Claude Federici v Kmart Australia Ltd T/A Kmart Fountain Gate

[2013] FWC 9587

[2013] FWC 9587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Claude Federici
v
Kmart Australia Ltd T/A Kmart Fountain Gate
(U2013/11951)

COMMISSIONER GREGORY MELBOURNE, 12 DECEMBER 2013

Application for relief from unfair dismissal.

Introduction

[1] Mr Claude Federici has been employed as a member of the Retail Team at Kmart Australia Ltd’s Fountain Gate store since 17 October 2007. There have been no significant employment issues involving him in that time, and he has on occasions received compliments from customers. However, it is alleged that on 4 July 2013 he harassed another Kmart employee, Mr Pawan Vashisht, in a way that amounted to a serious breach of Kmart’s Equal Opportunity Policy and the Code of Conduct employees working at Kmart commit to.

[2] The harassment is alleged to have occurred by way of Mr Federici copying or mimicking Mr Vashisht’s accent. This is claimed to have occurred on several occasions while the two men were working in an apparel stores area that afternoon. It continued despite Mr Vashisht and another employee asking Mr Federici to stop, and warning him about the ramifications of continuing. Mr Vashisht is employed by Kmart as an Asset Protection Specialist. He was very upset by the way in which he was treated by Mr Federici.

[3] Mr Federici was stood down later that day, on full pay, while the alleged incident was investigated. On 14 July his employment with Kmart was terminated after the conclusion of that investigation, and following a meeting with the Zone Manager responsible for the Fountain Gate store.

[4] Mr Federici now claims he was unfairly dismissed and relies, in particular, on two grounds in support of his application. Firstly, he consistently denies the alleged harassment ever occurred. Secondly, he submits that even if it did occur, Kmart’s decision to terminate his services was disproportionate, particularly given its response to another matter that occurred in the store earlier this year.

[5] Kmart argues in response that the evidence supports its view of what occurred. It submits its response was appropriately “calibrated” given the serious nature of the behaviour. It rejects any suggestion its approach was disproportionate when compared to its response to the other incident.

The Issues to be Decided

[6] The particular issues to be determined in the context of the present application are:

• What conclusions of fact are to be made about what occurred at the Fountain Gate store on the afternoon of 4 July 2013?



• In the event it is concluded the harassment did occur, was Kmart’s response appropriate and proportionate, particularly given its response to the incident that occurred earlier in the year?



• Can the dismissal be considered to be harsh, unjust or unreasonable given the criteria in section 387 of the Fair Work Act 2009 the Commission must take into account?

The evidence and submissions

The events at the Fountain Gate store on the afternoon of 4 July 2013

[7] The evidence and submissions of the parties are in stark contrast about what occurred when Mr Federici, Mr Vashisht and Ms Knight were in the storeroom on the afternoon of 4 July 2013. Mr Federici absolutely denies he engaged in any of the harassment alleged and he has consistently maintained this position from the time the incident was first raised with him.

[8] His evidence is:

“At the time of the alleged incident I was at the back of the store at apparel where we remove clothing and items from delivery boxes. I was engaged in conversation with Nerissa Knight and she was explaining to me what work I needed to do as she was about to finish her shift.

I then heard Pawan call out my name in a loud voice. I looked around and went up to him and said words to the effect of "how are you". I touched him on the shoulder and I said words to the effect of "you are alright; I like you" and in response Pawan said words to the effect of "I like you too". I then continued talking about work with Nerissa.

Whilst Nerissa was explaining the crates we had to bring down and what clothing I had to take out, Pawan asked me if I had left some keys there. I replied "No, it wasn't me. It was Sam." Sam was another Kmart employee who was also working out the back at that time. I believe Pawan then punched the name into his computer laptop or I-pad.

Nerissa opened the big door for him where we load the trucks and he asked me if I could mind his lap-top and not touch anything. I agreed to hold it for him and he went outside to check if the big dump master bin was locked or not. Once this was done he came back in and I gave him back his lap-top.

