Daniel Wessley v Toyota Motor Corporation Australia Limited T/A Toyota

[2016] FWC 8021

[2016] FWC 8021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Daniel Wessley
v
Toyota Motor Corporation Australia Limited T/A Toyota
(U2016/7469)

COMMISSIONER WILSON MELBOURNE, 15 NOVEMBER 2016

Application for Unfair Dismissal Remedy.

[1] Daniel Wessley was employed by the Toyota Motor Corporation Australia Limited (Toyota) between 26 February 2002 and the date of his dismissal on 30 May 2016. At the time of his dismissal he was a Team Leader in Toyota’s Resin Shop. He was dismissed in May following allegations of serious misconduct relating to alleged unauthorised absences in the days around a public holiday in March 2016, and for reason of the provision to Toyota of allegedly false and misleading material relating to those absences within the course of an investigation conducted by the company into his conduct.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Wessley’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Evidence was received from Mr Wessley and two other witnesses on his behalf, his wife Charmaine Wessley, and Matthew Kinson, a Team Member in Toyota’s Weld Department and the AMWU Senior Site Coordinator.

[4] Evidence on behalf of Toyota was received from four managers: Joanne Romano, Corporate Manager Employee Relations and Safety; Claire Slattery, Human Resources Manager; Ryan Willmott, Employee Relations Adviser; and Doug Rickarby, Divisional Manager, Manufacturing. In addition, evidence was given by two Toyota employees on behalf of the Respondent, Harry Panteli and Brett Osman, both of whom are Group Leaders in the Resin Shop and who were required to attend the Commission following an order to do so.

LEGISLATION

[5] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

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.

CONSIDERATION

[6] Determination of whether Mr Wessley’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[7] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way;

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 1


• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 2
• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 3
• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 4 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 5”6 (original references)

[8] I will deal with each of the criteria within s.387 in turn.

(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)

[9] Mr Wessley commenced employment with Toyota on 26 February 2002 in its Altona production facility. In or about 2006 he was promoted to the position of Team Leader and has worked in the company’s Resin and Paint Shop in recent years. Since 2013 he has been a Senior Shop Steward for the Australian Manufacturing Workers’ Union (AMWU) and has been actively engaged in union affairs within the Toyota plant. Mr Wessley’s employment is subject to the terms and conditions of the Toyota Motor Corporation (TMCA) Workplace Agreement (Altona) 2015 7, referred to by the parties as “the WPA”. His work required him to work shifts, generally between Monday and Friday. Weekend work was generally not required unless notified in advance.

[10] As is well known, the Toyota Altona plant is scheduled to be closed in the last quarter of 2017. The WPA provides extensive benefits to those of its Altona employees who will be affected by the plant’s closure. Those benefits would extend to Mr Wessley if he were to continue to be an employee of Toyota at the time of the plant closure.

[11] Mr Wessley is married to Charmaine Wessley, and between them they have three young children, all presently of primary school age. Mrs Wessley works part-time as a Co-Educator at the children’s school, having started working there only at the start of the 2016 school year. She presently works 3 days a week, on Tuesdays, Wednesdays and Thursdays.

[12] Monday, 14 March 2016 was the Labour Day public holiday in Victoria. Mr Wessley had not been scheduled to work either on the public holiday itself or the Saturday and Sunday immediately prior to it. He was, however, rostered to work on each of the weekdays Monday to Friday in the week before, and in the week of the public holiday, with the exception of Tuesday 15 and Wednesday, 16 March 2016 when he was authorised to be absent for the purposes of attending trade union training at the offices of the AMWU.

[13] As it turned out, Mr Wessley was absent from work for several other days in the week prior and after the public holiday, with his attendance in those weeks being the following;

Monday, 7 March 2016	rostered and attended for work
Tuesday, 8 March 2016	rostered and attended for work
Wednesday, 9 March 2016	rostered, but did not attend for work
Thursday, 10 March 2016	rostered, but did not attend for work;
Friday, 11 March 2016	rostered, but did not attend for work;
Saturday, 12 March 2016	not rostered for work;
Sunday, 13 March 2016	not rostered for work;
Monday, 14 March 2016	Labour Day public holiday; not rostered for work;
Tuesday, 15 March 2016	authorised trade union training, but did not attend;
Wednesday, 16 March 2016	authorised trade union training, which was attended;
Thursday, 17 March 2016	rostered, but did not attend for work;
Friday, 18 March 2016	rostered and attended for work;

[14] Mr Wessley submits that on the days on which he was rostered for work but did not attend, including the day of authorised trade union training, he was required to be absent for the purposes of providing care for his family. Toyota have put forward that this was not the case, and that in particular Mr Wessley’s circumstances did not require him to be absent or take the leave claimed.

[15] Toyota provides employees with an ethics/whistleblowing hotline called “TelToyota” which is administered by an external service provider and provides what are said to be confidential disclosure reports to Toyota. On Tuesday, 15 March 2016 a TelToyota disclosure report was made alleging, amongst other matters, that Mr Wessley took three days of paid sick/carer’s leave in the week ending 11 March 2016 and that he used the time to undertake renovations to his kitchen. Further, it was reported that on the day of the report, 15 March 2016, Mr Wessley was supposed to attend the AMWU offices for trade union training but had not done so and did not intend to attend the remaining period in order to undertake renovations to his home. The TelToyota report itself is not within the evidence before the Commission, but is referred to within Ms Romano’s evidence, who received the report. 8

[16] Following receipt of this report, Toyota commenced an investigation into the complaint. Part of that investigation included the retention of an investigator who undertook undisclosed surveillance of Mr Wessley and his home and provided a report to Toyota.

[17] Allegations that Mr Wessley had been involved in misconduct were put to him in meetings on 23 March and 7 April 2016. On 7 April 2016 Mr Wessley was suspended on full pay and there were further meetings held with him about the allegations on 13 and 18 April 2016. On 20 April 2016 a full response to particularised allegations was sought from him. That letter was in these terms;

“Dear Daniel

We refer to our discussions with you, concerning the matters arising from a TelToyota report made on 15 March 2015.

As you are aware, in that report Toyota received a complaint that in the week ending 11 March you took 3 days paid carer's leave while performing renovations for your kitchen, that you were scheduled to attend union training on 15 and 16 March (following the public holiday on Monday 14 March), but had not attended for training that day (15 March) and did not intend to attend on 16 March either, as you were performing renovations on your kitchen. The complaint also stated that you regularly fail to attend paid courses and do personal activities instead.

These are very serious matters and I confirm we have met with you on 7 April 2016, 13 April and 18 April with your representative and discussed these matters with you, sought information and made inquiries. You have presently been stood down on pay whilst those inquiries are continuing.

Based upon the information received TMCA does have very serious concerns about your conduct and requires that you respond to the following allegations. You are required to respond fully and honestly and as discussed to do so by Friday 22nd April. Provide your response directed to me and copy Claire Slattery, ER Manager.

Please note that these matters may affect your employment.

Allegations

1. In respect of the period from Wednesday, 9 March 2016 to Wednesday, 16 March 2016, it is alleged that you have engaged in serious misconduct by:

(a) being absent without authorisation and outside TMCA policies;

(b) falsely claiming and accepting paid leave in circumstances where you were not entitled to such leave;

including engaging in the following behaviour:

(c) being absent from work for 9-11 March 2016 and claiming and accepting paid carer's leave for that period, in circumstances where you were not sick and you were not caring for an ill or injured family member or immediate household member;

(d) submitting a false Statutory Declaration dated 9 March 2016 in support of the claimed carer's leave;

(e) failing to attend at the paid trade union training scheduled for 15 and 16 March 2016;

(f) during the periods of absence, you were assisting with renovations and receiving deliveries at your house.

