for Mr Gor internally with stakeholders for operational type issues and externally at events as a representative of Pendal, and no other members of the team were asked by Mr Gor to perform these tasks. Mr Farac stated that he was involved in the salary base and bonus discussions for members of their team from 2011-2012, and no other members of the team, other than Mr Gor were involved in these discussions.71
[90] Mr Gor states that Mr Farac’s description of himself as second in command was a self-appointed title and was not official or initiated by him.72
Finding
These are also events said to have occurred in the absence of other persons and also allegedly took place around eight years ago, upon which no complaint was raised at the time. Accepting that the events occurred as stated by Mr Farac, it is acknowledged that during this period Mr Gor was experiencing difficult personal circumstances with the loss of a child. If Mr Gor responded in a defensive fashion to Mr Farac’s suggestion that he take some time off work, given the circumstances it appears it would have been an emotional response in trying circumstances. In view of the circumstances at the time I do not find that Mr Gor’s response including becoming overly stressed and abrasive at work was unreasonable should it have occurred as alleged.
4.3 The A Fund
[91] Around March 2013, Mr Farac stated that he was provided with the A fund which was the first full portfolio that he managed which he later handed to Mr Hext in 2017. While the A fund exceeded the outperformance target for the client under his management, Mr Farac said that Mr Gor refused to refer to the A fund in sales pitches for clients who were looking for similar portfolios. This made him feel that Mr Gor was reluctant to refer to his hard work with clients so that he would not receive any praise and external recognition. 73
[92] Mr Gor disputed that Mr Farac was provided the A fund. Mr Gor stated that it was himself who was the Lead Portfolio Manager, or key person on that portfolio, and that there were strict parameters around changing that in Schedule 8 of the agreement. To change the name of the key person would require the client’s agreement, and the client would have the option to terminate the agreement on the basis that the key person has changed. Mr Gor stated that it was not accurate, nor would it have been practical or feasible to name Mr Farac on this fund.74
[93] Mr Gor stated that Mr Farac was never the Portfolio Manager on this fund, however, Mr Farac was involved in the day-to-day running of the fund as Deputy Portfolio Manager, with Mr Gor’s oversight. Mr Gor stated that he personally knew the client and pitched this fund to the client, and that there was an expectation, as reflected in the agreement, that Mr Gor would personally run the fund, which he did.75
[94] Further, Mr Gor stated that not referring to Mr Farac in pitches was his practice and was standard in the industry. Mr Gor’s evidence was that Mr Farac, with only three years in the team at the time did not have sufficient experience or input on the fund to be named or referred to in pitches. Naming the members of the team that support the Portfolio Manager is not how funds are pitched by Pendal or in the industry.76
Finding
This event concerns Mr Farac’s management of the A fund commencing in 2013 which Mr Farac states was the first full portfolio he managed from inception. Mr Farac was of the belief that Mr Gor was reluctant to refer to his hard work with clients so that he would not receive any praise and external recognition. Mr Farac referred to having two conversations in 2015 with Mr Gor where Mr Gor did not engage or reciprocate in a meaningful way. 77
On behalf of Mr Farac, it is said the Mr Gor’s evidence in cross-examination was that Mr Farac had day to day management of the fund and that Mr Gor contradicted himself over Mr Farac’s job title in respect of the fund.
Mr Gor’s evidence regarding job tiles was confusing and at times contradictory under cross-examination. However, the allegation of unreasonable behaviour made by Mr Farac concerns not receiving praise or external recognition limiting his ability to use the fund as a career record for his performance and therefore limiting his career opportunities. 78
The evidence before the Commission with regard to this issue falls well short of demonstrating that Mr Gor’s management towards Mr Farac regarding this fund was unreasonable behaviour.
4.4 Arbitrarily providing and removing responsibility of B fund portfolios
[95] In March 2015, Mr Farac stated that there was an extreme amount of volatility in bond yields as the German bond market experienced a shock. During this period, he states that Mr Gor assumed a considerable amount of risk in the B fund portfolios. The flagship B fund underperformed in that one month by an entire year’s performance target.79 Mr Farac stated that Mr Gor had what he described as a ‘breakdown’ in around April 2015 and was visibly distressed and withdrawn.
[96] In March 2015, Mr Farac stated that Mr Gor provided him with control and responsibility for the B fund portfolios which were heavily underperforming stating that he did not have time to manage the B fund portfolios and the global funds. Mr Farac’s evidence was that under his management the B fund portfolios began to yield positive results. After successfully recovering the performance of the funds, he discovered that in around June 2015 Mr Gor had begun trading on the B fund portfolios and purported to reclaim responsibility for them. Mr Gor did this without any communication and contrary to the responsibility that Mr Gor had assigned to him in March 2015. 80
[97] Mr Farac stated that Mr Gor’s coping mechanism for managing stress was to absolve himself of any responsibility with underperforming portfolios, but once portfolios began performing positively, he would arbitrarily resume responsibility. In doing so, he never provided any explanation or recognised team members for their efforts. Successes were generally his and failures attributed to others.81 Mr Farac stated that Mr Gor refused to attend client meetings to explain poor portfolio performance in the 2017 to 2019 period which affected Ms Xie Patrick, a Portfolio Manager most in that time. 82
[98] Mr Farac complained that none of the portfolios provided to him in 2015 had his name listed as the official Portfolio Manager which upset him and made him feel undervalued.
[99] Mr Gor denied that Mr Farac was ever handed responsibility for the funds in the B fund’s portfolio, of which the client A fund was one. Mr Gor stated that as responsibility was never handed to Mr Farac, Mr Gor could not have taken it back.83
[100] Mr Gor stated that he could not recall speaking the words alleged in Mr Farac’s statement, “I just do not have enough time to manage [the B fund portfolios] and the global funds,” but stated that any words to that effect have been taken out of context.
[101] At the time, Mr Gor stated that he was named Lead Portfolio Manager on every fund and performed all of the day-to-day management for the Boutique. Mr Gor’s evidence was that he would have asked Mr Farac for day-to-day assistance with the running of the funds, and as Deputy Portfolio Manager on the fund, it was part of Mr Farac’s role to assist where needed and as directed by Mr Gor. Mr Gor stated there was never any change in formal responsibility for the fund as required by the fund’s terms.84
[102] Mr Gor categorically denied the assertions made by Mr Farac in relation to the alleged refusal to attend client meetings. Mr Gor stated that he continued to attend meetings and explain any performance as necessary.85
Finding
In this allegation Mr Farac is concerned that after having assumed responsibility for the B fund he discovered that Mr Gor had again begun trading on the B Fund without consultation with himself which was upsetting and confusing. 86 Mr Gor disputes the background to this issue as set out by Mr Farac or that he had relinquished formal responsibility of the fund to Mr Farac and then resumed control by trading of the Fund.
There was no evidence other than Mr Farac’s testimony as to whether the events occurred as alleged. With Mr Gor named as the Lead Portfolio Manager on the fund he was ultimately responsible for its performance with the ability to undertake day to day management of the fund including to delegate tasks where considered necessary. Mr Gor’s communication with Mr Farac about his role with the fund may have been lacking but his behaviour towards Mr Farac cannot be described as unreasonable as there was a legitimate right for Mr Gor to take the action he did.
4.5 Adverse remarks and slandering
[103] Mr Farac stated that Mr Gor’s unreasonable and inappropriate behaviour towards him increased in early 2016, when flagship portfolios started to experience poor performance with a particularly bad month in March 2016. During this period, Mr Gor repeated his daily abusive attacks on him and other staff members. He felt like he was a punching bag for Mr Gor when Mr Gor was having a bad day.87
[104] In his reply statement, Mr Farac further stated that when he said Mr Gor was consistently aggressive and abusive to him between the period 2012 and 2015, he meant that:
a. Mr Gor would frequently speak to him in a voice that was so loud that it was shouting;
b. When Mr Gor was shouting at him, he would from time to time use swear words;
c. Mr Gor would treat him this way in front of his colleagues;
d. Things Mr Gor would say, included:
i. “what the f**k happened to that trade last night?”;
ii. “why the f**k didn’t you tell me to get out of the trade last night”;
e. when Mr Gor spoke to him, he would speak in a way that conveyed anger; and
f. Mr Gor had a scowling and annoyed look on his face.
[105] Mr Farac stated that the above behaviour occurred regularly, meaning every few days for the entire duration of the period.88
[106] After one of these outbursts by Mr Gor, Mr Farac states that Mr Gor left his desk and Mr George Bishay (Portfolio Manager within the Bond, Income and Defensive Strategies team) came over to Mr Farac while he was in the desk pod and said words to the effect of:
“I don’t know how you put up with being his punching bag in the mornings.”89
[107] Mr Farac stated that the conduct highlighted above had a significant impact on his mental health and increased his anxiety as he often felt absorbed by Mr Gor’s conduct, and that it impacted on his ability to enjoy, feel comfortable and supported in his role at Pendal.90
[108] During the fourth quarter of 2015 and the first quarter of 2016, the poor performance of the portfolios was largely due to a prediction that the decline of the global economy towards recession would continue. Mr Farac stated that the portfolios he was running experienced some losses, but they were nowhere near as severe as the losses of the flagship portfolios.