Nerissa and I walked back to the boxes to continue removing stock. The manager at the time, Ashley, came out and talked with Nerissa. Sam returned and I informed him that Pawan might be looking for him as he left the keys at the back. The manager left. I went upstairs. Nerissa followed me, and I said "I'll see you the next day". She replied "No, as I have Friday off, and I said "bye".

Later I was at the back hanging clothing and then I went to the cardboard crusher bin. At that time I was approached and requested to attend the office as referred to in paragraph 7 above.” 1

[9] Mr Federici did not provide further evidence to support his testimony about what occurred on the day. However, he submits he had no prior history of behaviour of this kind and there was nothing in his employment history with Kmart to suggest he was likely to act in this way. Those submissions are not contested. He also submits he is of Italian descent and has suffered in the past from “racist taunts and behaviours” 2 and is accordingly aware of the impact such behaviour can have. Mr Federici also wanted to view any CCTV footage of the incident in the hope this would assist in determining what actually occurred. However, cameras did not cover the area in question.

[10] Kmart relies, firstly, on the evidence of Mr Vashisht in support of what occurred in the storeroom on 4 July. He is responsible for a variety of security issues at a number of Kmart stores and has an office at the Fountain Gate store as it is his “base store.” On 4 July he arrived at the Fountain Gate store at approximately 2:00pm and commenced his duties. He entered the stock room later that afternoon and saw Ms Knight. He asked if she could open a rear door so he could make some necessary checks outside the loading dock. After making this request he said Mr Federici, “commenced to repeat my exact words or statements to Ms Knight in a loud Indian accent which was clearly distinguishable from his normal or ordinary manner of speaking.” 3 He said Mr Federici then repeated his request in the same accent and Mr Vashisht then said “Stop it, it’s not funny.”4

[11] Mr Vashisht said Mr Federici continued to speak in this manner, despite Mr Vashisht indicating in the presence of Ms Knight this behaviour was not acceptable and could “get you in big trouble.” 5 Mr Vashisht stated:

“During this interaction Mr Federici was totally disrespectful of my role, my racial and ethnic background and continued to carry on without regard to my requests to stop or the feelings hurt and humiliation I was feeling. I felt insulted and powerless.” 6

[12] Mr Vashisht said at this point he decided to continue with his required checks and other duties and to try and ignore Mr Federici. However, in the process of returning to his office he heard Mr Federici continue to copy and mock his accent. He also heard Ms Knight ask Mr Federici to stop. Mr Vashisht said:

“I then proceeded to my office as intended. I shut the office door and covered my eyes and forehead whilst I thought about what just occurred as I felt hurt, insulted and embarrassed as a result of the behaviour that I had been subjected by Mr Federici.” 7

[13] Mr Vashisht said he remained in his office for about 10 minutes and then went to see the Store Manager. However, she was not in her office and he spoke to a Line Manager, Ms Ashlee Ikin, who raised the incident as it had already been brought to her attention by Ms Knight. He then told Ms Ikin what had occurred and was asked whether he wish to raise the matter with the Store Manager. He said he intended to do so and after speaking with her was told she would seek advice from “Human Resources about how to deal with my complaint.” 8 He subsequently received a phone call from the State HR manager and later formally emailed a complaint to the Store Manager. He also rang his Manager to inform him what had taken place and to advise he would be leaving work early because he felt unable to continue working that day. He was subsequently contacted by Ms Louise Eckel, an HR advisor from Kmart, appointed to investigate the complaint.

[14] Kmart also relies on the evidence of Ms Nerissa Knight. She works as a replenishment team member at the Fountain Gate store and is a long-standing Kmart employee. She went to the back stockroom at around 2:00pm on 4 July to work with Mr Federici who was assisting her in unpacking some apparel. Mr Vashisht was conducting a security check list audit in the vicinity. She then heard Mr Federici talking to Mr Vashisht in an Indian accent and heard him repeat a question Mr Vashisht had asked her in that same accent. This occurred on three or four occasions. She said Mr Vashisht asked Mr Federici to stop talking in that way, but he continued. She also asked Mr Federici to stop mimicking Mr Vashisht’s accent, however, he continued. She then heard Mr Federici say to Mr Vashisht he liked him and was only mucking around. Mr Federici then said to her again, in an Indian accent, he didn’t think Mr Vashisht was happy with him. She said Mr Vashisht heard this conversation and said he would be reporting the incident to the Store Manager. Mr Vashisht then left the stockroom.

