Christopher Bradshaw v BHP Coal Pty Ltd
[2014] FWC 2481
•11 APRIL 2014
[2014] FWC 2481 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Unfair dismissal
Christopher Bradshaw
v
BHP Coal Pty Ltd
(U2013/11809)
COMMISSIONER JOHNS | MELBOURNE, 11 APRIL 2014 |
Application for Relief of Unfair Dismissal - Out of Hours Conduct - Misconduct - Valid Reason - Application dismissed.
Introduction
[1] On 23 July 2013 Christopher Bradshaw (Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (Act) for a remedy in respect of his dismissal by BHP Coal Pty Ltd (Employer/Respondent).
[2] On 8 August 2013 the Employer filed a response to the unfair dismissal application.
[3] On 30 August 2013 the unfair dismissal application was listed for conciliation before a Fair Work Commission (Commission) Conciliator, but remained unresolved at the end of the conciliation.
[4] Consequently the matter was listed for hearing.
Permission to be represented
[5] On 3 February 2014, the Commission sought submissions from the parties about whether the Commission should grant permission for each of them to be represented by a lawyer. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just. 1
[6] Having regard to the submissions made by the parties 2 the Commission determined that allowing both parties to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Conference or Hearing
[7] Also on 3 February 2014, the Commission also sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter.
[8] Taking account:
• any differences in the circumstances; and
• the wishes; 3
of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, the Commission, as presently constituted, decided to conduct a hearing.
[9] The unfair dismissal application was set down for a two day hearing before the Commission, as presently constituted, in Brisbane on 13 and 14 February 2014.
The hearing
[10] At the hearing the Applicant was represented by Mr C Newman, a legal officer with the CFMEU. Mr Newman called three witnesses as follows:
Christopher John Bradshaw | - | the Applicant 4 |
Dean Robert Sutton | - | employee of the Respondent and CFMEU delegate 5 |
Jason John Noonan | - | employee of the Respondent and CFMEU delegate 6 |
The witness statements of the following witnesses were also admitted without objection:
| Stephen Pick | - | employee of the Respondent and friend of the Applicant 7 |
| Terrance Smith | - | employee of the Respondent and friend of the Applicant 8 |
[11] At the hearing the Respondent was represented by Mr J Snaden of counsel. Mr Snaden called five witnesses as follows:
| Tina Maria Fox | - | Employee of the Respondent, Housing Coordinator 9 |
| Matthew Clarke Harris | - | employee of the Respondent, Drill and Blast Superintendent 10 |
| Jarrod Scott Stewart | - | former employee of the Respondent 11 |
| Gregory William Hamilton | - | employee of the Respondent and Superintendent, Human Resources 12 |
| Maria Christine Harris | - | former employee of the Respondent and ex-partner of the Applicant 13 |
Background
[12] The following facts were either common ground between the parties or not contested:
a) On or about 15 April 1980 the Applicant commenced employment with the Respondent at their ‘Peak Downs’ mine site; 14
b) On 5 July 2013 the Applicant’s employment was terminated for misconduct; 15
c) At the time of the termination of his employment the Applicant was employed as a driller. 16 By all accounts he was good at his work. No formal performance or conduct issues had previously been raised with the Applicant;17
d) As are all BMA employees, the Applicant was required to adhere to the BHP Billiton Charter Values and BHP Billiton Code of Business Conduct; 18
2009
e) In early 2009 the Applicant entered into a relationship with Ms Maria Harris, also employee of the Respondent. 19 Ms Harris was employed in a management role;20
f) In or about July 2009 the Applicant and Ms Harris moved into a house at 58 Grosvenor Drive, Moranbah (“Grosvenor Drive Property”); 21
g) The Grosvenor Drive Property was owned by the Respondent. The Respondent leased the property to Ms Harris; 22
h) The Applicant lived rent free with Ms Harris; 23
i) Before moving in together the Applicant sold his then residence in Moranbah. 24 He had bought that property off the Respondent in 1999. He made a capital gain on the property of about $360,000;25
j) At the time that the Applicant sold his house he was not otherwise entitled to a rental property provided by the Respondent (because he was a “prior participant” i.e. the house that he sold he had previously bought off the Respondent); 26
k) Around November 2009 the Applicant and Ms Harris broke up; 27
2012
l) In or about May 2012 Ms Harris moved out of the Grosvenor Drive Property. 28 At the time Ms Harris expressed a concern about personal safety issues if she stayed with the Applicant.29 Ms Harris also claimed that the Applicant was seeking to extort money out of her;30
m) The Respondent (through its then Human Resources Manager at Saraji Mine, Gregory Hamilton) organised emergency accommodation for Ms Harris; 31
n) Notwithstanding Ms Harris’ departure from the Grosvenor Drive Property the Applicant continued to reside at the property rent free;
o) Ms Harris asked Mr Hamilton not to take steps to evict the Applicant at this time; 32
p) In about June 2012 a new draft enterprise agreement proposed that prior participants would gain access to Respondent provided accommodation. 33 At or about this time (around 10 or 11 June) the Applicant and Ms Harris discussed him accessing SPV accommodation when the enterprise agreement commenced;34
q) The new enterprise agreement, the BMA Enterprise Agreement 2012 (2012 EA), was voted up in October 2012. It commenced operation in 2 November 2012. From that date the Applicant was entitled to apply for and receive rental accommodation from the Respondent. 35 The Applicant understood he had this entitlement and that his only entitlement was to Single Person Village (SPV) accommodation.36 He understood he had no entitlement to a house.37 The Applicant understood that there was a waiting list for house accommodation;38
r) At this time there were three SPVs that the Respondent used in Moranbah: the BMA SPV, the MAC SPV and BMA Curtin House (closed September 2013). The BMA SPV is an asset owned by the Respondent. It came on-line in about April 2013. The MAC SPV is owned and run by The MAC Services Group. The Respondent rents rooms from the The MAC Services Group. 39 The BMA SPV is more popular and there is a waiting list for it;40
s) In late 2012 Ms Harris paid the Applicant $60,000 to facilitate his movement out of the Grosvenor Drive Property and into SPV accommodation. The payment was in recognition that the Applicant would now have to pay rent; 41
t) Despite:
a. knowing that there was a waiting list for accommodation like the Grosvenor Drive Property;
b. being eligible for SPV accommodation from November 2012; and
c. having been paid $60,000 by Ms Harris to compensate him for having to pay rent in a SPV,
the Applicant took no active steps to apply for SPV accommodation until April 2013 (and only then on the basis that it was the BMA SPV). 42 During this time the Applicant continued to live rent free in the Grosvenor Drive Property (as he had done since he moved into the property in 2009);
2013