[109] Mr Farac stated that he believed that the risk being run in Mr Gor’s portfolios was too high, but he did not feel confident about expressing this view to Mr Gor as he was worried about the abusive treatment he would receive if he was incorrect in his recommendations. 91
[110] In March 2016, Mr Gor stated to Mr Farac that the poor performance in March 2016 was Mr Farac’s fault for advising Mr Gor ‘to keep on the European credit trades, which by far had the largest effect on performance’. Mr Farac stated this confirmed that Mr Gor was using him as a ‘scapegoat' for any underperformance issues that arose within portfolios. 92
[111] Mr Farac stated that he felt increasingly uncomfortable with the misrepresentations and untruths that Mr Gor was giving to explain performance both in client meetings and to upper management in the quarterly investment review meetings. Mr Farac stated that Mr Gor’s inability and refusal to be honest about the reasons for losses was particularly divisive between them. 93
[112] In response to the allegations of adverse remarks and slandering, Mr Gor stated that he can recall that the flagship C portfolio did perform poorly in 2016, largely because of a view taken by the team on what the European Central Bank was going to do, which was incorrect. As a result, this portfolio lost a substantial amount of money.94
[113] Mr Gor stated that at the time, Mr Farac’s responsibilities on this fund included performing an analyst function, which involved conducting research and providing advice to the team on trades within the European bond markets. Mr Farac recommended a number of trades based on research he conducted, which Mr Gor implemented based on Mr Farac’s analysis, which turned out to be incorrect and the portfolio consequently suffered losses.95
[114] Mr Gor provided context by stating that making calls that turn out wrong is inevitable in the business, but the skill in successful investment management is being right more often than wrong, and when you are wrong, accepting that and closing out losses swiftly. 96
[115] Mr Gor stated that Mr Farac did not demonstrate a skill in recognising losses and this had the knock-on effect of meaning the extent of those losses were not effectively mitigated. Mr Gor stated that Mr Farac stuck to his position and took the view that everyone else around him was wrong.97
[116] Mr Gor stated that if an analyst in his team made the wrong call, he would discuss this with them, as he did with Mr Farac. Mr Gor asserted that it was a reasonable action to take as a manager, and that he did not speak in an aggressive manner or shout as suggested in Mr Farac’s statement.98
[117] Mr Gor stated that discussing reasons for a particular trade or decision would occur in the regular team meetings and informally during team discussions, and was something that occurred between the team themselves during the working day, not just something said by him to other team members.
[118] Mr Gor’s evidence was that he observed Mr Farac saying to Mr Bishay in front of the team, words to the effect of:
“George, I see you lost money on that trade. What was your thinking on that?”99
[119] Mr Farac, however, disagreed that he ever said to Mr Bishay, words to this effect and that he would have remembered if he had said those words. 100
[120] Mr Gor stated that the responsibility for each trade and each person’s performance was clearly visible to the team as this was listed in a profit and loss trade sheet, which was consistently available to the team and updated. The sheet displayed every trade made on a fund, which each member of the team could see in detail, which is standard practice for asset managers in the industry. Mr Gor denied singling out Mr Farac (or any of his team) as ‘scapegoats’ for fund performance. Mr Gor stated that each team member is accountable for the role they play in the trade to all others in the team and therefore the overall performance.101
[121] Mr Gor disputed Mr Farac’s assertion that he was happy to receive constructive feedback and stated that this was not his perception of Mr Farac. Mr Gor also denied misleading a client about performance as alleged by Mr Farac.102
[122] Whilst Mr Gor acknowledged that internally each member of the team was accountable for their performance, externally, Mr Gor held the overall responsibility for fund performance with the client. Mr Gor denied ever avoiding accepting this responsibility. When Mr Farac or any other team member attended client meetings Mr Gor expected them to be able to provide explanations if they were the relevant team member that was responsible for a particular performance aspect, but individual team members were never blamed in front of a client. 103
[123] Mr Gor stated that Mr Farac was not expected to provide explanations of poor performance without Mr Gor’s support and without Mr Gor taking overall responsibility for the performance. Mr Gor observed that Mr Farac found it uncomfortable giving information to a client about poor performance, but noted that this is a necessary part of managing clients and a skill that must be learned in order to progress in the industry.104
Finding
In cross-examination, Mr Farac stated that the shouting and aggressive behaviour was more of a feature of the early years than it was the later and that ‘silent treatment’ was ‘far more damaging than someone shouting at you, which was far more frequent in the later years’. 105
In respect of not reporting the alleged shouting, belittling or insulting comments when asked why he had never made any complaint to Mr Brandweiner or Ms Martin, Mr Farac stated that he did not feel he needed to. 106
When an allegation of being aggressive to Mr Farac was put to Mr Gor in cross-examination, the following exchange occurred:
“You appeared very angry, your voice was loud?---I'd be surprised; I don't shout, I don't get angry. Well, I get angry, but I don't shout at people. That's not my way.
You conducted the conversation in a very aggressive manner, didn't you?---I'd be very surprised.” 107
Much of what Mr Farac relies upon as shouting and aggressive behaviour is alleged to have occurred some years before he raised his bullying complaint, and simply cannot be verified as it was not corroborated by any independent witness. Mr Hext who commenced in 2017, worked with both Mr Farac and Mr Gor and stated in cross-examination that Mr Gor would get annoyed from time to time 108 but he did not witness Mr Gor becoming angry, aggressive or shout.109
Mr Farac stated that Mr Gor’s behaviour in more recent times morphed into ‘silent treatment’.
The Commission has no difficulty in concluding that at times the verbal exchanges between Mr Farac and Mr Gor were robust due to the nature of their respective roles and the expectation and pressure to achieve positive outcomes in the various funds under management in their portfolios. However, there is no evidence that Mr Farac was singled out from other employees, although Mr Gor’s evidence was that Mr Farac ‘doggedly stuck to his position even when it was clear there was a loss and took the view everyone else around him was wrong’. 110
The Commission, on the evidence, is unable to find that Mr Gor engaged in unreasonable behaviour by being consistently aggressive and abusive towards Mr Farac.
4.6 The D Fund
[124] In around March 2016, Mr Gor won a large allocation from the D fund, which became the biggest client for the team and one of the biggest for Pendal. The stress associated with the D fund was said by Mr Farac to have had an adverse impact on Mr Gor’s behaviour and Mr Farac stated that he was the recipient of his erratic and abusive attacks. 111
[125] Mr Farac accepted that Mr Gor had the relationship with the D fund although he also had relationship with persons at the D fund, 112 but just wanted to have fair and reasonable controls when managing the fund.113 Mr Farac stated that on occasions where he disagreed with Mr Gor’s control measures it was because they were unreasonable.114
[126] Mr Farac stated that at around December 2016, Mr Gor made comments that he could lose his job and be unable to support the purchase of his residence and attributed blame to him for the positioning of his portfolios although he had no direct control over trading in those portfolios. 115 Mr Farac states that Mr Gor became agitated and irrational and appeared to second guess the decisions he had made about his portfolios. He was often extremely short and terse in his communication particularly when he disagreed with Mr Farac’s views.
[127] Mr Gor denied that he said words to the effect that Mr Farac could lose his job and would be unable to support the purchase of his house.116
[128] Mr Gor also denied blaming the position of the portfolios on Mr Farac. Mr Gor stated that he may have asked Mr Farac about certain trades but cannot recall doing so specifically. Any query of that nature would have been entirely reasonable because Mr Farac’s job at that time was to recommend trades.117
[129] In response to the contents of Annexure B of Mr Farac’s 27 October 2020 statement, which was a transcript of a Google Hangouts conversation about the performance of a portfolio, Mr Gor stated that the conversation was a professional exchange about running stops over a particular portfolio, and that he was not in a state of panic, nor was he second guessing himself. Mr Gor stated this conversation was about a stop loss (which is a pre-determined price point at which the trade will automatically close out) that should have been run over the portfolio at the time, which Mr Farac did not like to do, but which Mr Gor was suggesting should have been done.