2. In respect of the above absences, failing to be honest in the course of the inquiries, in the explanations of your conduct provided to TMCA and in the claiming of paid leave and in particular:

(a) falsely claiming and accepting paid leave in circumstances where you were not entitled to such leave, as set out above;
(b) your explanation on 7 April concerning the statutory declaration dated 9 March 2016 is not credible. You have stated that you made the statutory declaration on 9 March as one of your sons was sick the night before (Tuesday 8 March) and you were anticipating that all of your sons would get the virus and require you to look after them for the next three days and that is why you made the declaration on Wednesday 9 March;

(c) you submitted the statutory declaration dated 9 March 2016 electronically on Tuesday 15 March 2016, notwithstanding you knew that your sons had not been home sick from school for the period 9-11 March 2016; and

(d) your explanation on 7 April that in respect of your absence from the paid training on Tuesday 15 March that you rang Harry on the afternoon of Tuesday 15 March 2015 and told him that you had been unable to go to training and asked if the day could be treated as annual leave or an RDO, is not true. You only phoned Harry late on Wednesday 16 March, after TMCA had advised your senior shop steward of the TelToyota report and that Toyota were aware that you had not attended for the paid training.

3. During the inquiries:

(a) when requested to do so, you indicated an initial preparedness to provide your phone records for the period 8/3/2016 to 18/3/2016. You subsequently declined to provide them or to authorise TMCA to obtain them from Telstra, notwithstanding you were directed to do so; and

(b) when asked by Toyota on 7 April, you claimed that there had never been any occasion where you had not gone to union training and failed to tell TMCA. When requested to provide union records of the training you had attended for the last 12 months, you and your representative indicated an initial preparedness to do so, however, you and your union representative have now stated that no records will be provided.

As part of your response to the allegations, without limiting your response, you are requested to provide:

(a) the phone records for the period 9-18 March 2016, showing calls made and location;

(b) a copy of any attendance records for paid union training during the last 12 month period.

Your alleged conduct is a breach of your general employment duties, a breach of the Toyota Code of Ethics and the Toyota Australia Workplace Agreement (Altona) 2015 (WPA), including clause 33.3 Attendance Standards of Behaviour and 33.5 Work Habits and Performance Standards of Behaviour. Should TMCA determine the alleged conduct be proven, disciplinary action up to and including termination may occur.

As part of the complaint process, the investigation is being conducted by myself as HR Corporate Manager, and Claire Slattery, ER Manager.

During the investigation process, strict confidentiality is to be maintained by all parties involved, which includes signing a confidentiality agreement.

A support person may be requested at any stage during the investigation process by any party involved.

Yours sincerely,

Joanne Romano” 9

[18] The next day, on 21 April 2016, an alleged dispute relating to the circumstances of the allegations was notified to the Fair Work Commission, with Deputy President Gooley convening conciliation conferences between the parties. After further consideration of the matters between the parties, including in the form of an internal grievance and a further conference before Deputy President Gooley, Mr Wessley’s detailed response to Toyota was provided by him, dated 26 and 29 April 2016.

[19] Toyota made a decision to terminate Mr Wessley’s employment, which was notified to him on 30 May 2016.

[20] Once dismissed, Mr Wessley was paid four weeks in lieu of notice together with his outstanding entitlement accruals.

[21] Toyota’s reasons for dismissal of Mr Wessley are set in its letter of termination to him, and are stated thus;

“Following inquiries and formal investigation, TMCA is satisfied that you have engaged in serious misconduct by:

1. during the period from Wednesday, 9 March 2016 to Wednesday 16 March 2016:

a) being absent without authorisation and outside TMCA policies on 9, 11 and 15 March 2016;

b) falsely claiming and accepting paid leave in circumstances where you were not entitled to such leave, including:

• submitting a false and misleading statutory declaration dated 9 March 2016 and claiming and accepting paid carer’s



• leave for the period 9-11 March 2016; and



• failing to attend Union training on 15 March 2016 (following labour day holiday on 14 March) and, in the view of TMCA, intending to receive paid trade union training union leave for the day, only asking if the day could be treated as annual leave or an RDO late on Wednesday 16 April after TMCA had advised your senior shop steward of the TEL Toyota report and that Toyota were aware that you had not attended for the paid training.

2. being dishonest in the course of the inquiries, in the explanations provided to TMCA and in the claiming of paid leave, including:

a) falsely claiming and accepting paid leave in circumstances where you were not entitled to such leave, as set out above;

b) your explanation regarding the statutory declaration on 9 March that as one of your sons was sick the night before (Tuesday 8 March) and you were anticipating that all of your sons would get the virus and require you to look after them for the next three days and that that is why you made the declaration on Wednesday 9 March 2016;

c) submitting the statutory declaration dated 9 March 2016 electronically on Tuesday 15 March 2016, notwithstanding you knew that your sons had not been home sick from school across the period 9-11 March 2016;

d) the explanation given by you on 7 April that in respect to your absence from the paid training on Tuesday 15 March that you rang Harry on the afternoon of Tuesday 15 March 2015 and told him that you had been unable to go to training and asked if the day could be treated as annual leave or an RDO. Such call was only made late on Wednesday 16 March, after TMCA had advised your senior shop steward of the TEL Toyota report and that Toyota were aware that you had not attended for the paid training.” 10

[22] Consideration of the evidence on the relevant chronology includes the following;

• Tuesday, 8 March 2016

Having attended for work on Tuesday, 8 March 2016, late in the evening on that day Mr Wessley texted his supervisor, Brett Osman, “pay carer’s won’t be in tomorrow.” 11 That circumstance came about, on Mr Wessley’s evidence, because his youngest son had developed an illness. He and his wife decided that the boy would not be able to go to school the next day and that it would be Mr Wessley who stayed home to care for the child.

• Wednesday, 9 March 2016

On Mr Wessley’s evidence, their son was feeling better and went to school, however there was only a half day of school that day. Mr Wessley’s evidence was that he intended to remain at home in case his son required collection at short notice, as well as to pick up his other children from the school by 1 PM. Mr Wessley’s evidence is that those arrangements were necessary because his children would be home during the afternoon because of scheduled parent/teacher interviews, while Mrs Wessley was required to work in the afternoon, also for the same reason.

As it turned out, there was no need to collect his youngest son before 1 PM and he picked all three children up at around 1 PM. In the late afternoon he noticed his youngest son was starting to look more ill and he anticipated that the child would not attend school on the Thursday and that he would not attend work.

Mr Wessley gave evidence that he had intended, prior to Wednesday, to take some of the day off. 12 Mrs Wessley’s evidence was that the scheduled parent/teacher interviews were always going to influence whether her husband went to work that day;

“Had it been intended to take annual leave for the day?---No, he was going to work originally. He was going to work for the day and he was going to leave to pick the kids up at 1 o'clock.

So it was always intended that Daniel would have at least part of the day off on the Wednesday, was it?---Yes.” 13

Later that day, between 6 PM and 6:30 PM, he had a statutory declaration witnessed at the Craigieburn police station about his absence. The statutory declaration anticipated that Mr Wessley may be absent from work from 9 March to 11 March 2016 because of his need to care either for the younger son or one or more of the others who may have contracted the same illness. 14 While obtained on Wednesday 9 March, the document was not provided to Toyota until Friday, 18 March 2016.15 Toyota is critical of the delay but does not raise the argument that the date shown on the statutory declaration was falsified.16

• Thursday, 10 March 2016

Mr Wessley and his youngest son remained at home. He picked his other two children up from school at about 3:15 PM. His evidence is that, at about 8:30 PM that evening, he spoke to Mr Osman telling him he was unsure whether he would be coming into work on Friday, 11 March because of his son’s health. His evidence is that Mr Osman agreed that he would not expect him the next day but if he could attend he would. By about 10:30 PM Mrs Wessley began to feel unwell with similar symptoms to that of her son, as well as having a bad migraine. 17 Mr Wessley did not mention his wife’s illness to Mr Osman when he called at 8.30 since it had not developed at that time.18

• Friday, 11 March 2016

Mrs Wessley was ill, but was not required to go to work because it was her day off, however there had been a possibility since the previous weekend that she may be required to work on this day.