u) In about March/April 2013 the Respondent’s Housing Coordinator, Ms Tina Fox, called the Applicant and advised him that he had no right to reside at the Grosvenor Drive Property; 43
v) The Applicant maintained then, up to his dismissal and before the Commission 44 that he had a right to reside at the Grosvenor Drive Property because of a purported agreement with Ms Harris that he be able to do so;45
w) In or around April 2013 Mr Hamilton advised Ms Harris that the Respondent was going to attempt to evict the Applicant. Ms Harris agreed with the Respondent commencing that process; 46
x) On 3 April 2013 Ms Fox also spoke with Ms Harris (Ms Harris having called to discuss her concerns about the change in her emergency accommodation). Ms Harris told Ms Fox that she did not want to return to the Grosvenor Drive Property because the Applicant was there and he was refusing to leave. 47 Ms Harris denied to Ms Fox that she had agreed with the Applicant that he could remain at the property;48
y) Around 5 April 2013 the Applicant received a Notice to Leave from Ms Fox. 49 The Notice to Leave provided that the notice was issued “with grounds”, namely, the “end of Housing Assistance”. It demanded vacation by midnight on 6 May 2013.50 At the hearing before the Commission it was conceded that the Notice to Leave was defective by reason of the Applicant not being a tenant of the Respondent;51
z) Ms Fox also provided the Applicant with an Accommodation Application Form; 52
aa) Later on 5 April 2103 Ms Fox spoke with the Applicant. Ms Fox said she could allocate the Applicant a room in the MAC SPV. The Applicant said he would only go to the BMA SPV. Ms Fox explained there was a waitlist; 53
bb) The Applicant filled out the Accommodation Application Form, but indicated that he would only go to the BMA SPV; 54
cc) Over the following weeks (including on 6 April 2013) the Applicant had a number of telephone conversations with Ms Fox. Ms Fox maintained that the Applicant had to leave the Grosvenor Drive Property. The Applicant continued to assert his right to stay. 55 Ms Fox made it clear to the Applicant that any authority he thought he had from Ms Harris to stay at the property was invalid because Ms Harris had no authority to allow the Applicant to stay in the property;56
dd) The Applicant sought advice from the Queensland Residential Tenancies Authority (RTA). Based on the information that the Applicant provided the RTA, it advised him that he had a right to stay at the the Grosvenor Drive Property; 57
ee) The Respondent was also seeking advice from the RTA. Based on the information that the Respondent provided the RTA, it advised the Respondent that the Applicant did not have a right to stay at the Grosvenor Drive Property; 58
ff) On about 9 May 2013 the Applicant spoke to Robyn Hayes (Ms Fox’s boss) from the Respondent’s housing department. Ms Hayes insisted the Applicant had no right to stay at the Grosvenor Drive Property; 59
gg) The discussion with Ms Hayes was followed by correspondence. Ms Hayes wrote (omitting formal and irrelevant parts),
As per our conversation of 9th May 2013, you agreed to vacate the above property on or before midnight 30th May 2013. As an employee of BMA you will be required to return the keys to Accommodation Services ... and ensure the property is properly cleaned and returned ...
Please sign below and return a copy to Accommodation Services before 4.30 pm Friday 10th May 2013 ... confirming you agree to the above.
Should alternate accommodation be required in village accommodation please call ... and speak with Accommodation Services to ensure a room is available when required. 60
hh) The Applicant did not return the signed confirmation. Rather, the Applicant advised Ms Hayes that he would not leave the Grosvenor Drive Property unless the Respondent obtained a warrant of possession; 61
ii) Over the following weeks the Applicant had a number of telephone conversations with Ms Hayes. Ms Hayes maintained that the Applicant had to leave the Grosvenor Drive Property. The Applicant continued to assert his right to stay; 62
jj) On 14 May 2013 Ms Harris was issued with a Notice to Leave. This was given to her in anticipation of her employment with the Respondent ending. It required vacant possession by 14 June 2013; 63
kk) Ms Fox also sent the Applicant a Notice to Leave dated 14 May 2013; 64
ll) On 16 May 2013 the Applicant approached the Respondent’s Drill and Blast Superintendent Mr Matthew Harris to discuss the accommodation issue. 65 Mr Harris followed his discussion with the Applicant by a telephone discussion with Ms Hayes.66 After his discussion with Ms Hayes, Mr Harris confirmed to the Applicant that he was not entitled to stay at the Grosvenor Drive Property;67
mm) On 18 May 2013 Ms Harris’ employment with the Respondent finally ended. As the Lessee of the Grosvenor Drive Property she was given one month’s notice to vacate (i.e. by 17 June 2013). 68 Sometime after Ms Harris’ employment ended the Applicant became aware of the same.69 At some point before 17 June 2013 Ms Harris advised the Applicant that she wanted to collect her car from the Grosvenor Drive Property;70
nn) On 22 May 2013 the Applicant received the second Notice to Leave (dated 14 May 2013). The Notice to Leave provided that the notice was issued “with grounds”, namely, the “ending of Accommodation Assistance”. It demanded vacation by midnight on 14 June 2013. 71 At the hearing before the Commission it was conceded that the Notice to Leave was defective by reason of the Applicant not being a tenant of the Respondent;72
oo) On 23 May 2013 the Applicant rang the Respondent’s Accommodation Services and said he would not vacate until he was provided with accommodation at the BMA SPV; 73
pp) On 30 May 2013 Ms Hayes spoke with the Applicant and advised him that sometime after 7 June 2013 the Respondent would be changing the locks on the Grosvenor Drive Property. He was further advised that accommodation at the MAC SPV would be made available to him; 74
qq) In June 2013 the Applicant spoke with Ms Harris about the accommodation issue 75 and about him moving out;76
rr) On 6 June 2013 the Applicant filed a dispute notification (Form 16) with the RTA. 77 Although the Applicant could have elected to identify himself as a “resident”, he identified himself on the Form 16 as a “tenant”. He identified the Respondent as the “lessor”. He also advised that he was in dispute with “Maria Harris” and that the dispute was about a “verbal agreement regarding tenancy not [being] fulfilled”.78 In the hearing before the Commission it was conceded that, for the same reason that each of the Notices to Leave were defective, the Applicant’s dispute notification was defective (because he was not a tenant of the Respondent);79
ss) The Respondent refused to participate in mediation before the RTA; 80
tt) On 17 June 2013 Ms Harris attended at the Grosvenor Drive Property to collect her car; 81
uu) Also on 17 June 2013 the Respondent changed the locks at the Grosvenor Drive Property and boarded up the windows. 82 Ms Fox was in attendance to oversee the changing of the locks.83 Ms Harris was also present at this time.84 Ms Harris (still the named tennant of the Grosvenor Drive Property) did not object to the locks being changed;85
vv) The changing of the locks cost the Respondent $1,200; 86