[130] Mr Gor stated that Mr Farac did not like running stops as he did not have good skills in recognising his own losses, and that in this particular event, Mr Farac inappropriately dragged the exchange into a personal arena.118
[131] In response to Annexure C of Mr Farac’s 27 October 2020 statement, a screenshot of an internal messaging system conversation, Mr Gor denied communicating in a terse manner. Mr Gor stated this exchange was on ‘Slack’, Pendal’s internal messaging system, which is akin to text message, and does not lend itself to long exchanges with any formalities.119
[132] Regarding this exchange, Mr Gor stated that this refers to a standard process that they have in place within the team to ensure the funds always have a person responsible for that fund at any one time in case Mr Gor is unavailable for long periods. Mr Gor was going to be unavailable from 8pm until the following day, and the processes in place required Mr Gor to hand over the book of funds temporarily in case anything material happened in the markets overnight. The message was to confirm to Mr Farac that responsibility had been passed to him for the evening on a temporary basis, which would then be passed back to him. Mr Gor stated that Mr Farac was not expected to actively do anything over the longer term, and that Mr Farac understood this. Mr Gor stated that Mr Farac’s response in this exchange was inappropriate, and that he made some recent decisions not to place trades that were suggested by Mr Farac, and that Mr Farac took this personally.120
Finding
The Commission is not satisfied that taking into account the evidence of the 2016 interactions given by both Mr Farac and Mr Gor, particularly where they are supported by annexures B and C of Mr Farac’s statement of 27 October 2020, that it can draw a conclusion that Mr Gor’s behaviour concerning these events was unreasonable. The conversations appear to be within the realm of what would be expected to occur between a manager and his direct report.
4.7 Christmas 2016 E Fund Review
[133] In around December 2016, Mr Farac stated that he travelled to Melbourne with Mr Gor for a two-day due diligence review of the E fund. Mr Farac’s evidence was that Mr Gor had said on a number of occasions that it was largely a box ticking exercise, having already won the allocation which as a consequence meant Mr Gor was largely unprepared for the review. As a result, Mr Farac states he took the lead in the review with the E fund. Whilst initially complimentary of his performance, including sending a text message stating that he had performed well during the E fund review, Mr Farac states that the event was a turning point in the relationship with a substantial further worsening in their relationship over the following six months. 121
[134] Mr Gor stated that he was always prepared for client meetings and denied that he was underprepared for the E fund review. Mr Gor provided emails and preparation notes of 70 pages that he reviewed one week prior to the meeting. Mr Gor further denied that he made any disparaging comments about the client and agreed that Mr Farac did a good job at the E fund review meeting. Mr Gor stated that he was not in any way concerned or upset about Mr Farac’s involvement in the meeting and denied that this was the turning point of his relationship with Mr Farac.122
Finding
As this event, which also occurred in 2016, is not relied on by Mr Farac as a demonstration of bullying behaviour but as evidence of the breakdown in the relationship between Mr Farac and Mr Gor, 123 the Commission is not required to make any determination regarding its unreasonableness.
4.8 Removal from the B fund portfolios
[135] Mr Farac stated that around late December 2016, he had a meeting with Mr Gor who advised that he would be hiring two new Portfolio Managers, Ms Xie Patrick and Mr Hext in response to recent fund underperformance and to reduce the workload across the team. As a result, Mr Farac was required to shift the management of the B fund portfolios to Mr Hext which came as a shock to him as he had assumed responsibility for them in around March 2015. All of the portfolios were performing well and, in some cases, exceeding outperformance targets. During this meeting, Mr Farac stated that Mr Gor said that he needed someone to concentrate on growing the said business which Mr Hext could do given his prior experience and while he had been doing well on the B funds, he would eventually get bored of managing these funds and his focus and attention should be geared towards the global macro funds. Mr Farac states that no other staff members were present at this discussion. 124
[136] Mr Farac states that he was excited to have new peers join the team and saw this as a way to expand his experience which had been limited to just learning under Mr Gor. Mr Farac stated that he agreed to the proposal without complaint or further question because he was appreciative that Mr Gor was laying the foundation for him towards the C fund portfolios which would place him in a position to eventually take over this role. 125 Mr Farac stated in cross-examination that at this point in time, ‘he had immense trust for Mr Gor and didn’t consider the reallocation of the fund as bullying.126
[137] Mr Farac stated in his reply statement that when he was referring to his removal from the B fund portfolios in his first statement, he was referring to the group of portfolios that he was responsible for (which were B fund portfolios) being reallocated to Mr Hext.
[138] Mr Farac stated that he was not consulted about this decision before his meeting with Mr Gor and that prior to this time, the B fund portfolios were performing well, and without complaint from his supervisor. Mr Farac stated that at the time of the meeting, he had no significant interest rate portfolios to manage once Mr Gor had given his B fund portfolios to Mr Hext. Mr Farac further stated that he assumed Mr Gor was aware of this at the time of the meeting and that is why Mr Gor told him he would be taking over the C fund portfolios.127
[139] Mr Farac stated that Mr Gor promised Mr Farac he would take over responsibility of the C fund portfolio and in a meeting on or about February 2017 said words to the effect of, “you will take over the global funds and I will step away from day-to-day management. We will sort out the official hand-over to you when I get back.” Mr Farac stated that Mr Gor never indicated that his management of the C fund would be a temporary arrangement.128
[140] Mr Farac stated that he trusted Mr Gor would deliver on his promise that he would work on the global macro funds after ceasing working on the B funds. 129 Mr Farac stated he was no longer managing any portfolio directly and that the transition of the B funds’ portfolios to Mr Hext occurred in February 2017. Mr Farac states that this was not matched with similar permanent action by Mr Gor to progress any future opportunities for him in the global macro funds. Mr Farac stated that it became apparent to him that Mr Gor was progressively and arbitrarily taking away his responsibilities without any explanation, directly affecting his career.130
[141] In response, Mr Gor provided his explanation to this change in Mr Farac’s responsibilities. Mr Gor stated that he initiated the hiring of two additional portfolio managers in 2016, to alleviate the workload pressure on the team and to address performance concerns on some of the funds.
[142] Pendal had won the client’s D fund mandate and the overall assets under management were approximately $19 billion at the time. The team consisted of 13 individuals, and the workload was too great for a team of that size given the recent increase in assets.131 Mr Gor stated that Ms Xie Patrick’s first role was to evolve the defensive strategic approach the boutique had adopted up until that point in time, and Mr Hext was hired because of his extensive experience in the B fund market of more than 30 years.
[143] This change was not a punitive measure taken against Mr Farac. Mr Gor was the lead Portfolio Manager on the B fund and Mr Hext was not named on the portfolio at the time despite his extensive experience outweighing his own. Mr Hext was allocated to the fund to assist Mr Gor on the portfolio on a day-to-day basis as Mr Farac had previously done. 132
[144] Mr Gor made a business decision to reallocate responsibilities in the team to best utilise the experience, skills and strengths of each team member, including Mr Hext and Mr Farac. Mr Gor remained the Lead Portfolio Manager on the B fund portfolio, and Mr Hext was not named on the portfolio at that time.133
[145] Mr Gor was of the opinion that telling Mr Farac that Mr Hext and Ms Patrick had been appointed as Portfolio Managers initiated the breakdown in the relationship between Mr Farac and himself. Mr Hext was employed to undertake the role of managing the B fund, and as a result, Mr Farac was moved to managing the C fund.
Finding
The decision of Mr Gor to employ two new Portfolio Managers based on alleviating the workload pressure on the team and to address performance concerns on some of the funds was a legitimate exercise of his role as the Boutique Head. Mr Farac states he agreed to the change without complaint as he was appreciative of Mr Gor laying the foundation for him to move towards the C fund portfolios which would place him in good position to eventually take over the role. 134
The management action of Mr Gor in this instance cannot be viewed as unreasonable when it was undertaken for the purposes on improving the business and was accepted by Mr Farac without complaint. Mr Farac’s complaint is that he was no longer managing any portfolio directly and had lost the opportunity to grow a career in managing B fund interest rate portfolios that he had worked towards building for nearly three years. While this may have been Mr Farac’s perception of the outcome of Mr Gor’s actions, the fact that his career progression was not taking the course he desired (which is not an uncommon scenario in a workplace) while unfortunate for Mr Farac, does not result in Mr Gor’s action being unreasonable.
4.9 Management of the C fund portfolio
[146] During February 2017, Mr Farac’s evidence was that the B funds performed well, while the C fund portfolio performed poorly, causing Mr Gor to become volatile and visibly distressed and depressed. Mr Farac stated that as a consequence in early 2017, Mr Gor held a private discussion with him where he was visibly distraught and had tears in his eyes and stated words to the effect that he could not cope with the stress anymore and asked whether Mr Farac could take over the C funds at the end of February 2017, whilst he was on leave and the handover of funds could be sorted out when Mr Gor returned from annual leave, to which Mr Farac agreed.