Both Mr and Mrs Wessley decided that she was too unwell to undertake a drop-off or pickup of the children at their school. Mr Wessley’s evidence is that he decided to stay home to undertake these duties as well as to be available in case his youngest son required being picked up at short notice. He contacted Mr Osman at about 10 AM and explained to him the circumstances, with Mr Osman reportedly saying that “this was fine”. 19 In the course of the morning Mr Wessley attended an inter-school sports carnival in which another son was competing. He came to do this because Mrs Wessley had previously promised to her son that she would watch him compete, but was too ill to do so herself. Mr Wessley went home after he had watched the sports carnival. He picked his children up at about 3:15 PM and spent the remainder of the day caring for them.20 Tradespeople associated with the family’s kitchen renovations attended the Wessley’s house while he was at home, although he denies doing any of the work associated with the kitchen renovations himself.21

• Monday, 14 March 2016

This day was a public holiday and the following day was scheduled to be a day on which children would not attend school for reason of it being a “scheduled in-service day”. Mrs Wessley was required to work on the Tuesday and she had earlier made arrangements with her mother to look after their children. However those arrangements fell through in the evening of 14 March 2016. Mr and Mrs Wessley decided that it would be Mr Wessley who stayed at home to look after the children.

• Tuesday, 15 March 2016

This was otherwise a day that Mr Wessley was authorised to attend union training at the AMWU office. His evidence is that at about 7:30 AM he called Mr Osman and informed him that he would not be able to attend the trade union training and also likely would be unable to obtain a statutory declaration for carer’s leave for the day.

Mr Wessley’s evidence is that he told Mr Osman that he would instead take annual leave for the day and that Mr Osman agreed. Mr Osman does not recall whether that was said.

In the conversation Mr Osman requested a copy of the statutory declaration for the absences for the previous week and Mr Wessley’s evidence is that he sent Mr Osman a copy of this document by text message. Mr Wessley stayed home and took care of his children, none of whom were ill.

Mrs Wessley was at work between about 8:30 AM until 4:30 PM. Tradespeople associated with the family’s kitchen renovations attended the Wessley’s house while he was at home although he denies doing any of the work associated with the kitchen renovations himself.

• Wednesday, 16 March 2016

Mr Wessley attended trade union training at the AMWU office, which commenced at about 9 AM. Because his elder son became unwell at school Mrs Wessley needed to go home in the course of the day with her child and Mr Wessley picked up the remaining children on his way home. Mr Wessley believes that he was under investigation surveillance on this day, giving evidence that;

“…On my way back from union training on the 16th of March I was driving just off Flemington Road and as I pulled up at the lights a guy jumped out from behind a tree car and started taking photos of me, that grabbed my attention. And as I drove off I looked in my rear mirror, he jumped in his car, did U-turn and took off.” 22

Once he was at home he and Mrs Wessley concluded that their elder son would be too ill to go to school on the following day, Thursday, and that Mr Wessley would be at home to take care of him. At about 5 PM or 5:30 PM Mr Wessley went to the Craigieburn police station and asked for another statutory declaration to be witnessed indicating his need to care for his children on the Thursday. Mr Wessley’s evidence is that he then called Mr Osman and let him know that he would not be at work the next day, with his evidence being that Mr Osman agreed this was fine.

At about 5:04 PM Mr Panteli missed a phone call from Mr Wessley and returned it, at which time Mr Wessley informed him that he would not be in the next day (Thursday) and that he had not gone to the authorised trade union training on Tuesday. Mr Panteli is unsure whether Mr Wessley asked him to enter his leave as annual leave at any time on Tuesday or Wednesday. 23

• Thursday, 17 March 2016

Mr Wessley stayed at home to care for his elder son who was ill. In the afternoon he picked up his other two children from school, and while he was absent from his house Mrs Wessley’s mother came over and looked after the unwell boy. When he was at home an existing kitchen was being dismantled by two tradespeople and Mr Wessley assisted them to take out a long panel because it was too heavy for two people to carry. There were also some deliveries associated with the new kitchen on that day as well. 24

Surveillance of Mr Wessley was instructed by Toyota by Mr Willmot, upon Ms Romano’s direction. The surveillance was carried out between 10:30 AM and 3:00 PM and identified that Mr Wessley was at home for the period; that tradespeople attended and a refrigerator was delivered. The report said Mr Wessely was “supervising various tradesmen that attended”. 25

In the morning, Mr Panteli recorded Mr Wessley as having been absent on paid trade union training leave on Wednesday, 16 March 2016. He amended the time-sheet record for Tuesday, 15 March 2016 from trade union training pay to “unpaid absence – unauthorised”. 26

• Friday, 18 March 2016

Mr Wessley provided Mr Osman with the two statutory declarations referring to his absences on 9, 10, 11 and 17 March 2016. His evidence is that he also confirmed with Mr Osman and Mr Panteli that he sought to be paid annual leave for his absence on Tuesday, 15 March 2016, with them saying that they thought that would be done but that they would need to check with two managers. That evidence is broadly consistent with Mr Osman and Mr Panteli’s. Mr Osman reported that on 18 March he “accessed Daniel's timesheet and deleted the "unpaid absence- unauthorised' entry for Tuesday 15 March and entered "annual - pay by pay" instead”, although Carlos Cordeiro, Department Manager, later instructed the leave record revert to “"unpaid absence - unauthorised”. 27

• Wednesday, 23 March 2016

Mr Wessley was asked to attend a meeting with Mr Willmott, a Toyota Employee Relations Adviser, and Carlos Cordeiro, Department Manager. Mr Kinson attended as his support person. In that meeting Mr Willmott asked questions about Mr Wessley’s absences between 9 and 17 March 2016 and referred to there having been a TelToyota complaint about his conduct. Mr Wessley denied what he was told about the TelToyota complaint.

• Thursday, 7 April 2016

A further meeting was convened with Mr Wessley, his support person and Toyota, this time represented by Ms Romano and Ms Slattery. The subject of the TelToyota complaint was brought up, and Mr Wessley was informed that Toyota would be conducting a formal investigation into the complaint. He was also suspended with pay for the duration of the investigation and provided with a letter confirming, at least in generality, the matters that were discussed. The correspondence informed him that the scope of the investigation was the following;

“We refer to our meeting on 7th April, 2016 in which you were informed that a TelToyota has been received relating to alleged attendance breaches that occurred between Wednesday 9th March and Thursday 17th March, 2016. These allegations, if proven, amount to a breach of the Toyota Australia Workplace Agreement (WPA) 2015 (Altona), specifically Clause 33.3 Attendance Standards of Behaviour.” 28

• Monday, 11 April 2016

Ms Romano and Mr Willmott met with Mr Osman and asked him questions about Mr Wessley’s absences. Mr Willmott records Mr Osman as saying “Daniel told him he couldn't go to union training and asked if he could use AL and Brett thought it was because of his kid” 29 and, in his hand-written notes of the meeting “Daniel asked if he could use leave”.30

• Wednesday, 13 and Monday, 18 April 2016

Further meetings were held between Mr Wessley and Toyota HR representatives, in which he was asked to answer additional questions.