ww) Ms Harris’ attendance at the Grosvenor Drive Property was not known to the Applicant. The changing of the locks (on that particular day) and the boarding up of the windows occurred without the knowledge of the Applicant; 87
xx) Ms Fox booked the Applicant accommodation at the MAC SPV. 88 However, it is apparent that this was not communicated to the Applicant;
yy) On returning to the Grosvenor Drive Property the applicant entered the premises though a window. 89
zz) Ms Hayes reported the Applicant’s entry into the premises to the Police; 90
aaa) On 18 June 2013 the Respondent filed a Warrant for Possession of the Grosvenor Drive Property; 91
bbb) On 18 June 2013 Mr Harris spoke to the Applicant about his entry into the Grosvenor Drive Property the night before. Mr Harris made it clear that he could not condone what the Applicant had done; 92
ccc) On 19 June 2013 the Applicant was called to a meeting with the Respondent’s then Manager of Production Mining, Jarrod Stewart and Mr Harris. The Applicant was supported at the meeting by CFMEU Peak Downs lodge delegate, Jason Noonan. 93 At the meeting Mr Stewart directed the Applicant to leave the Grosvenor Drive Property. The Applicant refused.94 Mr Stewart stood the Applicant down;95
ddd) After the meeting on 19 June 2013 Mr Noonan had a discussion with Mr Stewart. Mr Noonan asked Mr Stewart whether, if the Applicant moved to the MAC SPV, the Applicant could keep his job. 96 Mr Noonan says that Mr Stewart replied by saying “yes” and that if the Applicant moved to the MAC SPV the result would be some other form of disciplinary action.97 Mr Stewart said “I hope we don’t get to that stage.” He also said words to the effect that the offer to move to the MAC was “fast running out”.98 Mr Noonan reported this meeting to Dean Sutton (CFMEU Secretary);99
eee) On 20 June 2013 Mr Sutton met with Mr Stewart (principally about matters unrelated to the Applicant). At the end of the meeting Mr Sutton raised the issue of the Applicant. 100 Mr Sutton asked whether, if he could convince the Applicant to move to the MAC camp, the Applicant could retain his job. Mr Stewart said the Applicant’s (immediate) move to the MAC Camp would resolve the issue with only a disciplinary “step”.101 After the meeting Mr Sutton advised the Applicant of this;102
fff) On 20 June 2013 Mr Harris again spoke with the Applicant and reiterated that the Applicant had to leave the Grosvenor Drive Property; 103
ggg) Also on 20 June 2013 Mr Harris gave advice to Mr Stewart to issue a show cause letter. Mr Stewart accepted that advice; 104
hhh) On 21 June 2013 the Applicant was served with the Warrant for Possession. 105 The Respondent named both Ms Harris and the Applicant as respondents to the Warrant for Possession. For the same reason that each of the Notices to Leave and the Applicant’s dispute notification were defective, the Warrant for Possession was defective as against the Applicant (because he was not a tenant of the Respondent);
iii) Also on 21 June 2013 at around 4.00 pm the Applicant received a letter from Mr Harris to show cause why his employment should not be terminated (Show Cause Letter). 106 The Show Cause Letter:
a. was incorrectly dated “25 June 2013”;
b. set out the factual background from the Respondent’s behalf;
c. advised that,
I view your repeated refusal to follow an express direction to vacate the Property, and your subsequent forced entry to the Property on the evening of 17 June 2013, as serious misconduct.
I have formed the preliminary view that your conduct is in breach of:
• BMAs Charter Values of Respect & Integrity;
• The BHP Billiton Code of Business Conduct; and
• The relationship of trust and confidence that must exist between you and BMA.
Chris, these findings are very serious. BMA is considering taking disciplinary action against you, which may include termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to consider the findings above and your employment history with BMA. You are required to provide a written response and to show cause as to why your employment should not be terminated. 107
jjj) During the meeting on 21 June 2013 Mr Harris advised the Applicant that a room would be available for him at the MAC SPV. 108 Mr Harris called the MAC SPV to ensure that there were rooms available;109
kkk) After the meeting with Mr Harris on 21 June 2013 the Applicant went to the MAC, but did not check in. 110 He claims there were no rooms available. The Applicant called Mr Harris to advise him of this.111 Mr Harris again called the MAC SPV. They confirmed rooms were available.112 Mr Harris called the Applicant to tell him that rooms were available;113
lll) On 22 June 2013 the Applicant checked into the MAC SPV; 114
mmm) On 25 June 2013, Steven Pierce (CFMEU District Vice President) sent Mr Stewart a letter seeking an extension of time for the Applicant to respond to the Show Cause Letter. Mr Stewart agreed to the request. 115
nnn) On 26 June 2013 the Queensland Civil and Administrative Tribunal issued a Warrant of Possession. 116 Ms Harris did not oppose the issuing of the Warrant of Possession. The Applicant did oppose the Warrant of Possession;117
ooo) On 1 July 2013 the Applicant provided a response to the Show Cause Letter; 118 In his response the Applicant,
a. maintained that it was his “belief that [he] had authority to stay, and that [he] was a lawful tenant...”
b. said “Maria gave [him] a verbal undertaking that [he] would be able to reside at the residence for a time until accommodation was made available at the Moranbah BMA Single Persons Village”;
c. maintained that “at all times [his] entry as alleged by the company was not unlawful as it was [his] belief that [he] was the tenant at this address. All [his] property and belongings were still at the building. [He] did not damage any part of the building while gaining access.”
d. stated that he “did not move out of the premises as requested by the company as [he] exercised what [he] believed to be [his] right under the Residential Tenancy’s and Rooming Accommodation Act 2008.”
e. asserted that his “accommodation arrangements did not impact on [his] work duties or performance and are an entirely separate matter.”
f. noted that he had “since relocated [his] belongings to single person village accommodation provided by the company.”
g. asserted that he did “not believe that the events described warrant[ed] any disciplinary action....”
ppp) On 5 July 2013 the Applicant met with Mr Stewart and Dallas Morris (an Acting Superintendent employed by the Respondent). The Applicant was accompanied by Scott Leggett from the CFMEU. At the meeting the Applicant maintained that he had done nothing wrong; 119
qqq) Mr Stewart decided to terminate the Applicant’s employment. 120 Mr Stewart said “Most troubling for me was the Applicant’s persistent refusal to comply with the direction that he vacate the [Grosvenor Drive] Property and his refusal to accept any wrongdoing or show any remorse for his conduct.”121
rrr) On 5 July 2013 the Applicant’s employment was terminated. 122 The valid reasons for the termination of the Applicant’s employment were stated to be,
• Continued to reside at the Property without authorisation;
• Refused to follow numerous directions to vacate the Property; and
• Unlawfully forced entry into the Property.