[147] Mr Farac stated that around May 2017, when Mr Gor returned from leave, Mr Farac continued to manage the C fund portfolio for a few weeks. However, in late May 2017, he discovered that Mr Gor had decided to place a trade on the C fund portfolio and began to instruct the trade to Mr Lu - Assistant Portfolio Manager. Mr Farac stated that he advised Mr Gor that the trade should not occur as it did not suit the rest of the portfolio at that point in time whereupon Mr Gor requested to speak to him privately in a room and began to unreasonably shout words to the effect of ‘you have no right to stop me from trading on the C fund’. Mr Farac stated that he sensed that Mr Gor interpreted this behaviour as undermining his authority in front of new employees, Mr Hext and Ms Xie Patrick. 135
[148] Mr Farac says that it then became clear to him that Mr Gor had no regard for the agreement that had been made in relation to him managing the C fund portfolio and his desired career progression. As a result of this, Mr Farac stated he began to feel anxious and depressed as Mr Gor was not adhering to the promises he had made as part of the B fund proposal.
[149] In around mid-June 2017, Mr Farac stated that he noticed that his standing at work had shifted with Mr Gor ceasing his communications with him and tensions begun to rise with Mr Gor reshuffling seating, meaning that ‘he sat in less of a key position’. The C fund portfolio was removed from his control/management and was not replaced with another similar product. 136
[150] Mr Farac stated that Mr Gor consistently and repeatedly disregarded his opinion about anything and favoured the opinion of Mr Hext, despite Mr Hext having no experience with funds management or running portfolios. 137 Mr Hext’s evidence was that he strongly disagreed with Mr Farac’s assertion regarding his experience, stating he had 30 years’ experience in financial markets including as a Senior Portfolio Manager at Westpac.138
[151] Mr Farac stated that despite being visibly upset and angry whilst at work, Mr Gor did not approach or ask him to have a conversation about how he was feeling and there was little to no interaction between them. Mr Farac stated that he had no key responsibilities and no clear view as to the future of his career, compounded his anxiety and depression. 139
[152] In May 2017, when the C fund portfolio was allocated to Ms Xie Patrick, Mr Farac states he was devastated because his career path in this area had ended, 140 although it did not greatly upset him as he was given the G fund portfolio to work on which he was excited about,141 and moved on to the G fund pretty quickly.142
[153] Mr Gor in response stated that Mr Farac’s account of the February 2017 C fund meeting was factually incorrect. Mr Gor states that during March 2017 he travelled to London for three weeks, and during periods of absence, Mr Gor stated that it was customary for him to temporarily hand over responsibility for the management of the funds, which was sound governance and part of Pendal’s normal process. After his return from London, as usual and as expected he resumed responsibility of the funds. 143
[154] Mr Gor stated that he did not pass the responsibility for the C fund portfolio to Mr Farac for any extended period in 2017, other than during his three-week period of travel. Mr Gor further denied that he took Mr Farac into a room and said words to the effect of “I can’t cope with this stress anymore. Can you please take over the C funds at the end of February whilst I am on leave? We can sort out the handover of the funds when I get back.”144
[155] Mr Gor also denied that he suddenly decided to place a certain trade on the C fund portfolio when he returned from the United Kingdom. Mr Gor states that he had full discretion to trade over his own sleeves in the portfolio and that he would not have traded over Mr Farac’s sleeve as that is not how the portfolio worked. At the time, Mr Gor instructed Mr Lu to make trades on Mr Gor’s sleeves of this portfolio as he had always done and had the authority to do.145
[156] Mr Gor agreed that he placed a trade on the C fund in June 2017, which Mr Farac objected to and that he told Mr Farac that he had no right to tell him not to place a trade. In doing so Mr Gor stated that he did not shout as shouting was not something that he engaged in. 146
[157] Mr Gor rejected Mr Farac’s assertion that Mr Farac was left with no purpose or direction and stated that Mr Farac was running a sleeve of a $3billion hedge fund and was the Deputy Portfolio Manager on the I fund portfolio. Mr Gor acknowledged that it did not appear to be easy for Mr Farac when Ms Xie Patrick and Mr Hext joined the team as these two employees were extremely talented.147
[158] Regarding the seating changes in June 2017, Mr Gor stated that Mr Farac sat across from him in the office for 10 years. 148 Mr Gor denied that he initiated the seating changes complained of by Mr Farac. Mr Gor stated that Mr Hext and Ms Xie Patrick suggested the seating changes to facilitate their integration into the team, and Mr Farac went from sitting to the right of Mr Gor to diagonally opposite Mr Gor. Mr Gor stated that this was in no way a less key position, and that there were two further desk moves since that change in 2017, with Mr Gor and Mr Farac remaining diagonally opposite each other, and other team members moving around them.149
[159] Mr Gor stated that it was not correct for Mr Farac to say that Mr Gor ignored him, as there was cause to speak consistently throughout the day. Mr Gor further noted some factual inaccuracies in Mr Farac’s statement, stating that he did not observe Mr Farac being isolated from colleagues, that Mr Farac did not train Mr Hext or Ms Xie Patrick, and that Ms Xie Patrick was not running a portfolio ‘that was taken away from’ Mr Farac.150
[160] Mr Farac stated that due to Mr Gor’s level of seniority and influence within the business, he felt there were limited means for him to obtain support and he considered gaining alternative employment. However, because he was never named Portfolio Manager on any of the funds that he managed he could not present his experience to another employer and be offered an equivalent role with another organisation. 151
[161] Mr Farac stated that around December 2017, underperformance of the C fund portfolios continued and Mr Gor announced he could no longer manage the C fund portfolios. 152 Meetings were held to determine a new structure where Mr Gor would maintain ultimate control of the funds, but not the day-to-day responsibility of managing them.
[162] Mr Farac stated that despite attending C fund meetings, his opinions were never recognised by Mr Gor and that Mr Gor would often attack him unreasonably by shouting words to the effect of ‘you are selfish and only care about your own career and responsibilities’. Mr Farac stated that in response to this he often spoke out against Mr Gor stating words to the effect of ‘there is no feasible way for you to be able to take most of the risk of the portfolio, but simultaneously not be responsible for most of the performance’. Mr Farac also asked Mr Gor how he could relinquish day-to-day management of the portfolio, while also trading in considerable size, to which Mr Gor responded by ignoring his arguments and accusing him of having a hidden agenda with his input to solving the problem. 153
[163] Mr Farac stated that Mr Gor had repeated breakdowns while at work causing immense confusion within the team. Mr Farac stated that Mr Gor would move from having any involvement in managing the C fund portfolios to wanting to regain control over the C fund portfolios. This led to a situation where no single person had control of billions of dollars of funds under management for two years, which reflected in deep underperformance of the funds. Mr Farac stated that he expressed his concerns in private to Mr Campbell on a number of occasions, but nothing was done despite the fact that the portfolios were being mismanaged. Mr Farac stated that as a result of this lack of oversight of Mr Gor, he knew there would be no support for him or his complaints. 154
[164] Mr Farac stated that the yearly return objective marketed to all clients and detailed in the IM for the C fund portfolio was 3% over benchmark, however, when he commenced work on the C fund portfolio in about March 2017, the fund was performing extremely poorly, and below benchmark.155
[571] Mr Brandweiner stated that Mr Gor was fully supportive of Mr Farac playing a lead role in the development and marketing of the G fund product, as well as being the Portfolio Manager for the I fund. 543 At the same time Boutique Heads were to be seen as the face of the Boutique which reflects their greater experience and their ultimate accountability for the performance of the Boutique.544
[572] Mr Brandweiner’s evidence was that he told Mr Farac that Mr Gor had never complained about him. 545 Mr Brandweiner could not recall any occasions where Mr Gor attacked, complained, or unfairly criticised Mr Farac during his regular weekly meetings with Mr Gor546 and would usually respond positively when asked about how things were going547 and he did not believe Mr Farac was the subject of a personal vendetta by Mr Gor.548
[573] Ms Martin’s evidence was that while she had heard from others that things were not going well, Mr Gor had never reported to her about issues with the team. 549
[574] Mr Gor was described as a direct person with whom all the team have robust conversations about performance and investment decisions. 550 Mr Brandweiner’s evidence was that in his experience, having worked for over 20 years in the financial business, that fund performance generally affects the mood of most Portfolio Managers.
[575] Mr Hext’s evidence was that Mr Gor could get annoyed and become moody and curt with staff, 551 but never aggressive, angry or shout.552
[576] The evidence in this matter was that the work environment was stressful at times, particularly during periods of poor fund performance with a number of stakeholders that needed to be managed. Managers are entitled to hold to account employees whose performance is not at the required level but this does not provide for managers or others to embark on behaviour which creates a health and safety risk to others.