• 21 – 27 April 2016

A dispute was notified to the Commission and assigned to Gooley DP, who dealt with it in this period.

Monday, 30 May 2016

Mr Wessley was informed in a meeting with Mr Willmott and Mr Rickarby that Toyota considered, upon the basis of its investigation, that he should be dismissed for reason of serious misconduct. Two support people for Mr Wessley were in attendance, including Ms Catalini, his instructing solicitor in these proceedings. Mr Wessley was asked to respond, but initially felt unable to do so. A short break was then taken after which Mr Wessley was again asked for his response, and again felt unable to do so in any great detail. Mr Willmott then advised Mr Wessley that his employment had been terminated on the ground of serious misconduct with that dismissal being effective immediately. 31

[23] At the centre of Toyota’s submissions is the view that Mr Wessley sought and was paid carer’s leave on Wednesday, 9 March and Friday, 11 March despite him not being required to be at home to care for his children; and that he was at home caring for his children on Tuesday, 15 March 2016, while paid as if he was at an authorised trade union training day, and only later sought to amend that payment to annual leave in order to cover his tracks. It is suspicious about the timing and content of the two statutory declarations Mr Wessley brought forward in support of his absences, as well as being suspicious about the timing of his request to be paid annual leave for the Tuesday, 15 March absence, instead of trade union training leave. It submits that Mr Wessley could not reasonably have believed that his absences on 9 and 11 March 2016 were covered by his carer’s leave entitlement.

The statutory declarations - Wednesday 9 and Wednesday 16 March 2016

[24] The first statutory declaration was obtained on Wednesday, 9 March 2016 between 6:00 PM and 6:30 PM, well after the school day had finished. On Mr Wessley’s evidence, it was provided to Mr Osman by text message on Tuesday, 15 March, and in hard copy on Friday, 18 March 2016. 32 In the document Mr Wessley declared that he would “be absent from work from the 9/3/16 to the 11/3/16 due to caring for my children”. Toyota’s criticism of this is that not only did it refer to him caring for his children on the Wednesday, when they actually all went to school, but it was also a prospective cover for what was yet to occur on the Thursday and Friday. The contention is that while it turned out that one child was at home ill on Thursday, when he signed the declaration the need to do so had not yet been established. Further, despite what he signed on Wednesday night, and despite his absence from work on Friday, no child was ill and at home on that day, with the children only coming home shortly after 1:00 PM, when school finished early for the day.

[25] Ms Romano contends that Mr Wessley initially said in the meeting on 7 April that he had obtained the statutory declaration since he anticipated that all of his children would get sick as the week progressed, 33 but changed that explanation by the time he gave a written response, with it emphasising instead that he needed to support his wife.34 Mr Wessley’s oral evidence referred to both circumstances – an expectation of the need to be at home to care for his children, as well as that his wife was ill on the Friday.

[26] Ms Romano also believes that at the time the first statutory declaration was obtained on Wednesday, 9 March 2016, Mr Wessley had clearly formed the intention to take the rest of the week off. 35 In support of that proposition are two matters; the wording of the statutory declaration, and then what actually happened on the following two days.

The declaration signed by Mr Wessley stated he would “be absent from work from the 9/3/16 to the 11/3/16 due to caring for my children”. When he signed the declaration, he held the view that his ill son would not be able to attend school on Thursday and, as it turned out, he did not, because of illness. However, on that Wednesday he had made no decision that his child could not go to school on the Friday. The wording of the statutory declaration is odd and it does appear designed to provide cover for Mr Wessley for future events that, at that time, were somewhat beyond what may have reasonably been anticipated. No criticism is made of him for deciding on Wednesday that his son would be ill on Thursday and that he would take the day as carer’s leave. That was a reasonable decision for him to have made. In contrast, the possibility of needing to remain home on Friday, from the distance of Wednesday evening, is objectively questionable in the absence of any other knowledge or motive. Mr Wessley’s evidence on the possibility is thin and fails to put to rest the impression that, knowing there was a possibility Mrs Wessley may have to work on the Friday and that the children would be home, he made the declaration as cover for that eventuality. He gave this evidence on the subject;

“So I was actually thinking that if [my son] was still unwell on the Friday I would be required to look after him because Charmaine may have had to go into work. There was an expression – expectation - an expectation for her to go into work. So I basically - I just did it to basically just cover myself in case he wasn't, but through the course of those three days I did have communication with my group leader and explained to him that I've got - that if I can go in on Friday all's well, I will come into work on the Friday.” 36

[27] In cross-examination, his evidence on the subject elaborated that his absence was initially because of the possibility of having to care for his sick son, but in finality was for reason of attending to children because his wife was unable to do so. 37

[28] The proposition Mr Wessley advances is that carer’s leave would be made available on Friday on the basis of what he thought on Wednesday night. However, when he signed the declaration;

• he had sent a text to Mr Osman on Tuesday night saying he would not be at work the next day, and Mr Osman recalls that Mr Wessley rang him that night and told him he would not be in “because his kids were sick” 38;


• he had not attended work on Wednesday even though his son was well enough to go to school for the morning, with school finishing early at 1:00 PM; and
• he reasonably believed that his son would be unwell on Thursday, which turned out to be a correct anticipation.

[29] As it turned out, Mr Wessley was also not at work on Friday, not because of the illness of his children, but because of his wife’s incapacity. Mrs Wessley was not required to work that day and Mr Wessley’s evidence is that although it was possible she may have been required for work, neither he nor his wife expected to know if she was going to work on Friday, 11 March until at least Thursday afternoon and in any event did not have that confirmed until dinner time, between 4 PM and 6:30 PM. 39 In the end, while there was no requirement to work, their son was well enough to go to school, but Mrs Wessley was ill and unable to take the children to school or pick them up.40

[30] As a result, rather than being “absent from work from the 9/3/16 to the 11/3/16 due to caring for my children”, Mr Wessley;

• had no need to be absent from work on 9 March before collecting his children at 1 PM;



• was absent from work on 10 March due to his need to care for his ill son; and



• was absent from work on 11 March for a combination of caring for his children being at home due to the school’s closure for the day and his wife’s inability to care for the children that day.

[31] Even though the week unfolded considerably differently from that forecast in the statutory declaration, and he had three consecutive days absent from work for reason of carer’s leave, Mr Wessley did not seek to provide more accurate particulars about his absence to Toyota.

[32] The second statutory declaration was obtained by Mr Wessley on Wednesday, 16 March 2016, at between 5:00 PM and 5:30 PM. The declaration said that Mr Wessley would be “absent from work to care for my sons on 17/3/16” 41 and was provided to Toyota on the Friday that followed. Mr Wessley conceded in the meeting with Toyota on 7 April 2016 that the use of the plural in the declaration was incorrect and that the statement should have been an absence “from work to care for my son on 17/3/16”.42

[33] Earlier that day, Wednesday 16 March, Ms Slattery had told Mr Kinson and another AMWU organiser, Joe Cummaudo, about the TelToyota report, but asked Mr Kinson not to say anything about the report until she and Ms Romano had decided what to do about it. 43 Mr Kinson puts the conversation at about 5:00 PM. Despite Ms Slattery’s request to not say anything about the report, Mr Kinson spoke about it with Mr Cummaudo and he then received a phone call from Mr Wessly, who was upset.44

[34] Toyota allege that knowledge of the complaint caused Mr Wessley to have to account for a past and a future absence – he had not been at the approved trade union training leave on Tuesday, and so needed an explanation that would be accepted; and he expected to be away from work on the Thursday and again needed an explanation.