[15] A Line Manager, Ms Ashley Ikin, then entered the area and Ms Knight told her there may be an issue regarding the two men. She then gave Ms Ikin an outline of what had occurred. She was subsequently contacted by Ms Louise Eckel as part of the investigation of the formal complaint.

[16] The evidence of Ms Ashley Ikin indicates she was told by Ms Knight about an incident that occurred between Mr Vashisht and Mr Federici on the afternoon of 4 July while she was working as a Store Inventory Manager. Miss Knight told her Mr Federici was mimicking Mr Vashisht’s accent and she had asked him to stop but he didn’t. She then went to see Mr Vashisht, who told her Mr Federici was mimicking his accent; that he had asked him to stop, but he continued.

[17] Ms Louise Eckel is employed as a Human Resources Adviser with Kmart and was the person appointed to investigate Mr Vashisht’s complaint. She met with him on 9 July and with Ms Knight and Mr Federici the following day. Mr Federici was accompanied by a Shop, Distributive and Allied Employees’ Association (SDA) official during this meeting. She said Mr Federici continued to deny the allegations and said he could not recall speaking to Mr Vashisht on the day in question. Taking into account all the available information, including the interviews she had conducted, Ms Eckel concluded that “on the balance of probabilities” 9 the allegations in respect of Mr Federici could be substantiated. She subsequently met with him on 12 July to communicate her findings to him.

An appropriate and proportionate response

[18] Mr Federici relies on an earlier incident, and Kmart’s response to that incident, to submit its response to its findings about his behaviour were not appropriate or proportionate. He submits other options such as retraining, counselling, or a final warning could and should have been considered, assuming Kmart had come to the view the behaviour in question had occurred.

[19] Mr Federici was involved in the earlier incident, although there is no suggestion he was at fault. Another employee made some sexually explicit comments to him, based on material contained on the front cover of a magazine on sale in the store. The comments were overheard by a customer who brought the matter to the attention of the Customer Service Manager. Mr Federici submits the matter was investigated without further action being taken. He states he was subsequently told by the Store Manager words to the effect of “people here say and do stupid things.” 10

[20] Mr Federici relies on Kmart’s response to this situation to submit its response to the alleged incident involving him and Mr Vashisht was inappropriate and disproportionate. Reference was made to the Full Bench decision in the matter of Mr Wayne Darvell v Australian Postal Corporation 11(Darvell) and the extracts in that decision from the decision of Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd12(Sexton).

[21] Ms Jodie Sands, the Store Manager at Fountain Gate confirmed a customer had mentioned to the Customer Service Manager that she had overheard an inappropriate conversation between two employees. However, a formal complaint was not actually made by either the customer or Mr Federici. Both the Customer Service Manager and Miss Sands subsequently met with the employee in question. Miss Sands said the employee acknowledged having made an inappropriate comment and was subsequently reminded about the appropriate values and behaviours Kmart expects, and her obligations under the Kmart Code of Conduct. It was decided on this basis that no further action was required to be taken. Ms Sands said she also met with Mr Federici at his request in regard to the incident. He indicated there had been a customer complaint but did not provide any further details about what occurred, nor did he wish to be seen as the instigator of any issues in conjunction with the incident.

[22] Kmart also relied on the Full Bench decision in Australian Postal Corporation T/A Australia Post v Nick Rashiti 13(Rashiti), which also made reference to the decision of Vice President Lawler in Sexton. It referred in particular to paragraph 36 of that decision.

