D Ryan v Target Australia Pty Ltd
[2014] FWC 8163
•27 NOVEMBER 2014
| [2014] FWC 8163 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
D Ryan
v
Target Australia Pty Ltd
(U2014/8322)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 27 NOVEMBER 2014 |
Application for relief from unfair dismissal – application dismissed.
[1] On 14 July 2014, Mr D Ryan (the Applicant) made application under s.394 of the Fair Work Act 2014 (the Act)for relief in respect of the termination of his employment by Target Australia Pty Ltd (the Respondent).
[2] The Applicant commenced his employment with the Respondent on 1 April 2011 as a Senior Systems Engineer in its platform services team. His role included the building, maintenance and repair of the Respondent’s network servers.
[3] His employment was terminated verbally by managers for the Respondent in a meeting on Monday, 30 June 2014. The termination was confirmed by letter of the same date, which stated:
“This letter is to confirm that your employment with Target has been terminated, with effect from Monday 30th June 2014, on the grounds discussed with you in our meeting on Monday 30 June 2014, in particular, your serious misconduct, including your breaches of the Code of Conduct.” 1
[4] The relevant conduct of the Applicant occurred in the workplace on Friday, 27 June 2014.
Issue for determination
[5] There is no dispute that the Applicant is a person protected from unfair dismissal (s.382 of the Act).
[6] Similarly, in relation to whether the termination was an unfair dismissal (s.385 of the Act), there was no dispute that:
• The Applicant had been dismissed (s.385(a) of the Act);
• The Small Business Fair Dismissal Code was not relevant (s.385(c) of the Act); and
• The dismissal was not a case of genuine redundancy (s.385(c) of the Act).
[7] However, there is a dispute as to whether the dismissal was harsh, unjust or unreasonable (s.385(c) of the Act). If the dismissal was harsh, unjust or unreasonable, it was an unfair dismissal. If not, the Applicant was not unfairly dismissed.
[8] The issue for determination is whether the termination was an unfair dismissal and was harsh, unjust or unreasonable.
Criteria for considering whether the termination was an unfair dismissal and was it harsh, unjust or unreasonable
[9] The relevant statutory matters which must be considered in determining whether a termination is an unfair dismissal and was it harsh, unjust or unreasonable are set out in s.387 of the Act:
“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.”
Evidence as to the circumstances leading to the termination of the Applicant’s employment
[10] The Applicant gave evidence in the proceedings. In addition a witness statement of Mr R Lane, a fellow employee of the Applicant, dated 27 June 2014 was admitted into evidence 2 in support of the Applicant on the basis that the Respondent elected not to cross-examine Mr Lane.3
[11] The Respondent brought evidence from:
• Mr J King –a Senior Systems Engineer;
• Mr I Dugandzic – Datacentre Services Team Leader and the Applicant’s immediate manager;
• Ms C Hunt – Human Resources Advisor; and
• Mr I Sharsi – IT Infrastructure Manager.
[12] In addition the Respondent tendered sworn affidavits of:
• Mr T Harrison – Systems Engineer;
• Mr A Mangion – End User Computing Manager; and
• Mr D White – IT Infrastructure Services Manager.
[13] Their affidavits were admitted into evidence 4 on the basis that the Applicant elected not to cross-examine them.5
[14] The conduct of the Applicant on 27 June 2014 had its genesis in the allocation to the Applicant of a task of rebuilding a server “like with like”. 6 The Applicant undertook and completed the work on 26 June 2014, requiring the whole day to complete the work.
[15] Mr King had been asked to check the Applicant’s work by Mr Mangion and Mr Dugandzic. He did so and sent Mr Mangion an email praising the Applicant’s work, not having detected the issue concerning the version of the operating system installed because he had “logged in remotely” to check the work. 7
[16] However, Mr Harrison was asked to perform backups on the system installed the previous day by the Applicant and early on 27 June 2014, discovered that the Applicant had installed “the wrong operating system”. 8 This was conveyed to Mr Mangion, Mr Dugandzic and Mr King, who, with Mr Harrison, discussed the issue and decided that the operating system needed to be re-installed to ensure it was the same system which was on the other three servers.9 Re-installation was necessary to ensure consistency of systems between the four servers in the “authentication environment”.10 The Applicant arrived at work after that discussion and decision.