[35] Toyota’s case is that the Tuesday absence could not be covered through a statutory declaration since Toyota would not accept a back-dated declaration, and that the Thursday absence was covered by the declaration hastily obtained on Wednesday evening. Mr Wessley rebuts Toyota’s claims about Tuesday, 15 March by putting forward that he informed Mr Osman on Tuesday morning that he would not be going to the training and would take annual leave, instead of leave in the form of carer’s leave, because he probably would not have time to obtain a statutory declaration. 45

The request that Tuesday 15 March 2016 be taken as an Annual Leave day

[36] Mr Wessley puts forward that he asked, as soon as possible and at around 7:30 AM, that Tuesday 15 March 2016 be taken as a day of annual leave since he was unable to attend the authorised trade union training leave that had been arranged for that day and the next. 46

[37] Mr Osman’s evidence on the subject, of when Mr Wessley informed him that he wanted to take Tuesday 15 March 2016 as an annual leave day and not an authorised trade union training day, is that he cannot recall when he was told. Mr Willmott recorded notes of a meeting on 11 April, about four weeks after the events, in which Mr Osman said “Daniel told him he couldn't go to union training and asked if he could use AL and Brett thought it was because of his kid” 47 and, in his hand-written notes of the meeting, “Daniel asked if he could use leave”. Ms Romano disbelieved what Mr Osman said, largely because of circumstantial events involving people who did not give evidence in these proceedings;

“… (d) In relation to Daniel's absence from trade union training on the 15th, Brett said that Daniel had told him he couldn't go to union training and asked if he could use annual leave and that Brett had rung Carlos to ask him. Brett initially thought that this had occurred on the Tuesday. However, as set out below in the second interview and based upon the pay records, whilst he had been told by Daniel and then called Carlos to ask about leave types and discussed with Paul Vail and Steve Schembri, he was not sure of the day.

48. As mentioned above, during this meeting, Brett said he thought that his conversation with Daniel about Daniel's absence from union training occurred on Tuesday morning, as well as Brett's discussions with Carlos Cordeiro, Paul Vail and Steve Schembri about paying Daniel annual leave. However, this was not supported by discussions with those individuals and a review of the timesheet audit records printed form the payroll system … which were consistent with Daniel only disclosing on Wednesday afternoon about not attending trade union training on Tuesday. The call to Carlos and discussions with Paul Vail and Steve Schembri actually occurred after Tuesday, later in the week. The payroll system records also show:

(a) Harry had entered Daniel as being at trade union training on Tuesday and did this on Wednesday 16th in the morning;

(b) That this entry for 15 March had then been deleted on Thursday 17th in the morning by Harry and recorded as "Unpaid Absence Unauthorised";

(c) That Brett then only inserted annual leave on Friday 18 March 2016; and

(d) This was subsequently reversed by Stephen Schembri, General Foreman on 23 March 2016.

49. This was also consistent with Harry's recollection.” 48

Carer’s leave provisions

[38] The leave requested by Mr Wessley is leave dealt with in the Toyota enterprise agreement. Known as the WPA, the enterprise agreement provides for carer’s leave in precise circumstances, within the broader entitlement of personal leave, which is defined in this way;

“Sick/Carer's Leave (Personal Leave)

Paid leave taken by an Employee who is unable to attend for work because of a personal illness or injury or to provide care or support to a member of the Employee's Immediate Family or household.” 49

[39] Sick/Carer’s Leave is authorised by the enterprise agreement when certain conditions have been met, including ‘Reason’, ‘Notification’ and ‘Proof/Documentation’, about which the WPA provides the following;

“70.1 Reason

Unable to attend work due to:

• Personal illness - Employee is sick or injured; or

• The need to provide care to an immediate family member or member of the Employee's household.

70.2 Notification

• Prior notification of absence should be made when known, to allow Supervision to manage labour availability.

• Acceptable notification is as soon as practicable and during the ordinary hours of the first day or shift of such absence.

• Where it is not practicable to advise of absence within ordinary hours an Employee must advise within 24 hours of absence.

70.3 Proof/Documentation

In all cases, medical certificates must be issued and signed by an authorised person, and must not have been altered. The medical certificate should identify the medical need, expected duration and the Employee making the claim or Immediate Family member that the Employee is required to provide care for. Retrospective medical certificates or any other documentation will not be accepted.

When an Afternoon Shift Employee cannot obtain a medical certificate on the actual day of absence, the medical certificate issued must make reference to the actual period of absence.

Carer's Leave, proof must be provided on all occasions:

• A medical certificate or statutory declaration may be submitted as proof of the need to provide care to an Immediate Family member or member of the Employee's household.

• In such cases, the medical certificate or statutory declaration must identify the medical need, expected duration and identify the person is a member of the Employee's Immediate Family or household, and the Employee is required to provide care for the person.

• A maximum of ten days in a twelve month period (in accordance with an Employee's anniversary date) may be covered by statutory declarations as proof.
Proof will always be required where the guidelines are not complied with, and in the following circumstances:

• The absence is for 2 or more working days in a row and acceptable notification has not been provided

• The absence is immediately before or after annual leave or a Public Holiday

• The Employee has a current written warning or formal counselling for absenteeism

• The Employee has already had one or more absences, without proof, on the day before or after an RDO/PDO, in the preceding 12 months.” 50

[40] The parties have markedly different views about a matter that is at the centre of Mr Wessley’s case – that is, of whether it was permissible for him to be away from work, and claim sick/carer’s leave in order to care for his children even though they were not unwell.

[41] Mr Wessley’s case in this regard is succinct – his understanding of carer’s leave is that it permits care for a sick or injured household member and care more generally for a member of the household. 51 That explanation was given by Mr Wessley to Toyota in its 13 April 2016 meeting to discuss the allegation, with it being said by him that “his honest belief was that carer's leave could be used to look after the kids and drop them at school”.52 The same view formed part of his written response to Toyota on 26 April 2016.53 In any event, it is submitted that Mr Wessley’s use of carer’s leave for these purposes was authorised by his Group Leader.54

[42] In contrast, Toyota put forward that the entitlement to claim carer’s leave is not as broad as that sought to be adopted by Mr Wessley. In particular Toyota put forward that carer’s leave is available to an employee when a member of the employee’s immediate family or household requires care because they are ill. Toyota’s submissions on this point includes the following;

“20. Clause 70 of the WPA sets out provisions concerning sick/carer's leave, including identifying for sick/carers leave, a requirement that an employee provide proof/documentation identifying:

(a) the medical need of the person requiring care;
(b) the expected duration; and
(c) that the person is a member of the Employee's Immediate Family or household, and that the Employee is required to provide care for the person.

21. These requirements are also set out and explained in more detail in the TMCA Sick/Carer's Leave Procedure which is available to employees, including on the intranet.” 55

[43] Ms Romano’s witness statement attaches the Toyota Sick/Carer’s Leave Procedure, which includes the following;

“F. Procedure

Definitions:

Sick leave

Leave that is provided when an employee is not fit to work because of personal illness or injury.

Carer's leave

Leave that is provided to an employee when they are required to provide care or support to an immediate family or a member of the employee's household because that person has:

• a personal illness or injury; or
• an unexpected emergency.

For the purposes of Carer's Leave, Immediate Family Member is defined as per the table below:

The employee's ...	The employee's spouse's ...
• Spouse (including a former spouse, a de facto spouse and a former de facto spouse) • Child (including adopted child, step child or ex-nuptial child) • Parent • Step parent • Grandparent • Grandchild • Brother • Sister	• Child (including adopted child, step-child, adult child or ex-nuptial child) • Parent • Step parent • Grandparent • Grandchild • Brother • Sister

Principles:

Entitlement

Full-time employees are entitled to up to 10 days of paid Sick/Carer's Leave for each full year of service. Sick/Carer's Leave accrues on a daily basis.