[13] The substantive issues that remain in dispute are as follows:
a) were the reasons for termination relied upon by the Respondent and the conduct of the Applicant (in refusing to leave the Grosvenor Drive Property) out-of-hours conduct having no connection with the Applicant’s employment?
b) if the necessary connection with work is established, did the Respondent have a valid reason/s for the termination?
c) was the dismissal of the Applicant’s employment otherwise harsh, unjust or unreasonable?
[14] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or, in the alternative, that he be compensated.
Protection from Unfair Dismissal
[15] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[16] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Note: High income threshold indexed to $129,300 from 1 July 2013.”
[17] There is no dispute, and the Commission is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement. Consequently, the Commission is satisfied the Applicant was protected from unfair dismissal.
[18] The Commission will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.
Was the dismissal unfair?
[19] A dismissal is unfair if the Commission is satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Was the Applicant dismissed?
[20] It is not in dispute in this matter that the Applicant’s employment was terminated at the initiative of the employer on 5 July 2013 by reason of purported serious misconduct.
[21] Consequently, the Commission finds that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the Act.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[22] The Respondent is not a small business. Therefore, the Small Business Fair Dismissal Code is not relevant in the present matter.
Was the dismissal a genuine redundancy?
[23] The issue of genuine redundancy does not arise in the present matter.
Harsh, unjust or unreasonable
[24] Having been satisfied of each of s.385(a),(c)-(d) of the Act, the Commission must consider whether the Commission is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[25] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
[26] The Commission is under a duty to consider each of these criteria in reaching its conclusion. 123
[27] The Applicant submits the dismissal was harsh, unjust or unreasonable because:
• the conduct engaged in the Applicant was “out of hours and does not form a valid reason for termination due to the principles espoused in Rose v Telstra” 124
• even if the Applicant’s employment was connected with his employment there remains no valid reason because:
o he was authorised to reside at the Grosvenor Drive Property by Ms Harris; 125
o the direction to leave the Grosvenor Drive Property was not a direction he had to comply with (unlike directions in relation to the performance of work) because he disagreed with it; 126
o he did not gain unlawful forced entry into the Grosvenor Drive Property on 17 June 2013 because the changing of the locks was improper; 127
o any costs incurred by the Respondent in trying to evict the Applicant were voluntarily incurred by it; 128 and
• even if there was a valid reason for termination, the termination of the Applicant’s employment was harsh having regard to his long service, lack of disciplinary record, impact on him personally and loss of leave accruals and bonus payments. 129
[28] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:
• the conduct engaged in by the Applicant was not ‘out of hours’ conduct; 130
• there were valid reasons for the termination; 131
• the decision to terminate the Applicant’s employment was otherwise not harsh, but a proportionate and appropriate response having regard to the gravity of the Applicant’s conduct. 132
‘Out of hours’ conduct
[29] Before considering each of the criteria at s.387 of the Act, it is appropriate to address the question of whether the conduct engaged in by the Applicant was ‘out of hours’ conduct. If the answer to that question is in the affirmative then, it follows, there was no valid reason for the termination and the Applicant must succeed in his application for a remedy.
[30] The Applicant submits that the conduct is ‘out of hours’ conduct because what occurred between the Applicant and the Respondent was “a tenancy dispute between the landlord (the respondent) and a tenant (the applicant).” 133 Consequently, the Applicant says that the events detailed above had nothing to do with his employment134 as a driller - a job, by all accounts, he was very good at.
[31] The Respondent submits that the conduct is not ‘out of hours’ conduct because the Applicant was not a tenant of the Respondent. 135 It says the events in question do not constitute a tenancy dispute. It says the conduct engaged in by the Applicant was likely (and did in fact) cause serious damage to the relationship between the Respondent and the Applicant.136
[32] The most thorough discussion of the issue of ‘out of hours’ conduct and employees’ and of the respective rights and obligations of employees and employers is the decision of Vice President Ross (as he then was) in Rose v Telstra Corporation Limited. 137 In that decision his Honour:
• traversed the change in the legal basis of the employment relationship over time from the old law of master and servant with the emergence of the modern law of employment and the movement from status to contract;
• explained that the “shift in the nature of the employment relationship has implications for an employer’s capacity to discipline an employee in respect of out of work conduct”;
• confirmed that “an employee’s behaviour out of hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contact of employment”;
• stated that “an employee’s implied duty of fidelity and good faith is particularly relevant here”;
• noted that “the concept of a duty of fidelity and good faith is used as a matter of convenience to subsume a range of obligations which are intended to ensure that the employee renders honest and faithful service to the employer. They include ... an obligation to act honestly in the handling of the employer’s property;”
• noted that “more recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer’s interest”;
• held that “it is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
o the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; or
o the conduct damages the employer’s interests; or
o the conduct is incompatible with the employee’s duty as an employee”.
• held that “in essence the conduct complained of must be of such gravity or importance to indicate a rejection or repudiation of the employment contact by the employee”.
[33] In Rose v Telstra his Honour found that Mr Rose’s conduct (which involved a fight with his Telstra colleague after a night of drinking at the hotel where they were staying) “lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination”. His Honour found that Mr Rose’s behaviour,
“was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances”.
[34] In the present matter it is relevant to have regard to what duties, express or implied, the Applicant owed to the Respondent.
[35] In terms of express obligations, Attachment “JS-2” to the Witness Statement of Jarrod Stewart is the Respondent’s “Code of Business Conduct”. The Applicant was obliged to comply with it. 138 This meant the Applicant had to:
• ensure that while “on the job or in [his] personal time, nothing [he did] should conflict with [his] responsibilities to BHP Billiton”. It was explained that “a conflict of interest arises when an employee ... participates in an activity or acquires another interest ... that jeopardises ... his ... judgement...”; 139
• “exercise good judgement when deciding to ... accept ... hospitality...” 140
• only accept hospitality “occasional[ly] and of modest value”; 141
• “assess the potential for a conflict of interest when ... accepting ... hospitality”; 142
• not “accept hospitality .. above a modest value without obtaining authorisation”; 143
• “[safeguard] and appropriately [use] BHP Billiton assets under [his] control;” 144
• not use “BHP Billiton assets ... for personal benefit;” 145 and
• “comply with applicable BHP Billiton requirements ... regarding the use and transfer of BHP Billiton assets.” 146
[36] The Code of Business Conduct makes it clear that a breach of it can result in dismissal. 147
[37] In terms of implied obligations, consistent with Rose v Telstra, the Applicant owed the Respondent:
• a duty of fidelity and good faith;
• a duty of honest and faithful service; and
• a duty to act honestly in the handling of the Respondent’s property.