The conduct of the Applicant on 27 June 2014
[17] Upon attending work on 27 June 2014, Mr Dugandzic engaged the Applicant in a conversation in the area of work-stations in which the Applicant and other employees worked about the installation by the Applicant of an “operating system on a server on the previous day”. 11 Mr Dugandzic indicated that he had been informed the incorrect version of the operating system was installed and told the Applicant that he “needed to re-install the correct operating system”.12
[18] The account of the discussion in the witness statement of the Applicant 13 was brief and sanitised. In cross-examination, the Applicant conceded that he had sworn at Mr Dugandzic.14 In the meeting of 30 June 2014, which resulted in the termination, the Applicant accepted that his behaviour was unacceptable15 and did not contest16 the fuller account of the discussion between him and Mr Dugandzic17 which was put to him in the meeting and which is reflected in the fuller account of the discussion in the evidence of the Respondent’s witnesses, Mr Dugandzic and Mr Mangion in particular.
[19] In his witness statement, the Applicant conceded that on two occasions, once in the work-station area and once in a meeting room to which Mr Dugandzic moved the discussion, Mr Dugandzic “demanded” that he undertake the re-installation and that he declined to do so. 18 In cross-examination the Applicant conceded that he had “refused” to undertake the work he was directed to do.19 He refused to do the work out of frustration because he did not believe the operating system needed to be re-installed because he believed the differences in the two systems were minimal and he had not been consulted as the “subject matter expert” regarding the decision to re-install the system.20
[20] The Applicant portrayed the interaction between Mr Dugandzic and himself as one of Mr Dugandzic aggressively demanding the re-installation of the operating system that was installed on the previous day by the Applicant and not entering into any discussion. The evidence of Mr Lane is that Mr Dugandzic commenced the discussion by congratulating the Applicant “on his work efforts of the previous day but also broke the news” of the installation of the wrong version of the software and advising the Applicant that he needed to “fix this problem”. 21 Mr Lane’s evidence was that when the tone of the discussion between the Applicant and Mr Dugandzic escalated into an argument, he felt the argument was “accusatory and directive” toward the Applicant.22
[21] Mr Dugandzic 23 and Mr Mangion24 in their evidence provided more extensive and consistent accounts of the interaction between Mr Dugandzic and the Applicant in the area of the work-stations. I accept their evidence. It is consistent with that of Mr King and the recounting of the events in the Discussion Record. The Applicant did not contest25 that fuller account of the discussion between him and Mr Dugandzic26 which was put to him in the meeting of 30 June 2014.
[22] On the basis of the evidence of the discussion in the work-station area, I find that:
• Mr Dugandzic on 27 June 2014 was not aggressive toward the Applicant nor critical of his work and explained the reasoning for his decision having the Applicant re-install the operating system; 27
• The Applicant conducted himself in a loud and “aggressive” manner, replete with inappropriate language and was disrespectful and dismissive of Mr Dugandzic, his immediate manager; 28
• The Applicant’s conduct was inconsistent with the requirements in the Respondent’s Code of Conduct that employees “treat everyone that [they] interact with in the course of [their] employment with dignity, courtesy and respect”; 29 and
• In the work-station area, the Applicant twice refused to give effect to a reasonable and lawful direction by Mr Dugandzic. 30
[23] Mr Dugandzic then moved his discussion with the Applicant to a meeting room. He again requested the Applicant to perform the re-installation, a request which was again “declined”. 31 The Applicant “continued to challenge the decision and refused to perform the work” Mr Dugandzic had asked him to do32 and “became louder and more aggressive”.33
[24] The persistent and repeated refusal of the Applicant to undertake the re-installation was inconsistent with his duty as an employee and the obligation in his 17 March 2011 confirmation of appointment which sets out as a general obligation of employment to “comply with all lawful orders and instructions of the Company”. 34