Part-time employees will accrue Sick/Carer's Leave on a pro-rata basis, based on their ordinary hours of work.

An employee is entitled to two (2) days of Unpaid Carer's Leave for each occasion when a member of an employee's immediate family or household requires care or support because of a personal illness or injury affecting the member, or an unexpected emergency affecting the member.

A maximum of up to 20 days of accrued and untaken Sick/Carer's Leave will be paid out:

• on resignation where an employee has more than 15 years continuous service; or
• on the death of an employee; or
• on retirement of an employee; or
• where an employee is voluntarily made redundant.” 56

[44] Mr Wessley’s evidence is that he is not familiar with the procedure; that he was never provided with any training about it; and that while he knew Toyota had policies on its intranet he never looked at them. 57 He also does not recall that the need to comply with the procedure was the subject of discussion in the last enterprise bargaining negotiations leading to the WPA.58 Whereas the Respondent’s witnesses disputed the proposition that there had been no discussion in workplace agreement negotiations about such matters, putting forward that “unmanaged absence is a very, very hot topic at Toyota”,59 its evidence about the inclusion of such matters within enterprise bargaining negotiations was of a general nature only, with Ms Romano’s evidence in cross-examination including;

“Are you able to produce a document that shows that discussion occurring and Mr Wessley being present?---I'm sure that I could trawl through my WPA negotiation files and find that. Additionally it's my understanding that Daniel was actually on an attendance working party that met for days to talk about sick leave and its requirements. It's hot topic. It's something we talk about all the time.

Well, if it was a hot topic, wouldn't you expect to see the very specific content of your procedure in clause 70?---The clause is subject to negotiations. So, the words in the WPA are words that we agree at the bargaining table” 60

[45] Mr Wessley invited a finding that the foregoing procedure was contrary to the matters discussed within the course of bargaining that led to the formation of the WPA. He also invited a finding that the Sick/Carer’s Leave procedure was contrary to the WPA. 61

[46] Consideration of the evidence and submissions provided in this matter about the WPA carer’s leave provisions leads to the following findings;

1. The provisions of clause 70 of the WPA are to be accorded their ordinary and grammatical meaning, taking into account the clause’s context and purpose. None of the admissible extrinsic evidence before me would lead to the view that the provisions are either ambiguous or to be subject to a meaning set out in some other document. Consideration of the WPA as a whole leads to the view that when it intends to have its contents apply in conjunction with a management policy or procedure, it says so.

2. The critical question in this matter is what is meant by the enterprise agreement when it provides for authorised sick/carer’s leave occasioned by the “need to provide care to an immediate family member or member of the Employee’s household” (clause 70.1, underlining added).

3. Clause 70, which deals with sick/carer’s leave, is within a part of the WPA dealing with the provision of leave as well as being within a wider enterprise agreement which contains definitions set out in a glossary, which in particular defines certain of the terms within clause 70. Amongst those definitions is that of sick/carer’s leave. The wider context of the agreement does not determine the meaning of clause 70.

4. Clause 70.3 stipulates that proof of documentation must be provided in all cases for claims of leave and in particular that claims for carer’s leave must be accompanied by a medical certificate or statutory declaration “as proof of the need to provide care” and that “[i]n such cases, the medical certificate or statutory declaration must identify the medical need, expected duration and identify the person is a member of the Employee's Immediate Family or household, and the Employee is required to provide care for the person”.

5. The fact that the proof requirements are to do with a person who has a “medical need” reasonably leads to a view that when clause 70.1 refers to an inability to attend work due to the “need to provide care to a family member or member of the employee’s household” the intention of the clause is to limit the absences to those occasions of medical need.

[47] While much was made of the possibility that Mr Wessley had wanted to be at home for the period concerned because he was having kitchen renovations done at the same time, the evidence does not lead to the finding that he was at home and not at work for that purpose.

[48] What the evidence does show is the following;

• Toyota concedes that Mr Wessley was entitled to be absent on carer’s leave on Thursday, 10 March and Thursday, 17 March 2016 and that he was entitled to be absent for reason of authorised trade union training on Wednesday, 16 March 2016.



• On Wednesday, 9 March 2016, Mr Wessley was not at work, and, according to Mrs Wessley, his original intention was that he would work in the morning and then leave to pick the children up at around 1 PM. His son, who had been ill the previous day, was not ill that day. Mr Wessley’s caring duties that day extended to being on call in case his son needed collection before 1 PM, and then picking up the children at around 1 PM and attending to them when they returned home. Both Mr and Mrs Wessley held a prior intention that Mr Wessley would have some time off that day.



• Mr Wessley was not at work on Friday, 11 March 2016. He was at home and took the children to school; attending an interschool sports carnival and then picked up the children at around 3:15 PM and attending to them when they returned home. At 8:30 PM the previous night he anticipated he would not be at work owing to the illness of his son; in finality, his reason for being at home was not his son’s illness, but his wife’s.



• Mr Wessley was not at work or authorised trade union training on Tuesday, 15 March 2016, but was instead at home attending to the needs of his children who had a day off school, with that need arising because Mrs Wessley was working and his mother-in-law was no longer able to look after the children.

[49] The above findings in turn lead to the following findings about Mr Wessley’s absences from work and his claims for carer’s leave.

Wednesday, 9 March 2016

[50] Mr Wessley claimed paid sick/carer’s leave on this day when he was not entitled to do so. On that day each of his children went to school and his wife went to work. When he signed the statutory declaration at between 6:00 and 6:30 PM and declared that he had been absent from work on that day “due to caring for my children”, the statement was correct only in as much as any father might be said to care for their children in the course of any normal day.

[51] There had been no substantive need to provide care to his children within the meaning of clause 70 of the WPA on that day. Such apprehension Mr Wessley may have had that, having gone to work, he may within a short period of time have found out that his child had become ill and that he or Mrs Wessley needed to stop work to attend to the child, really amounted to no more than one of the exigencies of parental life. Mr Wessley may have been entitled to claim carer’s leave if he was at work and alerted that one of his children needed picking up from school and if he and his wife had agreed it should be him who returned home.

[52] Ms Romano reports Mr Wessley as having told her in the meeting with Toyota on 13 April 2016 that carer’s leave was for a broad purpose, with him being able to “use carer’s leave to look after his kids, whether or not they were sick””. 62 While Mr Wessley does not agree he used those precise words, he did not back away from their sentiment when giving evidence;

“Do you recall saying those words?---Not those exact words, no.

What do you believe you said?---All I said was I thought I was entitled to actually take the carer's leave to care for my children as a parent, which I have also done in the past for the same reasons, and that - yes, I didn't believe and I don't believe I was doing anything wrong.” 63

[53] However, the circumstance of Wednesday, 9 March does not fit even this analysis of the meaning of the entitlement. At the time he stayed home, no-one was ill and no-one required caring as a parent would care. At the time he stayed home, the caring need was entirely hypothetical. Mr Wessley can point to no prior knowledge of his that would reasonably lead to the view that he genuinely believed that claiming carer’s leave in the way he did for that day was consistent with his entitlements.

[54] Mr Wessley gave evidence that he had intended, prior to Wednesday, to take some of the day off. 64 Mrs Wessley gave evidence that it was always intended that her husband would have at least part of this day off.65 It is more likely than not that this intention became a reality, and a reality that consumed the whole day, and not just a part. For whatever collateral purpose, it appears more likely than not that it was simply more convenient for Mr Wessley to remain at home than to go to work.