[577] While accepting the general robustness of workplace discussions within Mr Gor’s team, the evidence placed before the Commission did not demonstrate to the standard required, that Mr Farac shouted or raised his voice at Mr Farac (which Mr Gor denied) at least in anger or in a demeaning manner. Mr Gor’s conduct at the time his first child passed away in 2013, if it occurred as alleged by Mr Farac, could be excused due to the obvious difficult personal circumstances Mr Gor was experiencing and, in any event, seemingly would not manifest itself again as a period in excess of seven years has since elapsed.
[578] No doubt the working relationship between Mr Farac and Mr Gor would not have been assisted with the approach that Mr Farac states he took in February 2019, in deciding to challenge Mr Gor’s leadership style highlighting the lack of ownership and the confusing structure. 553
[579] The evidence demonstrated to the Commission’s satisfaction that Mr Farac’s issues with Mr Gor were heightened upon the appointment of additional staff. Mr Brandweiner’s evidence was that Mr Farac was particularly upset because Mr Gor had hired a new team member Mr Feldman and Mr Farac believed this was an example of Mr Gor taking away responsibility from him or undermining him.
[580] As a general proposition, Mr Farac could not expect to remain with the same role and responsibilities unaltered throughout his career at Pendal, changes would be inevitable. Mr Gor, who represents Pendal management, was entitled to allocate work and responsibility to his team members in a manner he deemed would provide the best outcome for Pendal, provided such action is not undertaken in a manner that would constitute bullying as defined in the Act.
[581] The results of decisions made by Mr Gor regarding portfolio management are decisions he is solely responsible for. They may not in all instances be seen by others as the right decisions, but Mr Gor is entitled to make these decisions. It is not for the Commission to stand in Mr Gor’s shoes and determine that he has made one or a number of bad management decisions in relation to his management of Mr Farac or others in allocating or removing portfolio responsibilities. Mr Gor is not required to be a role model manager and no doubt Mr Gor has his failings, and the evidence of Ms Martin that Pendal has provided Mr Gor with specialist coaching is noted in this regard.
[582] Mr Farac’s role at Pendal has seemingly not progressed in the manner he has anticipated, and he attributes this to Mr Gor’s conduct, although it is not apparent why Mr Gor would wish to undermine Mr Farac as this would reflect negatively on the performance of the Boutique that Mr Gor is responsible for.
12.1 Do findings amount to bullying?
[583] As the Commission has held above, Mr Farac’s allegation that Mr Gor’s message sent to Mr Farac in May 2019, which contained comments Mr Farac perceived as alarming and threatening has been made out. While Mr Farac’s message was otherwise professional, his final comment stating that “trying to go over my head to Richard was a big move for you” was as Mr Farac’s manager, unreasonable behaviour, no matter what the justification.
[584] There was no finding that any action taken or not taken by Mr Brandweiner was unreasonable.
[585] In respect of Ms Martin’s failure to provide Mr Farac with a redacted copy of the investigation report or at least a summary of the report’s findings, the Commission has held that this was unreasonable as it did not provide Mr Farac with any genuine opportunity to question the investigation findings or provide any comfort that his complaint had been dealt with properly and fully.
[586] The Act allows the Commission to issue any appropriate orders where it is satisfied that an employee has been bullied, with ‘bullying’ being repeated unreasonable behaviour that creates a risk to health and safety, with there being a risk that the bullying will continue.
[587] The above two findings are single instances of unreasonable behaviour by two employees directed towards Mr Farac. There was no submission made on behalf of Mr Farac that Ms Martin’s conduct could be seen as representing a risk that would continue and, on the evidence, no such finding can be made. As such it is not necessary to deal with Pendal’s submission that as Mr Farac was not at work at the time (as he was on personal leave) the conduct cannot satisfy the definition of bullying as defined at s.789FD(1)(a) of the Act.
[588] Nor can Mr Gor’s one off indiscretion in his message to Mr Farac in May 2019 constitute repeated unreasonable behaviour. Even if it could be held that in conjunction with the finding against Ms Martin both findings amount to ‘a group of workers’ bullying Mr Farac, the Commission is not satisfied that there would be a risk of such behaviour continuing. The behaviours are disparate in nature and do not lend themselves to repetition.
[589] Section 789FF(1) of the Act confers on the Commission a wide discretion to make such orders as it consider appropriate for the purpose of preventing an employee being bullied at work by the person or persons the subject of an anti-bullying application. In this matter the threshold jurisdictional requirements have not been met to enable the Commission to issue any bullying orders. While it would appear at least on the evidence of Mr Farac that there is a dysfunctional working relationship between himself and Mr Gor despite their early friendship, it is not within the Commission’s jurisdiction to attempt to remedy a dysfunctional work relationship.
[590] By way of final comment (and noting the evidence that since Mr Farac’s absence, the team dynamic has changed for the better 554), this matter was in the Commission’s view eminently capable of resolution with Mr Farac returning to the workplace with some workplace adjustments, not the least being an improved communication channel between Mr Farac and Mr Gor.
[591] As Mr Brandweiner’s evidence reflects, Pendal did not act on the offer from Mr Farac to make a deal for him to exit the business as Mr Brandweiner was of the view that Mr Farac still had a strong career with Pendal and he believed that the working relationship between Mr Farac and Mr Gor could be restored. 555
[592] Despite the Commission’s best efforts and encouragement that the parties resolve this matter without proceeding to an arbitrated hearing the parties were unable to do so.
[593] For the reasons set out above the application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr T Brennan SC and Ms J Williams of Counsel on behalf of the applicant
Mr D Mahendra of Counsel on behalf of the respondents
Hearing details:
2020
November 19
December 14, 15
2021
February 9
April 28
May 25
Note: The transcription of these proceedings has duplicated paragraph numbers, as such transcript references relate to the various hearing dates.
Printed by authority of the Commonwealth Government Printer
<PR732938>
1 See draft orders filed on 28 April 2021 as Annexure B to closing written submissions
2 PN513 -516, 535-6 (14 December 2020)
3 PN588. See also correspondence from Farac’s solicitors of 10 June 2021. PN126 (25 May 2021)
4 PN560
5 PN133-134 (25 May 2021)
6 Refer to Pendal website
7 PN247-252 (14 December 2020), PN412 (25 May 2021)
8 PN218-219 (14 December 2020)
9 PN3, PN201 (14 December 2020)
10 Statement of P. Farac of 27 October 2020 and Reply statement of P. Farac of 10 December 2020
11 Ibid at [6] although the F2 application refers to commencing in 2010