[38] The Applicant was not a tenant of the Respondent. Ms Harris was the Respondent’s tenant. Nor was the Applicant a sub-tenant of Ms Harris. At all times the Applicant knew this to be the case. Accordingly, the submission, that the events in question constituted a tenancy dispute as between the Applicant and the Respondent, is properly rejected.
[39] At best, for some period of time, the Applicant was a guest of Ms Harris. He was not in residence because of some binding agreement with Ms Harris to the effect that “he could continue to reside at the premises for as long as he wished”. 148 Ms Harris had no such right herself and, it necessarily follows, she could not give the Applicant a greater right to be in the property than she herself enjoyed. As a non-tenant and non sub-tenant, the Applicant’s “right” to reside at the Grosvenor Drive Property was always less than Ms Harris’. She had no authority to grant him the “right” he asserted (i.e. to reside there for “as long as he wished”).
[40] In this regard, the Applicant was in receipt of hospitality (in the form of free accommodation) from Ms Harris. It was not of a modest value. It was rent free accommodation for nearly 4 years. It was in this context that the Applicant’s interest in maintaining rent free accommodation put him in conflict with the interests of his employer (to be able to reallocate the property to a more deserving employee in need of a 4 bedroom home). Faced with this conflict the Applicant preferred his own self-interest over the interests of his employer.
[41] The consequence of:
• the express and implied duties; and
• the conflict of interest described above,
is that the Applicant’s decision to refuse to leave the Grosvenor Drive Property (i.e. the property of his employer) was conduct that:
o viewed objectively, was likely to cause (and did cause) serious damage to the relationship between the Applicant and the Respondent;
o damaged the Respondent’s interests (to reallocate the property to a more deserving employee in need of a 4 bedroom home);
o was incompatible with the Applicant’s duties as an employee as set out in the Code of Business Conduct; and, consequently,
o was not ‘out of hours’ conduct.
[42] To suggest that the Applicant’s conduct in relation to the Grosvenor Drive Property had nothing to do with his employment too narrowly construes the obligations inherent in the employment relationship. It is true that the conduct had nothing to do with the Applicant’s duties as a driller, but that misunderstands the nature of the employment relationship which extends beyond the duties of the job. It extends to the express and implied obligations that an employee owes to their employer. In the present matter the Applicant’s conduct had a direct connection with his employment when it came to his use of the Respondent’s property. This included the Grosvenor Drive Property. The question then, is whether the Applicant’s conduct (in refusing to leave the property) constituted a valid reason for termination and, if so, whether the termination of his employment was otherwise harsh, unjust of unreasonable.
[43] I will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[44] The Respondent alleges that the valid reason includes serious misconduct which resulted in the Applicant’s summary dismissal. Therefore, while it is open to the Commission to decide whether the conduct constituted serious misconduct, s.387(a) obliges the Commission to determine whether the conduct in question was a valid reason. 149 A finding that the conduct was not serious misconduct may render a dismissal for valid reason, harsh.
[45] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 150 The reasons should be “sound, defensible and well founded”151 and should not be “capricious, fanciful, spiteful or prejudiced.”152
[46] As stated above, on 5 July 2013 the Applicant’s employment was terminated. 153 The valid reasons for the termination of the Applicant’s employment were stated to be,
• Continued to reside at the Property without authorisation;
• Refused to follow numerous directions to vacate the Property; and
• Unlawfully forced entry into the Property.
[47] It is necessary to consider each reason to determine whether any of them constituted a valid reason for termination of employment.
Did the Applicant continue to reside at the Property without authorisation?
[48] First, the Applicant did not have an entitlement to Respondent provided accommodation until the commencement of the 2012 EA. At that point he became entitled to SPV accommodation. Accordingly, the 2012 EA provided no authority for the Applicant to reside at the Grosvenor Drive Property.
[49] Secondly, it is clear that the Applicant did not have the Respondent’s authority to continue to reside at the Grosvenor Drive Property after Ms Fox first advised the Applicant of the need for him to leave the property in about March/April 2013. Thereafter, through the actions of Ms Fox, Ms Hayes, Mr Harris and Mr Stewart, the Applicant must have understood that, from the Respondent’s perspective, he had no authority to stay at the Grosvenor Drive Property. Through the acts of its employees, (including oral and written demands to leave, misguided applications to the RTA to formally evict him, the changing of the locks, the boarding up of the premises, the calling of the police and the threat of termination) the Respondent could not have been clearer in its demand that the Applicant leave the property.
[50] In the face of:
• having no entitlement under the 2012 EA to reside at the Grosvenor Drive Property;
• knowing there was a waiting list for the property; 154
• knowing the Respondent wanted him to leave;
• knowing there was accommodation available for him at the MAC SPV; 155
the Applicant asserted to his employer and maintained before the Commission, he had a right to stay at the residence because of a purported agreement with Ms Harris. The Applicant submits that,
As Ms Harris was the lessee she, and not the respondent, had the right to authorise who could reside in the premises. It was only when the warrant of possession was issued against Ms Harris on 26 June of 2013 that the lease was broken and the applicant no longer had authorisation to reside at the premises. 156
[51] The first point to make about this alleged authority is that Ms Harris had no authority (imputed or otherwise) to make an agreement that would see the Applicant stay at the Grosvenor Drive Property in the terms he asserted (i.e. “for as long as he wished”). The second point to make is that Ms Harris’ lack of authority was communicated to the Applicant. 157 Consequently, the Applicant is not to be believed when he continues to assert he thought Ms Harris could give him greater rights to the property than the owner of the property was telling him he had.158 It is a proposition that beggars belief.
[52] Even if Ms Harris did have some type of authority (as alleged by the Applicant) it is further useful to understand the terms of that authority through a proper construction of the purported agreement between the Applicant and Ms Harris.