[25] As with his evidence in relation to the discussion with Mr Dugandzic, the Applicant’s witness statement in respect of his interaction was brief and sanitised. That evidence was that, upon leaving the portion of the meeting with Mr Dugandzic held in the meeting room, the Applicant approached Mr King, “who was sitting at his desk and asked why he had not approached me about the supposed operating system installation issue”. Mr King “denied that he had said anything” to Mr Dugandzic. 35 This evidence as to the interaction went no further, other than recounting that the Applicant “did not touch” Mr King but put his “hand on the back of John King’s chair as I leant down to speak to him”. This evidence was consistent with what the Applicant put to the Respondent in the 30 June 2014 meeting in relation to Mr King. In cross-examination, the Applicant elaborated, conceding that he did call Mr King a “ f... prick”.36
[26] Mr King’s evidence was more fulsome. It was that, after leaving the meeting with Mr Dugandzic, the Applicant headed towards Mr King, stood over him as a he sat at his desk, with one hand on Mr King‘s chair and using the other arm to grab and twist Mr King’s arm. The Applicant leant into Mr King’s ear and in a loud whisper said “f... liar, you don’t know what you are talking about. You should have come to me first you f... prick”. 37
[27] I prefer the fuller account of the interaction reflected in Mr King’s evidence and find that the Applicant did hold Mr King’s arm whilst leaning over him to whisper in his ear. The added physical contact recounted by Mr King was consistently stated in his reporting of the incident and is consistent with Mr King’s distressed state after the incident, 38 including his indication that he would resign his employment if the Applicant remained in the workplace39 a position he maintained in the proceedings in the event that the Applicant were to return to the workplace,40 a position he conveyed to three managers.41 I accept that the physical aspect of the interaction was not an assault in the sense that inflicted physical injury upon Mr King, who elaborated on the contact in his oral evidence, stating that the contact was noticeable but not extreme.42 Rather, it was contact which reinforced the aggressive and intimidating verbal behaviour and was a clear invasion of Mr King’s personal space, with one hand on the back of the chair and leaning to whisper in Mr King’s ear. The physical actions and the comments made to Mr King by the Applicant were threatening, intimidating and spiteful. The Applicant’s conduct toward Mr King was inconsistent with the requirements in the Respondent’s Code of Conduct that employees “treat everyone that [they] interact with in the course of [their] employment with dignity, courtesy and respect”.43
[28] After his interaction with Mr King, the Applicant left the workplace, after advising Mr Dugandzic that he was “going home sick for the rest of the day”. 44 He returned at noon, with the intention of having a “follow-up discussion” with Mr Dugandzic. Mr Shamsi approached the Applicant and asked him to “attend a meeting” with himself, Mr White and Mr Dugandzic.45 The Applicant’s evidence was that in that meeting, he apologised to Mr Shamsi, Mr White and Mr Dugandzic, later apologised to Mr Mangion46 and intended to apologise to Mr King, but “did not get the opportunity” to do so because Mr King had left the workplace.47 The evidence of Mr White, Mr Dugandzic and Mr Shamsi was that an apology was made to Mr Dugandzic48 and the Applicant would apologise to Mr Mangion49 but no offer was made to apologise to Mr King.50 The Applicant did apologise to Mr Mangion.51 No apology was made to Mr King.
Prior conduct
[29] It is accepted by the Respondent that the Applicant’s performance ratings in 2011, 2012 and 2013 were at the level of “Meets Expectations” 52 and that the Applicant, whilst subject to discussions about some previous conduct, had not previously been subject to formal processes in relation to his conduct during the course of his employment.53
[30] Whilst the Applicant had not been previously warned in respect of conduct of the type of 27 June 2014, there was evidence from his managers and work colleagues that he had exhibited some elements of that conduct previously during his employment of a less extreme nature 54 Mr Mangion had spoken “informally” to the Applicant about “this issue on a number of occasions”.55 The Respondent’s witnesses were not challenged in respect of that evidence.
The 30 June 2014 meeting, at which the Applicant was advised of the termination of his employment
[31] The Applicant was offered and declined the Respondent’s “offer to bring a support person to the meeting” of 30 June 2014. 56
[32] In the meeting of 30 June 2014, the Respondent – through Mr Dugandzic and Ms Hunt – advised the Applicant that the purpose was to discuss the events of 27 June 2014 and determine what action should be taken in respect of them. 57 The allegations concerning the Applicant’s conduct on 27 June 2014 were “read out” to him58 and he was provided with a copy of them during the course of the meeting.59
[33] Issues concerning prior conduct were raised with him 60 but the Applicant “was not prepared to discuss” them61 (with one exception).