12 Reply statement of P. Farac of 10 December 2020 at [6]
13 PN2322 (15 December 2020), PN3316, 3320 (9 February 2021)
14 PN3318 (9 February 2021)
15 PN3494 (9 February 2021)
16 PN3495 (9 February 2021)
17 Reply statement of P. Farac of 10 December 2020 at [7]
18 PN1146 (14 December 2020)
19 Statement of P. Farac of 27 October 2020 at [14]
20 Reply statement of P. Farac of 10 December 2020 at [150]
21 Ibid at [159]
22 Statement of V. Gor of 27 November 2020 at [28]
23 Reply statement of P. Farac of 10 December 2020 at [151]
24 PN892 (14 December 2020), Attachment U to reply statement of P. Farac of 10 December 2020
25 PN892 (14 December 2020)
26 Mac v Bank of Queensland Ltd [2015] FWC 774 at [95]
27 GC [2015] FWC 6988 at [47], [52] and Mac v Bank of Queensland Limited and others [2015] FWC 744 at [48], [88]
28 PN140 (25 May 2021)
29 PN141-142 (25 May 2021)
30 [2015] FWC 744
31 PN366 (25 May 2021)
32 PN139, 142, 194 (25 May 2021)
33 [2014] FWCFB 9227
34 Ibid at [53]
35 [2015] FWC 744 at [149]
36 PN232, 249, 291 (25 May 2021)
37 [2015] FWC 744 at [99]
38 [2016] FWC 8223 at [61]
39 [2014] FWC 2104 at [49]
40 Ibid at [51]
41 See comments in Mekuria v Mecca Brands Pty Ltd [2019] FWCFB 2771
42 Statement of V. Gor of 27 November 2020 at [2-3]
43 Ibid at [4]
44 Ibid at [5-6]
45 Ibid at [7-8]
46 PN3301
47 Statement of V. Gor of 27 November 2020 at [14]
48 Ibid at [15]
49 Ibid at [16]
50 Ibid at [17]
51 PN1965 -1973 (15 December 2020)
52 15 December 2020
53 PN2514 (9 February 2021)
54 Statement of V. Gor of 27 November 2020 at [18]
55 Ibid at [19]
56 Ibid at [20]
57 PN3312 (9 February 2021)
58 PN2939 (9 February 2021)
59 Statement of V. Gor of 27 November 2020 at [29-30]
60 Statement of P. Farac of 27 October 2020 at [24]
61 Statement of V. Gor dated 27 November 2020 at [31]
62 Ibid at [32]
63 PN1861
64 Ibid at [33]; Statement of P. Farac of 27 October 2020 at [24]
65 Ibid at [34]
66 Reply statement of P. Farac of 10 December 2020 at [65]; and Statement of 27 October 2020 at [24]
67 Statement of P. Farac of 27 October 2020 at [28]
68 Statement of V. Gor of 27 November 2020 at [35]; Statement of P. Farac of 27 October 2020 at [29-30]
69 Statement of V. Gor of 27 November 2020 at [36]
70 Ibid at [36]; see also Statement of P. Farac of 27 October 2020 at [30]
71 Reply statement of P. Farac of 10 December 2020 at [81]; Statement of V. Gor of 27 November 2020 at [37]
72 Statement of V. Gor of 27 November 2020 at [37]
73 Statement of P. Farac of 27 October 2020 at [33]
74 Statement of V. Gor of 27 November 2020 at [38]; Statement of P. Farac of 27 October 2020 at [32]
75 Ibid at [39]
76 Ibid at [40]
77 Reply statement of P. Farac of 10 December 2020 at [37]
78 Statement of P. Farac of27 October 2020 at [33]
79 Ibid at [34]
80 Ibid at [36]
81 Ibid at [37]
82 Ibid at [37]
83 Statement of V. Gor of 27 November 2020 at [41-42]
84 Ibid at [43]; Statement of Farac at [35]
85 Ibid at [44]
86 Statement of P. Farac of 27 October 2020 at [36]
87 Ibid at [40]
88 Reply statement of P. Farac of 10 December 2020 at [66]; Statement of P. Farac of 27 October 2020 at [27]
89 Ibid at [67]; Statement of P. Farac of October 2020 at [28]
90 Ibid at [68]
91 Statement of P. Farac of 27 October 2020 at [41]
92 Ibid at [43]
93 Ibid at [47]
94 Statement of V. Gor of 27 November 2020 at [45]
95 Ibid at [46]
96 Ibid at [47]
97 Ibid at [47]
98 Ibid at [48]; Statement of P. Farac of 27 October 2020 at [43-48]
99 Ibid at [49]
100 Reply statement of P. Farac of 10 December 2020 at [82]; Statement of V. Gor of 27 November 2020 at [49]
101 Statement of V. Gor dated 27 November 2020 at [50]
102 Ibid at [51-52]; Statement of P. Farac of 27 October 2020 at [40-47]
103 Ibid at [53]
104 Ibid
105 PN1629 (15 December 2020)
106 PN1628 (15 December 2020)
107 PN2734-35 (9 February 2021)
108 PN3401 (9 February 2021)
109 PN3408, 3441(9 February 2021)
110 Statement of V. Gor of 27 November 2020 at [47]
111 Statement of P. Farac of 27 October 2020 at [49]
112 PN1206 (15 December 2020)
113 PN1210-1214 (15 December 2020)
114 PN1213-14 (15 December 2020)
115 Statement of P. Farac of 27 October 2020 at [50]
116 Statement of V. Gor of 27 November 2020 at [54]; Statement of P. Farac of 27 October 2020 at [50]
117 Ibid at [54]; Statement of P. Farac of 27 October 2020 at [50]
118 Ibid at [55]; Statement of P. Farac of 27 October 2020 at [51]; Annexure B
119 Ibid at [56]; Statement of P. Farac of 27 October 2020 at [52]; Annexure C
120 Ibid at [57]; Statement of P. Farac of 27 October 2020 at [52]; Annexure C
121 Statement of P. Farac of 27 October 2020 at [54-55], PN939 (14 December 2020)
122 Statement of V. Gor of 27 November 2020 at [58]; Statement of P. Farac of 27 October 2020 at [53-55]
123 PN709 (28 April 2021)
124 Statement of P. Farac of 27 October 2020 at [57]
125 Ibid at [58]
126 PN970, 971-977 (14 December 2020)
127 Reply statement of P. Farac of 10 December 2020 at [9]
128 Ibid at [10]
129 Statement of P. Farac of 27 October 2020 at [59]
130 Ibid at [58 – 60]
131 Statement of V. Gor of 27 November 2020 at [61]
132 Ibid at [63]
133 Ibid at [62-63]
134 Statement of P. Farac of 27 October 2020 at [58]
135 Ibid at [68]
136 Ibid at [70]
137 Ibid at [71]
138 Statement of T. Hext of 27 November 2021 at [32]
139 Statement of P. Farac of 27 October 2020 at [72]
140 PN1013 (14 December 2020)
141 PN998 (14 December 2020)
142 PN1007-1008 (14 December 2020)
143 Statement of V. Gor of 27 November 2020 at [66]
144 Ibid at [65-67]; Statement of P. Farac of 27 October 2020 at [61-63]
145 Ibid at [68-69]; Statement of P. Farac of 27 October 2020 at [67]
146 PN2731-34 (9 February 2021)
147 Statement of V. Gor of 27 November 2020 at [70-71]; Statement of P. Farac of 27 October 2020 at [70]
148 PN3218 (2 February 2021)
149 Statement of V. Gor of 27 November 2020 at [72]; Statement of P. Farac of 27 October 2020 at [70]
150 Ibid at [74]
151 Statement of P. Farac of 27 October 2020 at [74]
152 Ibid at [75]
153 Ibid at [78]
154 Ibid at [80]
155 Reply statement of P. Farac of 10 December 2020 at [11]
156 Ibid at [12]
157 Statement of P. Farac of 27 October 2020 at [68]
158 Reply statement of P. Farac of 10 December 2020 at [13]
159 Ibid at [14]
160 Statement of P. Farac of 27 October 2020 at [88]
161 PN1079 (14 December 2020)
162 Reply statement of P. Farac of 10 December 2020 at [16-17]
163 Ibid at [19]
164 Statement of V. Gor of 27 November 2020 at [64]
165 Statement of T. Hext of 27 November 2020 at [41]
166 Reply statement of Farac of 10 December 2020 at [83]; Statement of V. Gor of 27 November 2020 at [75]
167 Ibid at [23]
168 Statement of T. Hext of 27 November 2020 at [23]
169 Ibid at [23-24]
170 Ibid at [27], [31]
171 Ibid at [29-30]
172 Ibid at [36-38]; Statement of P. Farac of 27 October 2020 at [76-77]
173 Ibid at [39-40]
174 Reply statement of P. Farac of 10 December 2020 at [74]; Statement of T. Hext of 27 November 2020 at [35]
175 Ibid at [75]; Statement of T. Hext of 27 November 2020 at [35]
176 Written submissions of 28 April 2021 at [121]
177 PN2450 (15 December 2020)
178 PN2556 (9 February 2021)
179 PN2683 (9 February 2021)
180 PN2573-2575 (9 February 2021)
181 PN2675, 2727 (9 February 2021)
182 Statement of P. Farac of 27 October 2020 at [81-82]
183 Statement of V. Gor of 27 November 2020 at [76]
184 Ibid at [77]
185 Statement of P. Farac of 27 October 2020 at [81]
186 Statement of P. Farac of 27 October 2020 at [83-84]
187 Ibid at [86]
188 Ibid at [89]
189 Statement of V. Gor dated 27 November 2020 at [78]
190 Ibid at [81]