[53] Ms Harris attended under order of the Commission and gave evidence from a separate room via video link so as not to have to face the Applicant. She presented as a witness of truth and credibility. Her evidence was that:
• “anybody making [a] statement (that they could live in the house indefinitely, no matter what happened to the relationship they were in) would realise how unreasonable it is to expect that that will ever be the case”; 159
• “any reasonable person would expect that once your relationship had broken down you would, you know, part ways and no longer have that burden over your head”; 160
• she did not say the Applicant “could live with [her] forever, no matter where [she] lived”; 161
• her relationship with the Applicant ended when she left the Grosvenor Drive Property in or about May 2013; 162
• at the time she left the relationship the Applicant “had been physically violent and [she] no longer felt safe staying there”; 163
• she “told [the Applicant] quite clearly that [she] felt unsafe staying [at the property]. [The Applicant] knew the reasons why [she] wouldn’t stay there and [she] told him exactly that [she] felt unsafe and [she] didn’t trust him.” 164
• in the latter part of 2012 she paid the Applicant $60,000 to compensate him for future rental costs in light of the EA negotiations that would see the Applicant entitled to SPV accommodation; 165
• the Applicant reneged on the deal to apply for SPV accommodation (and leave the Grosvenor Drive Property) in exchange for $60,000. 166
[54] Ms Harris’ evidence is corroborated by the evidence of Mr Hamilton. It was his evidence that Ms Harris told him that the agreement between her and the Applicant “was that as soon as the new enterprise agreement had been voted up and was in place, Mr Bradshaw would immediately ... contact accommodation services to move into SPV accommodation.” 167
[55] To the extent that Ms Harris had any agreement with the Applicant it is apparent, on the evidence of Ms Harris, that the terms of that agreement ended when:
• the Applicant became eligible for single person accommodation (i.e. on 2 November 2012 when the new enterprise agreement commenced operation); and
• Ms Harris paid the Applicant $60,000 as compensation for the fact that he was now going to have to pay rent. This payment occurred in late 2012 (and certainly by December 2012).
[56] Therefore, (even if it is relevant to the question of the Applicant’s authority to stay at the Grosvenor Drive Property) Ms Harris withdrew her authority on and from around December 2012. Any suggestion that the Applicant continued to have Ms Harris’ authority beyond this point in time is fanciful. Ms Harris didn’t pay the Applicant $60,000 out of the goodness of her heart; she paid it to the Applicant (a man she left citing fears for her personal safety) in exchange for the Applicant’s departure from the Grosvenor Drive Property. The Applicant then reneged on the deal. He pocketed the $60,000 and then did everything he could to stay in the property rent free for a further 6 months (until he finally moved out on 22 June 2013).
[57] By reason of the above analysis the Commission is satisfied that the Applicant continued to reside at the Grosvenor Drive Property without authorisation. Further, he did so in breach of his obligation (express and implied) to always prefer his employer’s interest in the property over his own. His conduct in this regard provided a valid reason for the termination of his employment.
Did the Applicant refuse to follow numerous directions to vacate the Property?
[58] Having regard to the facts set out in paragraph [49] above the Commission is also satisfied that the Applicant refused to follow numerous directions to vacate the Grosvenor Drive Property. This is conceded by the Applicant.
[59] The question then is whether the directions were lawful and reasonable. Having regard to the analysis above concerning the Applicant’s express and implied obligations to the Respondent it follows that the directions where both lawful and reasonable as contemplated by R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan. 168 Accordingly, the Commission is satisfied that the Applicant’s refusal to follow the same provided a valid reason for the termination of his employment.
Did the Applicant unlawfully force entry into the Property?
[60] With no right to reside at the Grosvenor Drive Property under the 2012 EA, the express denial of authority to stay and demand to leave (as communicated by the Respondent’s employees) and (if it is necessary) the end of Ms Harris’ authority to stay, it follows that the Applicant’s entry into the property on 17 June 2013 was unlawful. The Applicant had no right to be there. He had no right to enter the property. The fact that the police took no action against him is irrelevant.
[61] In these proceedings the Applicant would have the Commission find that it was reasonable for him to enter the Grosvenor Drive Property on the evening of 17 June 2013 because he had arrived home from work to discover, only then, that the locks had been changed, all his possessions were inside and he had no other place to stay that night. The Commission does not so find and has no sympathy for the Applicant. It is undisputed that on 30 May 2013 Ms Hayes told the Applicant that, sometime after 7 June 2013, the locks would be changed. To the extent that the Applicant made no plans to move his possessions in the following 10 days he cannot complain about the locks being changed without further notice being provided to him. The situation he found himself in on the evening of 17 June 2013 was entirely of his own making.
[62] Even if the circumstances that the Applicant found himself in (on the evening of 17 June 2013) demand some sympathy, that sympathy quickly evaporates. This is because, when faced by the changed locks, the Applicant took no steps on 18, 19, 20 or 21 June 2013 to leave the Grosvenor Drive Property. 169 It seems nothing the employer did was able to convince the Applicant he must leave the property.
[63] The Commission is therefore satisfied that there was an unlawful entry by the Applicant and is further satisfied that it provided a valid reason for the termination of his employment.
[64] Consequently, for the reasons set about above, the Commission finds that there were valid reasons for the dismissal.
Notification of the valid reason - s.387(b)
[65] The Applicant concedes that he was notified of the reason for termination. 170
[66] The Commission finds the Applicant was notified of the reason for the dismissal.
Opportunity to respond - s.387(c)
[67] The Applicant concedes that he was provided with an opportunity to respond to the allegations made against him by the Respondent. 171
[68] The Commission finds the Applicant was given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[69] The Applicant concedes that he was allowed a support person at each meeting with the Respondent, including the termination meeting. 172
[70] The Commission finds the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[71] The termination of the Applicant’s employment was not terminated by reason of unsatisfactory performance. In fact, by all accounts the Applicant was very good at his job as a driller. 173 Accordingly, s.387(e) is not a relevant consideration in the present matter.
Impact of the size of the Respondent on procedures followed - s.387(f)
[72] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal. In the present matter the Respondent is a large employer.
[73] The Commission finds the size of the employer’s enterprise did impact on the procedures followed in effecting the dismissal in so far as it caused the Respondent to follow appropriate procedures.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[74] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[75] The Respondent has a dedicated human resources management function. Consequently, s.387(g) is not relevant in the present matter.
Other relevant matters - s.387(h)
[76] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant
[77] The Commission, as presently constituted, considers the following matters to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable:
a) the Applicant was a long serving employee of 33 years;
b) the Applicant had virtually no disciplinary history during the life of his employment with the Respondent;
c) the Applicant commenced employment with the Respondent out of high school;
d) the Applicant never worked at any other mine or for any other employer;
e) the Applicant is a long term resident of Moranbah. He has lived almost his entire life there; 174
f) the termination of his employment meant that the Applicant could no longer afford to live in Moranbah; 175
g) consequently, he had to leave Moranbah, leaving behind his social networks and friends; 176
h) termination for misconduct disentitled the Applicant to the payment out of leave accruals under the 2012 EA. 177 The loss, before tax, was approximately $27,727.42 in leave accruals and $5,769.23 in bonus payments.