[23] In its submission the incident involving Mr Federici and Mr Vashisht was not comparable to what occurred in the context of the earlier incident. There was, for example, no complaint received in the earlier incident; it involved a single comment only and was not repeated, and there was no formal process of investigation initiated. The employee involved also acknowledged she had been at fault in making the comment and had committed to not repeat the behaviour.

[24] Kmart also submits its policies in regard to equal opportunity and harassment matters are well known and understood by employees. In this context it referred to an employee Code of Conduct all employees commit to that deals with discrimination and equal opportunity. 14 Employees are also required to sign an equal employment opportunity acknowledgement which confirms they have viewed an equal opportunity DVD and read the equal opportunity policy and grievance procedure document.15

[25] A series of Kmart employee behaviour standards, which make reference to harassment of other people at work, are also signed by employees when they accept their offer of employment. 16

[26] Kmart also submits Mr Federici had been provided with opportunities, including in the final discussion he had with the Zone Manager - North Central Victoria, Mr Stephen Ryan, to provide anything that might be considered by way of explanation or mitigation of his behaviour. However, apart from his continued denials about the behaviour ever occurring nothing further was forthcoming.

Consideration

[27] As indicated, the first issue to be determined concerns the conclusions of fact to be made about what occurred on the afternoon of 4 July in the apparel store room at the Fountain Gate store. Whilst there are some minor discrepancies between the parties about matters of detail there is a stark divergence about what occurred in regard to the behaviour at issue. Mr Federici says it simply did not occur, although the submissions made on his behalf provide no explanation as to why such divergent views might exist. Kmart concluded on the balance of probabilities, following its investigation of the alleged incident, the behaviour did occur and submits, at best, Mr Federici is being less than fulsome about what actually occurred.

[28] I am satisfied the evidence of the employer is to be preferred. Mr Vashisht and Ms Knight appeared as credible and convincing witnesses who provided generally consistent accounts of what occurred. Both indicated they heard the mimicking accent used by Mr Federici on several occasions. Both said at different points they asked him to stop speaking in that way. Both also told him there could be repercussions if he continued. They also provided consistent versions of what occurred, both during the process of investigation carried out by Kmart and in the evidence provided in these proceedings. Mr Vashisht also appeared genuinely upset by what had occurred. Their subsequent conversations with senior staff in the store also provided contemporaneous support from those employees about the events of that afternoon.

[29] Both Mr Vashisht and Ms Knight also indicated they had previously had a cordial, if not a friendly relationship with Mr Federici, and there was no suggestion provided in either the evidence or submissions of any reason why they might be concocting or fabricating the evidence they provided.

[30] It is also acknowledged there was no evidence based on his past behaviour to suggest Mr Federici might act in this way. The behaviour complained of appears to be a complete “one off” with no evidence pointing to similar behaviour in the past. Mr Federici also submitted he had enquired as to whether CCTV coverage of the store area was available as a means of confirming what had occurred, but cameras were not placed in that area and no coverage was available. At the same time there was no evidence or submissions to suggest the absence of CCTV footage was a ruse or device to cover up or hide what actually occurred.

[31] Nevertheless, I am satisfied Kmart’s version of what occurred in the store area on 4 July is to be preferred. I have come to this conclusion, in particular, because I can find no reason to doubt the consistent and credible evidence of Mr Vashisht and Ms Knight, and no explanation as to why they would be anything other than candid in the evidence they provided. The same cannot necessarily be said of Mr Federici.

[32] The second issue to be determined concerns whether Kmart’s reaction to Mr Federici’s behaviour represents an appropriate and proportionate response. Mr Federici relies, in particular, on an earlier incident that has been detailed already in this decision to suggest Kmart’s response in that situation was totally different to its reaction in the present matter. He relied on the earlier cited decision of a Full Bench in the matter of Darvell, in which the Applicant submitted a decision at first instance had not taken relevant account of the fact other employees were also engaged in the same conduct but not dismissed, in circumstances not materially different from those involving Mr Darvell.