191 Ibid at [82]; Statement of P. Farac of 27 October 2020 at [85]
192 Ibid at [83]
193 Ibid at [84]; Statement of P. Farac of 27 October 2020 at [86]
194 Ibid at [86]; Statement of P. Farac of 27 October 2020 at [89]
195 Statement of P. Farac of 27 October 2020 at [90]
196 Ibid at [96]
197 Ibid at [94]
198 Statement of V. Gor of 27 November 2020 at [88]; Statement of P. Farac of 27 October 2020 at [90-93]
199 Ibid at [89]
200 Ibid at [90]
201 Reply statement of P. Farac of 10 December 2020 at [84]; Statement of V. Gor of 27 November 2020 at [90]
202 Ibid at [85]; Statement of V. Gor of 27 November 2020 at [90]
203 Ibid at [21(a)]
204 Ibid at [[21(c))]
205 Ibid at [21(d)]
206 Ibid at [24]
207 Ibid at [24-25]
208 Statement of V. Gor of 27 November 2020 at [91]; Statement of P. Farac of 27 October 2020 at [94]
209 Statement of T. Hext of 27 November 2020 at [15-16]
210 PN3446 (9 February 2021)
211 Statement of T. Hext of 27 November 2020 at [50]; Statement of P. Farac of 27 October 2020 at [90]
212 Ibid at [52]; Statement of P. Farac of 27 October 2020 at [91]
213 Ibid at [53]
214 Ibid at [12-13]
215 Ibid at [17-18]
216 Statement of T. Hext of 27 November 2020 at [16]
217 Written submissions of 28 April 2021 at [127]
218 Statement of P. Farac of 27 October 2020 at [98]
219 Ibid at [100]
220 Statement of V. Gor of 27 November 2020 at [92]
221 Ibid at [93]
222 Ibid at [94]
223 Ibid at [95]
224 Reply statement of P. Farac of 10 December 2020 at [26]
225 Ibid at [27-28]
226 Ibid at [30]
227 Ibid at [31]
228 Ibid at [31]
229 Ibid at [32]
230 Ibid at [33]
231 Ibid at [34]
232 Ibid at [35]
233 Ibid at [36]
234 Ibid at [34]
235 Written submissions of 28 April 2021 at [148]
236 Reply statement of P. Farac of 10 December 2020 at [31]
237 Statement of V. Gor of 27 November 2020 at [96]
238 Statement of P. Farac of 27 October 2020 at [104-105]
239 Ibid at [97]
240 Statement of P. Farac of 27 October 2020 at [112-113]
241 Statement of V. Gor of 27 November 2020 at [100]
242 Ibid at [98-99]
243 Statement of P. Farac of 27 October 2020 at [109]
244 Statement of V. Gor of 27 November 2020 at [101]
245 Ibid at [102]
246 Ibid at [103]
247 Statement of T. Hext of 27 November 2020 at [54-55]
248 Ibid at [55-57]
249 Reply statement of Farac 10 December 2020 at [87]; Statement of V. Gor of 27 November 2020 at [100]
250 Statement of R. Brandweiner of 27 November 2020 at [37]
251 Ibid at [36-37]
252 Ibid at [38]
253 Statement of P. Farac of 27 October 2020 at [110]
254 Statement of P. Farac of 27 October 2020 at [115-119]
255 Statement of V. Gor of 27 November 2020 at [104]
256 Ibid at [58]; Statement of P. Farac dated 27 October 2020 at [117]
257 Statement of P. Farac of 27 October 2020 at [122]
258 Statement of V. Gor of 27 November 2020 at [105-107]; Statement of P. Farac of 27 October 2020 at [120-122]
259 Statement of P. Farac of 27 October 2020 at [125]
260 Ibid at [126]
261 Statement of V. Gor of 27 November 2020 at [108]
262 Ibid at [109]
263 Ibid at [110]
264 Ibid at [111]
265 Ibid at [112]
266 Ibid at [113-114]
267 Ibid at [115]
268 Reply statement of P. Farac of 10 December 2020 at [86]; Statement of V. Gor of 27 November 2020 at [112]
269 Statement of T. Hext of 27 November 2020 at [59-61]; Statement of P. Farac of 27 October 2020 at [124-126]
270 Ibid at [62]; Statement of P. Farac of 27 October 2020 at [128]
271 Statement of P. Farac of 27 October 2020 at [131]
272 Ibid at [134]
273 Statement of V. Gor of 27 November 2020 at [116]
274 Ibid at [117]
275 Ibid at [123]
276 Ibid at [118]
277 Statement of R. Brandweiner of 27 November 2020 at [25]
278 Statement of V. Gor of 27 November 2020 at [120]
279 Statement of P. Farac of 27 October 2020 at [134]
280 Annexure F to statement of P. Farac of 27 October 2020
281 Statement of P. Farac of 27 October 2020 at [137]
282 Ibid at [121]
283 Ibid at [122]
284 Statement of V. Gor of 27 November 2020 at [125]
285 Annexure VG9 to statement of V. Gor of 27 November 2020
286 Statement of V. Gor of 27 November 2020 at [124]
287 Reply statement of P. Farac of 10 December 2020 at [22]; page [44] of Annexure DM-34 to statement of D. Martin of 27 November 2020
288 PN1139 (14 December 2020)
289 Statement of P. Farac of 27 October 2020 at [139]
290 Ibid at [141]
291 Statement of R. Brandweiner of 27 November 2020 at [21-24]
292 Reply statement of P. Farac of 10 December 2020 at [76]; Statement of R. Brandweiner of 27 November 2020 at [24]; Statement of P. Farac of 27 October 2020 at Annexure F
293 PN3590 (9 February 2021)
294 Statement of R. Brandweiner of 27 November 2020 at [25]
295 Ibid at [27]
296 Ibid at [32]; Statement of P. Farac of 27 October 2020 at [136], message reads ‘I want to be aware though that I did not appreciate the way you went about trying to get this outcome, trying to go over my head to [Mr Brandweiner] was a big move for you.’
297 Investigation report at 5.7.3.1 and 5.7.3.3; DM34 to Statement of D. Martin of 27 November 2020
298 Ibid at 5.7.3.2
299 Written submissions of 28 April 2021 at [197]
300 Statement of P. Farac of 27 October 2020 at [140]
301 Statement of R. Brandweiner of 27 November 2021 at [18]
302 Ibid at [26]
303 Statement of P. Farac of 27 November 2020 at [144]
304 Ibid at [145]
305 Statement of V. Gor of 27 November 2020 at [126]; Statement of P. Farac of 27 October 2020 at [144]
306 Ibid at [127]
307 Ibid at [129]
308 Ibid at [130]
309 Ibid at [131-132] and Annexure VG-12
310 Ibid at [133]
311 Ibid at [134]
312 Reply statement of P. Farac of 10 December 2020 at [59] and statement of V. Gor of 27 November 2020 at Annexure VG-10
313 Ibid at [60]
314 Ibid at [61]
315 Ibid at [62]; Statement of V. Gor of27 November 2020 at Annexure VG-11
316 Statement of R. Brandweiner of 27 November 2020 at [39]; Annexure RB-2
317 Reply statement of P. Farac of 10 December 2020 at [77]
318 Ibid at [64]
319 Written submissions of 28 April 2021 at [204]
320 Statement of V. Gor of 27 November 2020 at [133]
321 Statement of P. Farac of 27 October 2020 at [147]
322 Ibid at [147-148]
323 Reply statement of P. Farac of 10 December 2020 at [38]
324 Statement of V. Gor of 27 November 2020 at [135]; Statement of P. Farac of 27 October 2020 at [147-148]
325 Statement of V. Gor of 27 November 2020 at [137]
326 Ibid at [138]
327 Ibid at [136]
328 Ibid at [139]
329 Ibid at [140]
330 Ibid at [141]
331 Ibid at [142] and at Attachment VG-15
332 Ibid at [142 – (1) error in paragraph numbering and Appendix VG-16 to statement of V. Gor of 27 November 2020
333 PN2850
334 PN2940
335 Reply statement of P. Farac of 10 December 2020 at [39]
336 Ibid at [41]
337 Ibid at [42]
338 Ibid at [43]
339 Ibid at [44]
340 Reply statement of P. Farac of 10 December 2020 at [45]
341 Ibid at [46]
342 Ibid at [47]
343 Citing slides 33 to 41 of the G fund performance update internal for August 2019 as an example, reply statement of P. Farac of 10 December 2020 at [48] and Annexure M
344 Reply statement of P. Farac of 10 December 2020 at [49]
345 Ibid at [50]
346 Ibid at [51]
347 Annexure RB-6 to statement of R. Brandweiner of 27 November 2020
348 Reply statement of P. Farac of 10 December 2020 at [52]
349 Ibid at [53]
350 Ibid at [54]; and Annexure M
351 Ibid at [54]
352 Ibid at [55]
353 Ibid at [56]
354 Ibid at [57]
355 Statement of V. Gor of 27 November 2020 at [142(2)]
356 Reply statement of P. Farac of 10 December 2020 at [88]; Annexure T
357 Statement of V. Gor of 27 November 2020 at attachment VG-18
358 Ibid at [142(3)]
359 Statement of T. Hext of 27 November 2020 at [63-65]; Statement of P. Farac of 27 October 2020 at [147-148]