[34] The Applicant responded, stating that he accepted that his behaviour on 27 June 2014 was “unacceptable”. He denied grabbing Mr King and said “he did not intend to man-handle” him. “He did not offer any explanation of why he had behaved in an unacceptable manner.” 62
[35] Ms Hunt and Mr Dugandzic left the meeting and spoke to Ms M Petrovski, the Respondent’s Workplace Relations Advisor. The seriousness of the conduct and the appropriateness of termination were discussed. 63
[36] The meeting with the Applicant reconvened and the Applicant was told that the Respondent was considering termination and had invited the Applicant to provide reasons why he thought dismissal should not be the outcome. 64 The Applicant responded “that he had apologised and that he felt his past behaviour had been good” and it would be fair to give him a “second chance”.65
[37] The meeting broke again and Mr Dugandzic and Ms Hunt decided that “dismissal was appropriate”. 66
[38] The meeting with the Applicant reconvened and the Applicant was advised of the termination decision for “serious misconduct, effective immediately”. 67
[39] Two versions of a Discussion Record in relation to the meeting of 30 June 2014 were tendered in evidence. The first, tendered by the Applicant 68 was what was described in evidence as a template and pre-populated document69 which set out personal details (including a blank space for the team member’s witness’ name), an account of the reasons for the meeting, the Applicant’s conduct, which was read to the Applicant during the meeting,70 a statement of business expectations setting out what was expected of the Applicant “moving forward”, a section for the team member’s response which was blank, a section dealing with the discussion outcome, with boxes setting out various outcomes, none of which was crossed, an action plan which was blank, a section headed “Consequences of not achieving standards and/or action plan outcomes” which was populated with consequences which suggested ongoing employment – disciplinary action in the event that standards set out the action plan outcome were not met, sections providing for a signature by the employee and the relevant managers and blank section in respect of a review meeting. This version of the Discussion Record was provided to the Applicant during the meeting.71
[40] The second version 72 differed from the first in that:
• “Declined offer” was written in the space for the team member’s witness’ name;
• The section dealing with the team member’s response had a notation “see attached”. Two handwritten pages recording the Applicant’s response to the allegations raised in the reasons for the meeting section;
• “Termination of Employment” was crossed in the Discussion outcome section;
• The consequences set out in the “Consequences of not achieving standards and/or action plan outcomes” section were crossed out; and
• “Declined to sign” was written in the space for the team member’s signature and the management signatures were added.
[41] The Applicant placed emphasis on the differences between the two documents. I do not find significance in the differences.
[42] In my view, the first document was prepared for the conduct of the discussion with the Applicant. The second was the first document, as completed following the meeting at which the allegations against the Applicant were put to him, his response given and a decision as to the outcome – in this case termination of employment – was made once the Respondent’s managers had considered the response and having advised the Applicant of the possibility of termination and hearing and considering his response to that outcome. Whilst the pre-populated section dealing with expectations “moving forward” and the pre-populated consequences section were based on continuing employment, and were prone to cause confusion, the evidence was that no decision had been taken as to an outcome prior to the meeting, 73 evidence which was supported by the absence of any pre-population of the “Discussion outcome section” of the first version of the document.
[43] The Applicant argued that the disciplinary procedure used by the Respondent was procedurally unfair due to the attendance at the 30 June 2014 meeting of Mr Dugandzic and his participation in a decision to terminate, made, because he was a participant and witness to the 27 June 2014 incident. There is some basis to the proposition that having been involved in the 27 June 2014 incident, Mr Dugandzic was not the best person to undertake the investigation and disciplinary meeting and decision making in relation to the Applicant’s conduct. It should be noted, however that the process also involved human resources officers of the Respondent and the Applicant’s conduct, insofar as it involved Mr Dugandzic was not substantively in issue. The major issue in dispute related to the Applicant’s interaction with Mr King, which Mr Dugandzic did not participate in or witness.
[44] Whilst the processes adopted by the Respondent were not perfect, I am satisfied that the Respondent did, within that process, notify the Applicant of the reasons for his termination and provide the Applicant with an opportunity to respond to those reasons. When, after considering the Applicant’s response at the termination meeting of 30 June 2014, the Respondent, having decided to terminate the Applicant’s employment, reconvened the meeting to provide the Applicant with an opportunity to respond to that proposition and considered the Applicant’s response before confirming to the Applicant that such a decision had been made.