[55] As a result, I find that Mr Wessley claimed paid sick/carer’s leave on this day when he was not entitled to.

Friday, 11 March 2016

[56] Mr Wessley claimed paid sick/carer’s leave on this day when he was not entitled to do so. On that day his wife stayed at home because she was ill and Mr Wessley took his children to school and then later attended a school sport function in the morning. The reason why he was home had shifted overnight from being a need to remain home for his ill son, to being a need to step in for his wife’s duties.

[57] There is only basic evidence that Mr Wessley needed to step in for his wife on that day. Both he and Mrs Wessley have described her illness as it preventing her from taking the children to school; however, she was well enough to take photographs of her kitchen on the day. 66 No evidence is put forward by either Mr or Mrs Wessley about alternative drop-off or pick-up arrangements that could have been implemented or were attempted to be put in place. At most, the evidence about Mr Wessley’s need for carer’s leave, on the basis of his definition of the entitlement, was that it ended when he dropped the children at school in the morning. It is unlikely there was no reasonable alternative available to Mr Wessley for picking the children up at around 3:15 PM. Attendance at the school sports function does not reasonably fall even within Mr Wessley’s view of the entitlement.

[58] Whereas Mr Wessley could have driven immediately to work after dropping the children off, even with the potential that he may need to finish the shift early in order to then pick them up, he did not do so. A reasonable employee, complying with their employment obligations, could have been expected to do this; however Mr Wessley did not.

[59] As a result, I find that Mr Wessley claimed paid sick/carer’s leave on this day when he was not entitled to do so, for at least part of the day.

Tuesday, 15 March 2016

[60] On this day Mr Wessley had been authorised to attend trade union training at the AMWU offices. The night before, his babysitting arrangements had fallen through and he and Mrs Wessley took the decision that Mr Wessley should stay home to look after the children, who were not required at school on that day. This absence falls within the definition of sick/carer’s leave advanced by Mr Wessley that he “was entitled to actually take the carer's leave to care for my children as a parent”.

[61] However, Mr Wessley did not make this claim, and instead sought to have the day converted to a day of annual leave. On his evidence, he spoke with Mr Osman early in the morning about his need to be at home;

“45. At about 7.30am I called Brett and told him I would need to take care of the children for the day because of the curriculum day. I told him I wouldn’t be able to attend union training that day and I would probably not have time to get a statutory declaration for carer’s leave. I also asked him if I could take annual leave for the day.

46. Brett said it was ok that I would not be in and that using annual leave for the day should be fine…” 67

[62] Mr Wessley’s oral evidence is that the request was posed as an alternative; either annual leave or an RDO, even though he “should still be able to take carer's leave on the 15th because I was caring for my children”. 68

[63] Whom he spoke with about the status of the day is the subject of differing responses on the part of Mr Wessley. In the Toyota meeting on 7 April 2016, he is reported as having told Ms Romano and Ms Slattery that he had told Mr Panteli of his need to be at home and not attend trade union training and that he was going to take the day as an RDO or day of annual leave. 69 Mr Panteli denies that he had any contact with Mr Wessley on the Tuesday,70 which was first identified to Toyota on 12 April 2016 in a meeting with Mr Willmott and Ms Romano.71 Mr Wessley then says, through his 26 April 2016 response to Toyota’s allegations, that he had in fact placed a call about the subject to Mr Osman at about 7:30 AM on Tuesday, 15 March 2016. Mr Wessley largely maintained this latter position in his oral evidence, as well as that he spoke to Mr Panteli about the matter on the Wednesday, however his evidence about the matter in cross-examination was not altogether clear, other than conceding that as late as the morning of Wednesday, 16 March that Mr Panteli had no knowledge Mr Wessley had not attended trade union training the previous day;

“You now seem to accept that, that you didn't speak to him on the Tuesday, because I think your answer to me was you're not sure. Your initial answer was "No" and then you indicated that you weren't sure?---Are you asking specifically about the annual leave conversion, or are you just asking just speaking to him in general? I may have spoke to him in general but I know a hundred per cent I spoke to him on the Wednesday on - about the annual leave conversion on the way to union training.

All right, so you may have spoken to him on the Tuesday, do you think?---May have. I can't recall. I take a lot of phone calls, yes.

Okay, but you're very sure that you didn't speak to him about annual leave conversion on the Tuesday now?---Correct, yes. I spoke to Brett on the Tuesday morning, not Harry. Harry was Wednesday morning on the way to union training.

Now Harry is going to give evidence that he enters on the Wednesday morning that he enters you as trade union training for the day before?---Yes.

Including because he had assumed that you had gone to trade union training?---Yes.

And:

Later that day at 5.04 pm based on my phone records I had a missed call from Daniel and I called him back. Daniel said he wouldn't be able to work the next day, Thursday, and he also told me he hadn't attended union training the day before. I clearly remember it was the 5.04 pm conversation that Daniel told me he would not be in the next day and that he had not gone to trade union training on Tuesday. I was sitting in my car whilst I talked to Daniel. Immediately after speaking to Daniel I then had to call around my team members to see if anyone would work as an acting team leader on Thursday.

He says:

I'm unsure if Daniel asked me to enter his leave for Tuesday the 15th of March 2016 as annual leave or RDO at any time on Tuesday or Wednesday. I can't remember.

And he gives the evidence that I've just given you, that on the Wednesday morning he enters you as being at trade union training. Now I put it to you that the conversation that you have with Mr Panteli where you tell him that "I'm not going to be in tomorrow and I didn't go to trade union training yesterday" that occurred in the evening, so at 5 o'clock on the Wednesday?---I disagree.” 72

[64] Ms Romano reported that Mr Kinson, the AMWU Senior Site Coordinator, had told her on 17 March 2016 that he knew Mr Wessley had not gone to the trade union training on the Tuesday, and sought to have it off as “he was on sick/carers leave on Tuesday as his children were unwell”, which is broadly confirmed by a contemporaneous email from another person at the meeting. 73 In his oral evidence, Mr Kinson agreed the statement reflected his understanding at the time.74

[65] In overall context, Mr Wessley offers an insufficient explanation as to why he sought to have it paid as annual leave or an RDO when for that day looking after his children was plainly apparent, and such care unambiguously fitted his definition of carer’s leave being that he “was entitled to actually take the carer's leave to care for my children as a parent”.

[66] The only explanation of significance advanced by Mr Wessley on the subject is that set out in his statement above – that he “would probably not have time to get a Statutory Declaration”. However, Mr Wessley never developed why that may be the case. With the statutory declaration from Wednesday, 9 March 2016 having been obtained at between 6:00 PM and 6:30 PM, and the second from Wednesday, 16 March 2016 being obtained between 5:00 PM and 5:30 PM, and having offered no explanation as to what on Tuesday, 15 March led to the improbability of having time to obtain a declaration, even late in the day, there is an implausibility to Mr Wessley’s evidence on the subject.

[67] Having claimed three days carer’s leave in the previous week, his reasoning about not wanting to do so again on Tuesday, 15 March is implausible.