[33] The Full Bench made reference in that matter to a decision of Vice President Lawler, in Sexton v Pacific National (ACT) Pty Ltd when he stated:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been ‘harsh, unjust or unreasonable ...’” 17

[34] However, as Kmart emphasised Vice President Lawler continued to indicate in that decision:

”[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CE(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” 18

[35] I am not satisfied that in considering the two incidents it can be said to be comparing “apples with apples.” In the first place they are two separate events which occurred some months apart, unlike the Darvell matter where the submission was that similar behaviour was occurring at the same time. (It is also significant that the Full Bench in Darvell rejected any error in the decision at first instance on the basis of inconsistent treatment.)

[36] Secondly, limited evidence was provided about what actually occurred in the earlier incident. For example, neither the customer involved nor the offending employee was called to give evidence. It also appears in regard to the earlier incident no specific complaint was made by either Mr Federici, or the customer. It also involved a single, albeit ill-advised comment, that was not repeated. In addition, when brought to the employee’s attention she apparently acknowledged the behaviour was inappropriate and committed to ensure it would not be repeated. No such acknowledgement or commitment exists in regard to the latter incident.

[37] It is also relevant in this context to note the Full Bench’s endorsement of the following extract from the decision at first instance in the matter of Darvell v Australia Post 19 when Deputy President Hamilton stated:

“...different employees have different work histories, respond in different ways when issues of performance are raised with them, the nature of the breach may be arguably different because of different jobs and the context, and other matters. These matters explain what appears on the surface to be an inconsistency of approach to some degree.” 20

[38] In this context, one clear distinction, amongst others, appears to involve the age and experience of the employees involved in the two Kmart incidents. It can be presumed an older, more mature employee, would have a greater awareness of the significance of inappropriate behaviour they might be involved in.

[39] I am also satisfied Mr Federici’s continuing denials about the alleged behaviour ever occurring is relevant in that it compounded the significance of the issue as far as Kmart is concerned. It carried out an investigation into what occurred and concluded, on the balance of probabilities, Mr Federici had acted in the way complained of. It then met with him to discuss these findings and to provide him with the opportunity to offer anything in response that might be considered by way of explanation or mitigation. However, his response is simply to continue to deny the incident ever occurred. It was submitted on his behalf that these responses were in part motivated by advice received from his union representative who accompanied him in these meetings. However, evidence from those representatives was not called and, in any case, Mr Federici has maintained his denials up to this point.

[40] Kmart is accordingly confronted with a situation where it has firstly concluded, after reasonable investigation and on the balance of probabilities, that the behaviour in question took place. It then faces a situation where the employee involved continues to deny the behaviour ever occurred. This denial must clearly act to compound the significance of what occurred when Kmart is considering its response. By contrast, for example, if Mr Federici had admitted the behaviour occurred, and acknowledged fault on his part, Kmart’s response might well have been different, as the evidence of Mr Ryan appeared to suggest.

[41] I now turn to consider Mr Federici’s dismissal under the criteria in section 387 of the Fair Work Act 2009 that I must take account of.

(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);

[42] The Applicant handed up the decision of Northrop J. in Selvachandran v Peteron Plastic Pty Ltd 21 where His Honour stated at 373 a valid reason is one which is:

“...sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...” 22

[43] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was emphasised in the Full Bench decision handed down by this Tribunal’s predecessor in the matter of Rode v. Burwood Mitsubishi 23 at paragraph 19 with the Full Bench held:

“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 24

[44] The existence or not, of a “valid reason” is obviously also an important issue in any unfair dismissal application and often determinative. In the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 25 a Full Bench of the Commission made the following statements about the importance of “valid reason.”