Submissions
[45] The Applicant submitted that the termination of employment was harsh due to the fact that the “serious misconduct” alleged by the Respondent was:
1. An isolated incident that had not previously occurred;
2. The Respondent had no reason to expect the incident would reoccur;
3. The Respondent failed to make immediate attempts to remedy the behaviour;
4. The Respondent failed to follow its own disciplinary procedures;
5. The disciplinary procedures used by the Respondent were procedurally unfair due to the attendance at the meeting of Mr Dugandzic, who was a participant and a witness to the incident; and
6. The disciplinary procedures used by the Respondent were procedurally unfair as the decision was made without regard to the Applicant’s response at the meeting of 30 June 2014. 74
[46] The Respondent submitted that separately and together, the Applicant engaged in conduct which constituted serious misconduct and provided a valid reason for his termination. The conduct was said to be that the Applicant:
• Engaged in insubordinate conduct in repeatedly refusing to comply with a lawful and reasonable instruction of his immediate manager, Mr Dugandzic;
• Yelled, used offensive language and behaved aggressively toward Mr Dugandzic;
• Verbally intimidated and grabbed and twisted the arm of a work colleague, Mr King; and
• Dishonestly denied, during the investigation process that he had grabbed and twisted Mr King’s arm.
[47] The Respondent also submitted that:
• The Applicant was notified of the reason for his termination in the meeting of 30 June 2014 and in the latter of that date;
• The Applicant was given, and took, the opportunity to respond to the allegations against him during the 30 June 2014 meeting;
• The Applicant declined the Respondent’s offer to have a support person present in the 30 June 2014 meeting;
• The termination related to serious misconduct, not unsatisfactory performance and was not conduct about which the Applicant needed to be warned, for a dismissal to be fair;
• It was a large organisation with dedicated human resource specialists such that ss.387(f) and (g) of the Act were neutral considerations in the context of the matter.
• There are no other factors which weigh in favour of a finding that the termination of the Applicant’s employment was harsh, unjust or unreasonable; and
• Having regard to the matters in s.387 of the Act, the Commission should find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable and his application should be dismissed.
Consideration
Was there a valid reason for the dismissal related to the Applicant’s conduct on 27 June 2014?
[48] I find that the conduct of the Applicant on 27 June 2014 constitutes a valid reason for the termination of his employment. That conduct consisted of the Applicant’s repeated refusal to give effect to a reasonable and lawful direction by the Respondent, through Mr Dugandzic, to undertake work within the scope of his employment and his conduct toward Mr Dugandzic and Mr King.
[49] I find that the Applicant wilfully refused to perform the duties required to be performed by Mr Dugandzic. The Applicant’s repeated refusal to undertake the re-installation of the operating system, as requested by Mr Dugandzic, was inconsistent with his duty as an employee and the obligation in his 17 March 2011 confirmation of appointment which sets out as a general obligation of the employment to “comply with all lawful orders and instructions of the Company”.
[50] I find that in his interaction with Mr Dugandzic, his immediate manager, on 27 June 2014 the Applicant conducted himself in a loud and aggressive manner, replete with inappropriate language and was disrespectful and dismissive of Mr Dugandzic.
[51] I find that the Applicant conducted himself in his physical and verbal actions towards Mr King in a manner which was threatening, intimidating and spiteful.
[52] The Applicant’s conduct in respect of both Mr Dugandzic and Mr King on 27 June 2014, was inconsistent with the requirements upon him in the Respondent’s Code of Conduct 75 that employees “treat everyone that [they] interact with in the course of [their] employment with dignity, courtesy and respect”.76
[53] I find that the three elements of the conduct of the Applicant, together, constituted serious misconduct and a valid reason for the termination of his employment. The repeated refusal to undertake the re-installation work was wilful behaviour that was inconsistent with the continuation of the contract of employment.
Was the Applicant notified of the reason for the dismissal?
[54] The allegations concerning the Applicant’s conduct on 27 June 2014 were read out to him 77 and he was provided with copy of them during the course of the meeting.78 The Applicant was also appraised of the possibility of the termination of his employment and given an opportunity to respond to that proposition,79 which he utilised.80
Was the Applicant given an opportunity to respond to any reason related to his conduct?