360 Ibid at [66]; Annexure TH-2
361 Statement of R. Brandweiner of 27 November 2020 at [40]
362 Ibid at [41-42]
363 Ibid at [43-44]
364 Annexure RB-6 to statement of R. Brandweiner of 27 November 2020
365 Ibid at [45-46]
366 Written submissions of 28 April 2021 at [183]
367 Attachment VG14 to statement of V. Gor of 27 November 2020
368 Attachment VG15 to Gor statement of 27 November 2020
369 Attachment VG16 to Gor statement of 27 November 2020
370 PN3304 (9 February 2021)
371 [2015] FWC 4419 at [108]
372 Written submissions of 28 April 2021 at [183]
373 Statement of P. Farac of 27 October 2020 at [155]
374 Written submissions of 28 April 2021 at [207]
375 Statement of T. Hext of 27 November 2020 at [67]
376 PN93 (25 May 2021)
377 Annexure DM-34 to statement of D. Martin of 27 November 2020 at page 45
378 Written submissions of 28 April 2021 at [237]
379 PN2860 (9 February 2021)
380 Volume 2 of Court Book at [534]
381 PN2887 (9 February 2021)
382 PN3189-3192 (9 February 2021)
383 Statement of R. Brandweiner of 27 November 2020 at [1-2]
384 Ibid at [3-5]
385 Ibid at [6]
386 Ibid at [7-8]
387 Ibid at [9]
388 PN3600, 3603 (9 February 2021)
389 PN3603 (9 February 2021)
390 Statement of R. Brandweiner of 27 November 2020 at [10]
391 PN3494-5 (9 February 2021)
392 Statement of R. Brandweiner of 27 November 2020 at [11-14]
393 Ibid at [16]
394 Ibid at [17]
395 Ibid at [35]
396 Ibid at [33-34]; Statement of P. Farac of 27 October 2020 at [139-140]
397 Ibid at [47]; Annexure RB-4
398 Ibid
399 Ibid at [47]; Annexure RB-4
400 Ibid at [48]
401 PN3595-6 (9 February 2021)
402 Ibid at [49]; Annexure RB-5
403 Ibid at [51]; Annexure RB-6
404 Ibid at Annexure RB-6
405 Ibid
406 Statement of P. Farac of 27 October 2020 at Annexure G
407 Statement of R. Brandweiner of 27 November 2020 at [50-52]
408 Ibid at [50]
409 Ibid at [53]
410 Ibid at [20]
411 Reply statement of P. Farac of 10 December 2020 at [91]
412 Statement of R. Brandweiner of 27 November 2020 at [54]
413 Ibid at [55-56]
414 PN3612 (9 February 2021)
415 Statement of D. Martin dated 27 November 2020 at [1-2]
416 Ibid
417 Ibid at [4]
418 Ibid at [5], Annexures DM-1, DM-2, DM-3, DM-4, DM-5
419 Ibid at [6-8], Annexures DM-6, DM-7
420 Ibid at [10-11]
421 Ibid at [23-24]
422 Ibid at [25]
423 Ibid at [26-27]
424 Ibid at [28]
425 PN272, 274 (28 April 2021)
426 Statement of D. Martin of 27 November 2020 at [29-30]
427 Statement of P. Farac of 27 October 2020 at [145]
428 Statement of D. Martin of 27 November 2020 at [31]
429 Ibid at [32]
430 Ibid at [33]
431 PN310 (28 April 2021)
432 PN1443-1444 (15 December 2020)
433 Statement of D. Martin of 27 November 2020 at [34]
434 PN308-13 (28 April 2021)
435 Statement of D. Martin of 27 November 2020 at [35]
436 Reply statement of P. Farac of 10 December 2020 at [69]
437 Statement of D. Martin of 27 November 2020 at [36]
438 Ibid at [37]
439 Ibid at [39]
440 Statement of P. Farac of 27 October 2019 at [164-171]
441 Statement of D. Martin of 27 November 2020 at [38]
442 It is not clear how this finding was made in view of the statement at 5.7.3.2 Witness of the investigation report who is said only to have ‘interpreted’ Mr Gor’s comments in this way with Mr Gor having made a differently worded statement.
443 Statement of D. Martin of 27 November 2020 at [46]
444 Ibid at [47]; Note the reference to ‘unlawful’ is not attached to any particular section of the Act where bullying is unlawful
445 Ibid at [49]; Statement of P. Farac of 27 October 2020 at [74]
446 Reply statement of P. Farac of 10 December 2020 at [70]
447 Statement of D. Martin of 27 November 2020 at [50]
448 Ibid at [51]
449 Reply statement of P. Farac of 10 December 2020 at [71]
450 Statement of D. Martin of 27 November 2020 at [54]; Statement of P. Farac of 27 October 2020 at [160-161]
451 Ibid at [55]; Statement of P. Farac of 27 October 2020 at [163]
452 Statement of P. Farac of 27 October at [162]
453 Statement of D. Martin of 27 November 2020 at [56]
454 Ibid at [56]; Statement of Farac dated 27 October 2020 at [162]
455 Ibid at [13-14]
456 Ibid at [15]
457 Ibid at [17-18]
458 Ibid at [19-20]
459 Ibid at [21]
460 Ibid at [22]
461 Ibid at [22(e)] and [57]
462 Written submissions of 28 April 2021 at [213]
463 Ibid at [164]
464 PN94 (25 May 2021)
465 Statement of D. Martin of 27 November 2020 at [43]
466 At 3.2.3 of the Policy
467 Statement of D. Martin of 27 November 2020 at [42]
468 [2020] FWC 6204
469 Statement of D. Martin of 27 November 2020 at [44-45]
470 [2021] FWCFB 2623, See summary of principles at [63]
471 PN407 (28 April 2021)
472 PN76 (28 April 2021)
473 Submissions of 28 April 2021 at [233-239]
474 Ibid at [238]
475 Ibid at [239]
476 PN466, 478 (28 April 2021)
477 PN426 (28 April 2021)
478 PN482, 492 (28 April 2021)
479 PN896 (28 April 2021)
480 PN3552 (9 February 2021)
481 Written submissions 28 April 2020 at [224-232]
482 PN1548-1550 (15 December 2020)
483 PN1520 (15 December 2020)
484 See Annexure DM-14 to statement of D. Martin of 27 November 2020; PN1575-7
485 Statement of D. Martin of 27 November 2020 at [22e]
486 Ibid at [57]
487 Ibid at [22e]
488 Statement of T. Hext of 27 November 2020
489 Ibid at [3-4]
490 Ibid at [5]
491 PN3379 (9 February 2021)
492 Statement of T. Hext of 27 November 2020 at [6-8]
493 Ibid at [9]
494 Ibid at [10]
495 Ibid at [11]
496 Ibid at [14]
497 Ibid at [19]
498 Ibid at [20]
499 Ibid at [20-21]
500 Ibid at [22]
501 Ibid at [32]; Statement of P. Farac of 27 October 2020 at [71]
502 Ibid at [35]
503 Ibid at [34-35]
504 Ibid at [43]; Statement of P. Farac of 27 October 2020 at [81]
505 Ibid at [43-45]
506 Ibid at [46-49] See statement of P. Farac of 27 October 2020 at [81]
507 Ibid at [67]; See statement of P. Farac of 27 October 2020 at [156]
508 PN3409-10 (9 February 2020)
509 PN3408 (9 February 2020)
510 PN3441 (9 February 2020)
511 PN684 (28 April 2021)
512 Statement of V. Gor of 27 November 2020 at [8]
513 Ibid at [9]
514 Ibid at [10]
515 Ibid at [27]
516 Ibid at [23]
517 Ibid at [11]
518 Ibid at [13]
519 PN955-957 (14 December 2020)
520 PN944-951 (14 December 2020)
521 PN957 (14 December 2020)
522 Statement of V. Gor of 27 November 2020 at [12]
523 PN970, 971-977 (14 December 2020)
524 Statement of V. Gor of 27 November 2020 at [21]
525 Ibid at [22]
526 Statement of D. Martin of 27 November 2020 at [35]
527 Statement of T. Hext of 27 November 2020 at [20]
528 Ibid at [19]
529 Ibid at [19-21]
530 Ibid at [20]
531 Statement of V. Gor of 27 November 2020 at [22]
532 Ibid at [26]
533 Ibid at [142(5a)]
534 Ibid at [142(5b)]
535 Reply statement of P. Farac of 10 December 2020 at [89]
536 Ibid at [78]; Statement of V. Gor of 27 November 2020 at [22]
537 Ibid at [79]; Annexure Q; Statement of V. Gor of 27 November 2020 at [26] and [91]
538 Reply statement of P. Farac of 10 December 2020 at [90]
539 Statement of V. Gor of 27 November 2020 at [24]; Statement of P. Farac of 27 October 2020 at [38]
540 Ibid at [25]
541 PN920 (14 December 2020)
542 PN925 (14 December 2020)
543 Statement of R. Brandweiner of 27 November 2020 at [38]
544 Ibid at [7-8]
545 Ibid at [27]
546 Ibid at [11-14]
547 Ibid at [34b]
548 Ibid at [50]
549 Statement of D. Martin of 27 November 2020 at [54]
550 Statement of T. Hext of 27 November 2020 at [51]
551 PN3409-10 (9 February 2021)
552 PN3408 (9 February 2021)
553 Statement of P. Farac of 27 October 2020 at [125]
554 Statement of Hext 27 November 2020 at [22]
555 Statement of R. Brandweiner of 27 November 2020 at [50]
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