[78] Having regard to the matters stated immediately above, it is clear that, in the present matter, the termination of the Applicant’s employment had a very significant impact on his life. Not only was the Applicant terminated from the employment he had enjoyed for 33 years, but it resulted in him having to leave the town where he had spent most of his adult life. The Commission places great weight on the significant impact the termination has had on the Applicant. However, the Commission is not satisfied that the significant impact outweighs the extent of the Applicant’s misconduct. The termination of the Applicant’s employment was not a disproportionate response to his conduct. The significant impact does not render the termination of the employment harsh.
[79] In this respect the Applicant was the architect of his own undoing. Having lived in the Grosvenor Drive Property rent free for 3 years and 8 months (i.e. up to when, in March/April 2013, Ms Fox made it clear he had to leave) in circumstances where:
a) he knew the demand for such properties was high;
b) as from 2 November 2012 he had a right to be provided with alternate accommodation by the Respondent (but chose not to take it up);
c) Ms Harris had paid him $60,000 to compensate him for now having to pay rent;
d) he was asked many times by representatives of the Respondent to leave the property so that the Respondent could make it available to an employee in greater need for a 4 bedroom home,
the Applicant maintained a self-interested fiction that he had some legal right to continue to reside at the property.
[80] In the pursuit of that self-interest the Applicant put his employer to very unreasonable inconvenience and expense. He did so, so that he could remain in the property rent free, as it turned out, for a further:
• 6 months after Ms Harris paid him $60,000 to leave; and approximately
• 3 months from when he was first asked to vacate by Ms Fox.
[81] In the termination letter the Respondent wrote,
[We have] incurred significant cost as a result of your actions, including charges associated with changing the locks on the Property and boarding up access points, lost productive time and lost MAC Village booking charges due to your repeated failure to access this accommodation. 178
[82] The “lost productive time” included the considerable time and energy a number of the Respondent’s employees diverted to the task of evicting the Applicant. The Applicant acted selfishly and unreasonably in this regard. His actions were inconsistent with an employee acting in good faith and fidelity towards his employer.
[83] After living rent-free for 3 years and 8 months (i.e. up to when, in March/April 2013, Ms Fox made it clear he had to leave) the Applicant should have left with good grace when he was asked to do so. He had already stayed a further 3 months beyond the date when Ms Harris paid him $60,000 to leave. But that was not enough for the Applicant. He had been on a good wicket and he wanted to stay there. To this end he unreasonably made every attempt to stay longer in his rent free accommodation. The Applicant’s self-interested conduct in this regard is astounding. It put him in conflict with his employer’s interest in reallocating the Grosvenor Drive Property to someone more in need of a 4 bedroom home.
[84] The Applicant’s failure to prefer his employer’s interest in the property over his own was a breach of the duties he owed to his employer. In addition to the 3 valid reasons advanced by the Respondent for the termination of the Applicant’s employment, the failure on the Applicant’s behalf to resolve the conflict of interest in his employer’s favour also founded a valid reason for the termination of his employment. The Applicant’s complete disregard for his employer’s interest outweighs the significant impact that the termination of his employment has had on his life.
Conclusion
[85] Having considered each of the matters specified in s.387, the Commission is not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, The Commission finds the Applicant’s dismissal was not unfair. Consequently, the Mr Bradshaw’s application for an unfair dismissal remedy is dismissed.
[86] An order will be issued with this decision.
COMMISSIONER
Appearances:
Mr C Newman for the Applicant.
Mr J Snaden for the Respondent.
Hearing Details:
2014.
13 and 14 February.
Brisbane.
1 Warrell v FWC [2013] FCA 291.
2 The CFMEU on behalf of the Applicant filed written submissions on 31 January 2014. The Respondent appeared by telephone at the directions hearing on 3 February 2014.
3 The CFMEU on behalf of the Applicant filed written submissions on 31 January 2014. The Respondent appeared by telephone at the directions hearing on 3 February 2014.
4 Witness Statement Exhibit “A1” and Additional Witness Statement Exhibit “A2”.
5 Witness Statement Exhibit “A4”.
6 Witness Statement Exhibit “A5”.
7 Witness Statement Exhibit “A6”.
8 Witness Statement Exhibit “A7”.
9 Witness Statement Exhibit “R1”.
10 Witness Statement Exhibit “R2”.
11 Witness Statement Exhibit “R3”.
12 Witness Statement Exhibit “R4”.
13 An outline of the evidence to be given by Ms Harris was filed and served on 11 February 2014.
14 Exhibit “A9” [4(a)], Exhibit “A1” [1].
15 Exhibit “A9” [4(a)], Exhibit “A1” [1].
16 Exhibit “A9” [4(b)], Exhibit “A1” [4].
17 Exhibit “A1” [5].
18 Attachment “JS1” to Exhibit “R3.
19 Exhibit “A9” [4(c)], Exhibit “A1” [7].
20 PN 1661, Exhibit “A1” [27].
21 Exhibit “A9” [4(c)], Exhibit “A1” [7], Exhibit “A3” (Statutory Declaration by Maria Harris) [2].
22 Exhibit “A9” [4(c)], Exhibit “A3” (Statutory Declaration by Maria Harris) [1]. PN1619.
23 PN1655.
24 Exhibit “A9” [4(d)], Exhibit “A1” [12].
25 Attachment “TMF4” to Exhibit “R1”, PN161-162 & PN237.
26 Exhibit “A1”, [16], PN233 - 236.
27 Exhibit “A9” [4(e)].
28 Exhibit “A9” [4(g)], Exhibit “A1” [21].
29 Exhibit “R4” [14] & [17]. PN1650-1652. The Applicant denies there were personal safety issues.
30 Exhibit “R4” [12]. Attachment “GHW1” to Exhibit “R4”.
31 Exhibit “R4” [20].
32 Exhibit “R4” [27].
33 Exhibit “A1” [25].
34 PN319 (although the Applicant says the discussion was about the BMA SPV).
35 Exhibit “R1” [18] - [26], PN241-244.
36 PN272.
37 PN275.
38 PN367.
39 Exhibit “R1” [27].
40 Exhibit “R1” [30]
41 PN336-338. PN1653-1655.
42 PN324.
43 Exhibit “A9” [4(i)], Exhibit “A1” [31], Exhibit “R1” [49] (Ms Fox says this occurred on 3 April 2013).
44 PN513-555.
45 Exhibit “A9” [4(j)], Exhibit “R1” [49]. The fact of that agreement, the characterisation of the agreement, the capacity of Ms Harris to enter into any such agreement, the terms of that agreement and the duration of the agreement were contested matters before the Commission.