[55] The Applicant was given an opportunity to respond and did respond. 81
Was there any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal?
[56] The Applicant was offered and “declined” the Respondent’s offer to bring a support person to the meeting of 30 June 2014. 82
Did the dismissal relate to unsatisfactory performance by the Applicant and, if so, was he warned about that unsatisfactory performance before the dismissal?
[57] The dismissal did not relate to unsatisfactory performance by the Applicant.
Would the size of the employer’s enterprise or the degree to which the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal?
[58] The Respondent is a large organisation, with dedicated human resource specialists, two of whom were involved in the procedures followed in effecting the dismissal. These factors did not impact on the procedures followed in effecting the dismissal. This is a neutral consideration in the circumstances of the current matter.
What other matters, if any, are relevant?
[59] I accept that the termination of the Applicant’s employment has impacted significantly on the Applicant. He has been unable to secure alternative employment since the termination, notwithstanding his endeavours to do so, 83 with the economic circumstances of the region in which he resides making it difficult for him to do so. However, his conduct on 27 June 2014 was extreme and unacceptable and he bears the responsibility for that conduct.
[60] I also accept that the Applicant apologised to Mr Dugandzic and Mr Mangion, expressed regret for his conduct on 30 June 2014 and apologised generally to the managers in the 27 June 2014 meeting with Mr Shamsi, Mr White and Mr Dugandzic. However, he did not apologise to his colleague Mr King, whom he treated appallingly on 27 June 2104 and there was no evidence that he made attempts to do so.
[61] I accept also that the Applicant had not been subject to formal disciplinary action in respect of prior conduct of the type exhibited by him on 27 June 2014. Against that, however, there is evidence that he had exhibited some elements of that conduct previously during his employment to a much lesser degree.
[62] Whilst these considerations, on balance, lend some support to the proposition that the action taken in respect of the Applicant’s conduct – the termination of his employment was harsh, they do not outweigh the gravity of the conduct by the Applicant on 27 June 2014 and the valid reason which that conduct provides for the summary termination of his employment.
Conclusion
[63] I have found that the conduct of the Applicant on 27 June 2014 constituted serious misconduct and a valid reason for the termination of his employment. I have also found thatthe Applicant was notified of the reason for his dismissal, was provided with an opportunity to respond and was not refused an opportunity to have a support person present to assist at any discussions relating to his dismissal. I have also found that there are other matters that lend some support to the proposition that the termination of the Applicant’s employment was harsh, but not to the degree which outweighs the gravity of the Applicant’s conduct on 27 June 2014 and the valid reason which that conduct provides for the summary termination of his employment.
[64] Having regard to all of those considerations, I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. It follows that the Applicant was not unfairly dismissed. His application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C Ryan on behalf of the Applicant.
M Paynter on behalf of the Respondent.
Hearing details:
2014.
Melbourne:
October 20.
1 Exhibit R7.
2 Exhibit R1.
3 Transcript, at paras 12–42.
4 Exhibits T7, T8 and T9 respectively.
5 Transcript, at para 833.
6 Exhibit T3, at paras 9–11.
7 Exhibit T3, at paras 11–12.
8 Exhibit T7, at para 8.
9 Exhibit T4, at para 17, Exhibit T9, at para 10 and Exhibit T3, at para 14.
10 Exhibit T8, at para 10.
11 Exhibit R2, at para 1.
12 Exhibit R2, at paras 4–5.
13 Exhibit R2.
14 Transcript, at para 107.
15 Notes of the Applicant’s response attached to Exhibit T5, and Attachment ID1 of Exhibit T4.
16 Notes of the Applicant’s response attached to Exhibit T5, and Attachment ID1 of Exhibit T4 and Exhibit R2, at paras 38–39, Exhibit T5, at para 10 and Exhibit T4, at para 49.
17 In the Discussion Record in Exhibit R3 and as attached to Exhibit T5, and Attachment ID1 of Exhibit T4.
18 Exhibit R2, at paras 11 and 13.
19 Transcript, at para 112.
20 Exhibit R2, at para 7.
21 Exhibit R1, at para 2.
22 Exhibit R1, at paras 3 and 9.
23 Exhibit T4.
24 Exhibit T8.
25 Notes of the Applicant’s response attached to Exhibit T5, and Attachment ID1 of Exhibit T4 and Exhibit R2, at paras 38–39, Exhibit T5, at para 10 and Exhibit T4, at para 49.