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 26

[45] I have adopted that reasoning in these decisions in my consideration of the issue of “valid reason”. I am, in turn, satisfied Kmart had a valid reason to terminate Mr Federici’s employment. Those circumstances have been canvassed, in large part, in the preceding paragraphs of this decision. As indicated, I am satisfied the alleged behaviour occurred. I am satisfied it has a significant effect on Mr Vashisht. I am satisfied Mr Federici should have been aware of the significance of his behaviour. His evidence indicates he has also been subject to racial taunts in the past and understands their impact. He also committed to various Kmart policies and procedures which emphasise the significance of its equal opportunity and harassment policies, the importance of avoiding behaviour that might offend in this regard, and the consequences of such behaviour. It is acknowledged that employees can commit to these policy documents without necessarily understanding their content or significance. However, Mr Federici’s commitment in this case was more than just a “one off”. He provided a signed acknowledgement to a “Working at Kmart – Code of Conduct” document, which contained detailed references to diversity and equal opportunity policies and the consequences of breach of that code. In August 2011 he provided a signed acknowledgement that he had:

“ viewed Kmart’s Equal Employment Opportunity DVD; and

• read Kmart’s new Equal Opportunity Policy and Grievance Procedure document (“EO policy”).” 27

[46] That document continued to indicate:

“I acknowledge that I am required to comply with the EO policy at all times during my employment.

I also acknowledged that this requirement extends to any Kmart function or activity (or function or activity I am attending as a Kmart representative or where I can be identified as a Kmart employee) that occurs during or after normal working hours. I also understand that if I breach the EO Policy that this may result in disciplinary proceedings up to and including the termination of my employment.” 28

[47] In October 2007, in conjunction with his signed acceptance of employment offer, he also completed a signed acknowledgement of “Kmart Employee Behaviour Standards,” including the fact that employment could be terminated without notice for reasons including “harassment of another person at work.” 29 In all the circumstances I am satisfied Kmart had a valid reason to terminate Mr Federici employment.

(b) whether the person was notified of that reason

[48] Mr Federici was notified of the reason for his termination, and this fact is not at issue.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[49] Mr Federici was provided with the opportunity to respond to the reasons why Kmart believed his conduct warranted his termination. Again, this matter was not an issue in the proceedings.

(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;

[50] Mr Federici had a support person involved in various discussions with his employer about the matters that eventually led to his dismissal. This included on one occasion a colleague at work and on other occasions representatives from the SDA.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

[51] This consideration is not relevant in the present matter as the issue that led to termination involved the employee’s conduct rather than his unsatisfactory work performance.

(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 following in effecting the dismissal;

[52] Kmart is a large employer with specialist human resource management expertise. There is nothing that is required to be considered in this context.

(h) any other matters that the FWC considers relevant.

[53] The only other matter that was raised as being relevant in this context concerned the issue of the proportionality of Kmart’s response to what occurred. I have already dealt with this issue earlier in this decision.

Conclusion

[54] In conclusion, having considered all the evidence and submissions in this matter, and the considerations in the Fair Work Act 2009 I am required to have regard to, I am not satisfied Mr Federici’s dismissal was harsh, unjust or unreasonable. The application is dismissed.

Appearances:

E Tueno of Counsel and P LaGreca of Taylor & Preston Lawyers on behalf of the Applicant.

M McKenny of Counsel and G Taylor of Lander & Rodgers on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

4 and 5 December.

 1   Exhibit T1 at para 19.1-19.6

 2   Ibid at para 18

 3   Exhibit M14 at para 20

 4   Ibid at para 22

 5   Ibid at para 24

 6   Ibid at para 26

 7   Ibid at para 29

 8   Ibid at para 33

 9   Exhibit M19 at para 32

 10   Exhibit T1 at para 9

 11   [2010] FWAFB 4082

 12   PR931440

 13   [2012] FWAFB 7423

 14   Exhibit M2

 15   Exhibit M3

 16   Exhibit M4

 17   PR931440 at [33] as quoted in [2010] FWAFB 4082 at [21]

 18   Ibid at [36] as quoted in [2012] FWAFB 7423 at [42]

 19   [2009] FWA 1406

 20   Ibid at [78]

 21 (1996) 62 IR 371; [1995] IRCA 333 (7 July 1995)

 22 (1996) 62 IR 371 at 373

 23   Print R4471

 24   Ibid at [19]

 25  [2011] FWAFB 1166

 26   Ibid at [24]

 27   Exhibit M3 at page 1

 28   Ibid

 29   Ibid at page 3

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