46 Exhibit “R4” [34] - [35].
47 Exhibit “R1” [52].
48 Exhibit “R1” [56] - [57].
49 Exhibit “A9” [4(k)], Exhibit “A1” [33], Exhibit “R1” [61].
50 Attachment “CB1” to Exhibit “A1”.
51 PN1106.
52 Exhibit “R1” [61]
53 Exhibit “R1” [62] - [64].
54 Exhibit “R1” [66]
55 Exhibit “A9” [4(l)], Exhibit “A1” [34]-[37], Exhibit “R1” [69] - [76]
56 PN449-450 & PN476.
57 Exhibit “A9” [4(m)], Exhibit “A1” [39]-[42].
58 PN1126.
59 Exhibit “A9” [4(o)].
60 Attachment “CB2” to Exhibit “A1”.
61 Exhibit “A9” [4(t)] , Exhibit “A1” [50].
62 Exhibit “A9” [4(v)].
63 Attachment “TMF11” to Exhibit “R1”.
64 Attachment “TMF12” to Exhibit “R1”.
65 Exhibit “R2” [26].
66 Exhibit “R2” [27].
67 Exhibit “R2” [229].
68 Exhibit “A3” (Statutory Declaration by Maria Harris) [8].
69 PN470.
70 PN788.
71 Attachment “CB3” to Exhibit “A1”.
72 PN 1106.
73 Attachment “TMF13” to Exhibit “R1”.
74 Exhibit “R1” [89].
75 Exhibit “A1”, [56], Exhibit “A1” [59].
76 PN1658-1659.
77 Exhibit “A9” [4(w)].
78 Attachment “CB4” to Exhibit “A1”.
79 PN1966
80 Exhibit “A9” [4(u)] , Exhibit “A1” [60].
81 PN1674-1675
82 Exhibit “A9” [4(y)].
83 Exhibit “R1” [91].
84 Exhibit “R1” [91] - [94].
85 PN1264.
86 Exhibit “R1” [98].
87 Exhibit “A1” [63].
88 Exhibit “R1” [99].
89 Exhibit “A9” [4(z)], Exhibit “A1” [64].
90 Exhibit “A9” [4(aa)].
91 Attachment “CB5” to Exhibit “A1”.
92 Exhibit “R2” [37] - [40].
93 Exhibit “A9” [4(cc)], Exhibit “A1” [71], Exhibit “A5” [6], Exhibit “R2” [43] - [45], Exhibit “R3” [26] - [27].
94 Exhibit “R3” [31]
95 Exhibit “A9” [4(dd)-(ee)], Exhibit “A1” [73]-[77], Exhibit “A5” [10], Exhibit “R2” [52], Exhibit “R3” [32].
96 Exhibit “A5” [14] & [15].
97 Exhibit “A5” [15] - [17], PN1507.
98 Exhibit “R2” [53].
99 Exhibit “A5” [18], Exhibit “A4” [5] - [6].
100 Exhibit “A4” [9], Exhibit “R3” [36].
101 Exhibit “A4” [12], Exhibit “R3” [61] - [62].
102 Exhibit “A4” [13].
103 Exhibit “R2” [59].
104 Exhibit “R3” [38] - [40].
105 Exhibit “A9” [4(ff)], Attachment “CB5” to Exhibit “A1”.
106 Exhibit “A9” [4(gg)], Exhibit “A1” [79]-[80], Exhibit “R2” [63] - [64].
107 Attachment “CB6” to Exhibit “A1”.
108 Exhibit “R2” [72].
109 Exhibit “R2” [80].
110 Exhibit “A9” [4(hh)].
111 Exhibit “R2” [81].
112 Exhibit “R2” [82].
113 Exhibit “R2” [83].
114 Exhibit “A9” [4(hh)].
115 Exhibit “R3” [45] - [46].
116 Exhibit “A9” [4(ii)], Attachment “CB7” to Exhibit “A1”, Exhibit “R3” [47].
117 PN453-455.
118 Exhibit “A9” [4(jj)], Attachment “CB8” to Exhibit “A1”.
119 Exhibit “A1” [89].
120 Exhibit “R3” [50].
121 Exhibit “R3” [51].
122 Exhibit “A9” [4(jj)], Exhibit “A1” [90], Attachment “CB9” to Exhibit “A1”.
123 Sayer v Melsteel[2011] FWAFB 7498.
124 Exhibit “A8” [11].
125 Exhibit “A8” [15] - [22].
126 Exhibit “A8” [23] - [32].
127 Exhibit “A8” [33] - [39],
128 Exhibit “A8” [40] - [45].
129 Exhibit “A8” [82] - [88].
130 Exhibit “R5” [51] - [55].
131 Exhibit “R5” [40] - [50].
132 Exhibit “R5” [56] - [60].
133 Exhibit “A8” [49].
134 Exhibit “A8” [48].
135 Exhibit “R5” [53].
136 Exhibit “R5” [54].
137 1444/98 N Print Q9292 [1988] AIRC 1592.
138 Attachment “JS-2” to Exhibit “R3”, p. 7 and 9.
139 Attachment “JS-2” to Exhibit “R3”, p. 40.
140 Attachment “JS-2” to Exhibit “R3”, p. 41.
141 Attachment “JS-2” to Exhibit “R3”, p. 42.
142 Attachment “JS-2” to Exhibit “R3”, p. 43.
143 Attachment “JS-2” to Exhibit “R3”, p. 43.
144 Attachment “JS-2” to Exhibit “R3”, p. 56.
145 Attachment “JS-2” to Exhibit “R3”, p. 56.
146 Attachment “JS-2” to Exhibit “R3”, p. 57.
147 Attachment “JS-2” to Exhibit “R3”, p. 13.
148 Exhibit “A8”, [17].
149 Annetta v Ansett Australia Ltd(2000) 98 IR 233
150 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
151 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
152 Ibid.
153 Exhibit “A9” [4(jj)], Exhibit “A1” [90], Attachment “CB9” to Exhibit “A1”.
154 PN396.
155 PN397.
156 Exhibit “A8”, [19].
157 Exhibit “R1”, [49], PN 411.
158 PN607-610.
159 PN1629.
160 PN1629.
161 PN1631.
162 PN1632-1634 and PN1690-1693.
163 PN1637.
164 PN1638.
165 PN1653-1655.
166 PN1699.
167 PN1589.
168 (1938) 60 CLR 601.
169 PN734-737.
170 Exhibit “A9” [76].
171 Exhibit “A9” [77].
172 Exhibit “A9” [78].
173 Exhibit “A1” [5], PN 1404.
174 Exhibit “A1” [96].
175 Exhibit “A1” [95].
176 Exhibit “A1” [98].
177 Exhibit “A1” [94].
178 Attachment “CB9” to Exhibit “A1”.
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