26 In the Discussion Record in Exhibit R3 and as attached to Exhibit T5, and Attachment ID1 of Exhibit T4.
27 Exhibit T4, at paras 20–24 and Exhibit T8, at para 12.
28 Exhibit T4, at paras 23, 26 and 28 and Exhibit T8, at para 12.
29 Exhibit T4, Attachment ID2.
30 Exhibit T4, at paras 23, 26 and 28, and Exhibit T8, at paras 12 and 17.
31 Exhibit R2, at para 13.
32 Exhibit T4, at paras 30–31.
33 Exhibit T4, at para 30.
34 Exhibit R6.
35 Exhibit R2, at paras 17–19.
36 Transcript, at paras 117–118.
37 Exhibit T3, at para 24.
38 Exhibit T3, at paras 27 and 29, Exhibit T6, at para 11, Exhibit T4, at para 27 and Exhibit T9, at para 24.
39 Exhibit T3, at para 26.
40 Exhibit T3, at para 31.
41 Exhibit T8, at para 31, Exhibit T4, at para 57 and Exhibit T9, at para 15.
42 Transcript, at para 207.
43 Exhibit T4, Attachment ID2.
44 Exhibit R2, at paras 20–21.
45 Exhibit R2, at para 22.
46 Exhibit R2, at paras 25–28.
47 Exhibit R2, at paras 29–30.
48 Exhibit T4, at para 39, Exhibit T9, at para 13 and Exhibit T6, at para 14.
49 Exhibit T4, at para 41 and Exhibit T6, at para 14.
50 Exhibit T4, at para 43.
51 Exhibit T8, at para 30.
52 Exhibit R8.
53 Transcript, at paras 48 and 481.
54 Exhibit T3, at para 6, Exhibit T9, at para 6, Exhibit T7, at para 4, Exhibit T6, at para 5, Exhibit T8, at paras 3–4 and Exhibit T4, at para 11.
55 Exhibit T8, at paras 3–5.
56 Exhibit T5, at para 6.
57 Exhibit R2, at para 34, Exhibit T4, at para 46.
58 Exhibit R2, at para 35, Exhibit T5, at para 7 and Exhibit T4, at para 46.
59 Transcript, at para 148.
60 Exhibit R2, at para 36.
61 Exhibit R2, at para 37 and Exhibit T5, at para 9 and notes of response as attached to Exhibit T5 and Exhibit T4, Attachment ID1.
62 Exhibit T4, at para 49 and Exhibit T5, at para 10.
63 Exhibit R2, at para 48, Exhibit T4, at paras 50–52 and Exhibit T5, at para 11.
64 Exhibit R2, at para 46, Exhibit T4, at para 53 and Exhibit T5, at para 12.
65 Exhibit R2, at paras 47–48, Exhibit T4, at para 54 and Exhibit T5, at para 12.
66 Exhibit T4, at para 55 and Exhibit T5, at para 13.
67 Exhibit R2, at para 52, Exhibit T4, at para 56 and Exhibit T5, at para 14.
68 Exhibit R3.
69 Transcript, at para 677.
70 Transcript, at paras 677–691.
71 Transcript, at paras 148 and 684.
72 Attached to Exhibit T5, and Exhibit T4, Attachment ID1.
73 Transcript, at para 696.
74 Exhibit R9.
75 Exhibit R6, The 17 March 2011 letter confirming the appointment of the Applicant states that “A breach of the Company’s policies and procedures may result in disciplinary action up to and including the termination of your employment”. The Company’s policies and procedures are stated to include the Code of Conduct.
76 Exhibit T4, Attachment ID2.
77 Exhibit R2, at para 35, Exhibit T5, at para 7 and Exhibit T4, at para 46.
78 Transcript, at paras 148 and 684.
79 Exhibit R2, at para 46, Exhibit T4, at para 53 and Exhibit T5, at para 12.
80 Exhibit R2, at paras 47–48, Exhibit T4, at para 54 and Exhibit T5, at para 12.
81 Exhibit T4, at para 49 and Exhibit T5, at para 11.
82 Exhibit T5, at para 6.
83 Exhibit R5.
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