[68] Toyota invite the finding about this day that Mr Wessley did not speak with Mr Osman on Tuesday, 15 March about his changed attendance, or that he desired to take the day as an RDO or annual leave day. Further, it is argued that he did not speak with Mr Panteli, who did not know about Mr Wessley’s changed circumstances for Tuesday on the Wednesday when he came to enter data into the timesheet system. Toyota point to Mr Panteli’s evidence in which he says he spoke with Mr Wessley twice on Wednesday, 16 March and that it was only in the second conversation, at around 5:04 PM, that Mr Wessley said he had not been to trade union training the previous day. 75 Toyota submit that Mr Wessley did not seek to take Tuesday as something other than absence for authorised trade union training until after he had been made aware by Mr Kinson, through the AMWU organiser, Joe Cummaudo, of the TelToyota complaint about his behaviour. By that time, it was too late to seek to take the day as a day of carer’s leave, since the day itself had passed and Toyota had a policy of not accepting back dated documentation for this form of leave.

[69] Mr Wessley’s explanations about what occurred developed over time in a way that appears more than merely a matter of coming to terms with the allegations and providing more detailed answers about the same core assertions of fact. His behaviour in that regard indicates a reluctance to be entirely forthright and truthful with Toyota.

[70] He was initially interviewed about the TelToyota complaint by Mr Willmott on 23 March 2016, but only in relation to the circumstances of 17 March 2016. Mr Willmot gave evidence that Mr Wessley then told him that “he was working at home on the kitchen as they were installing a whole new one”, and that one of his sons had been ill and at home. 76 At that time Toyota’s allegations had not been detailed to Mr Wessley or any of his colleagues.

[71] Instead, some limited information had been provided by Toyota to Mr Kinson and Mr Cummaudo on 17 March 2016 that had immediately been communicated to Mr Wessley. That limited information included the communication from Ms Slattery to Mr Kinson on 16 March “that a TelToyota complaint had been made about Daniel's alleged absence from union training.” 77

[72] Mr Wessley’s response to Mr Willmott in the meeting on 23 March is one that is consistent with him wishing to answer an enquiry of him to do with whether he attended the trade union training and his movements the day after.

[73] At the second meeting between Toyota and Mr Wessley, on 7 April 2016, Ms Romano provided Mr Wessley with the detailed allegations letter, which included the information that the company was investigating attendance breaches that occurred between 9 March and 17 March 2016. 78 In that meeting Mr Wessley put forward, for the first time, an explanation about his absences for Wednesday 9, Friday 11 and Tuesday 15 March.

[74] Toyota argues that Mr Wessley was dishonest with it in numerous respects when he gave his responses about all of the dates in question.

[75] Toyota’s allegation is essentially in two parts: first that Mr Wessley dishonestly claimed and accepted payment leave when he was not entitled to the leave; and second that he misled Toyota in the course of its investigations and especially by providing inconsistent explanations for his behaviour.

[76] For reason of the finding set out above, the first part of the Toyota’s allegations of dishonesty is made out. I am satisfied that, more likely than not, Mr Wessley was aware that he was seeking payment for leave he was not entitled to.

[77] The second part of Toyota’s allegation of dishonesty is founded in questions over Mr Wessley’s responses to them in the course of the investigation, as well as his behaviour from the point at which he became aware his conduct was under question.

[78] Mr Wessley gave shifting explanations about the nature of the first statutory declaration, made on Wednesday, 9 March 2016, as well as its wording.

[79] It was argued that Mr Wessley’s explanation about his absence between 9 and 11 March was not credible. The wording of the statutory declaration said that he would “be absent from work from the 9/3/16 to the 11/3/16 due to caring for my children”. Mr Wessley is recorded by Ms Slattery and Ms Romano as having said that he had taken this time off and made the declaration because his younger son “was not 100% and he was anticipating that all of the kids would all get sick for the rest of the week as that's what happens and that's why he got the stat dec that day”. 79 Mr Wessley does not agree he said he “anticipated” those events, preferring instead that he said he “would not be surprised” if all the children fell ill.80 In the overall context of the evidence, that difference matters little – I take Mr Wessley’s evidence at the time of the hearing to be not that the children were actually ill at the time of the declaration, and requiring of care, but that he foresaw they may become ill.

[80] Mr Wessley fails to satisfactorily explain why the declaration needed to be prospective, with him shifting from the belief that his children may be ill, to there being other factors as well. In this regard, Toyota point to Mr Wessley’s first written response to them on 26 April 2016 as denying that he had told Ms Romano and Ms Slattery that the declaration was made with the wording it contains because of anticipation about his children’s health, and instead referring to a need as well to collect his children from school. In that response, Mr Wessley gives this explanation;

“8. At about 6 or 6.30pm that night, I went to Craigieburn Police Station to have a statutory declaration witnessed regarding my absence from work. I wrote that I will be absent from work on 9, 10 and 11 March 2016 to care for my children as:

a. I had needed to care for my children that day by picking them all up from School at 1.00pm on 9 March 2016;

b. By the evening of 9 March 2016, [my son’s] sickness had worsened and I had made the decision that he should not go to School the next day (10 March 2016). I would therefore need to care for him on that day; and

c. I made an assessment that, based on how unwell he was feeling, [my son] would also not be able to go to School on the Friday 11 March 2016.” 81

[81] In relation to Wednesday, 9 March, Mr Wessley sent Mr Osman a text message the night before saying “pay carer’s won’t be in tomorrow”. 82 A file note by Mr Willmott records Mr Osman as having told Toyota in an interview that he was informed by Mr Wessley about the Wednesday, 9 March absence, which was “due to his kids being sick”. Mr Osman’s written proof of evidence corroborates that he was told of the absence by Mr Wessley in a mid-morning phone call, with it being necessary because “his kids were sick, he wouldn't be in to work today and that he probably wouldn't be in tomorrow”. Mr Osman’s information was given to Mr Willmott on 11 April and his later written proof of evidence, adopted as his witness statement, has no recollection of Mr Wessley having told him the children had gone to school that day but needed early collection.

[82] Ms Romano and Ms Slattery record that they were told by Mr Wessley that his absence was necessitated by the early school finish on that day. Mr Wessley’s response to Toyota and his evidence to the Commission build upon what was said to Ms Romano and Ms Slattery. At the very best, Mr Wessley has not accounted for why his need for absence on Wednesday, 9 March was first explained as likely illness on Tuesday night, cemented in the statutory declaration on Wednesday night as actual illness, when it was not, and then became an early school finish.

[83] The evidence also allows a finding that Mr Wessley always planned to be away from work on Wednesday, 9 March 2016, but was not truthful with Toyota about that intent. During cross-examination Mr Wessley confirmed that before his son got sick, he intended to take some of the day off;

“Now I put it to you that you'd intended to stay home on the Wednesday?---To look after my son, yes.

But before your son got sick - who was picking the kids up at 1 o'clock?---At 1 o'clock?

Yes?---I would have left work early if need be. I was going to pick up the kids. So my intention was to go in and then leave at lunch time like I have done before.

Well, let's just break that down. So you've known for a week that the parent teacher interviews are on?---Yes.

You've intended to take some of the day off?---Yes.

And when did you make that application for that time off?---When did I make the application?

Yes?---I didn't make the application. I was going to leave it till the day because it just makes it - it's just - it's the way things work at work. It's just easier, leave it till the day.” 83

[84] Mrs Wessley confirmed in cross-examination that it was it was always intended that her husband would have at least part of the day off on the Wednesday. 84

[85] This intention was not the subject of earlier explanation by Mr Wessley.

[86] I consider that Mr Wessley’s explanations to Toyota in relation to his absence on Wednesday, 9 March have been inconsistent and misleading.

[87] Whether Mr Wessley put forward a satisfactory or coherent explanation of his absence on Friday, 11 March is also questionable. In the interview with Toyota on 7 April, he told them that the absence was necessary due to his wife’s illness, and that he had to drop off and pick up his children from school in her place; however when he was asked about his reasons for being away on the day in question he did not volunteer that the reason was a different one from that set out in his statutory declaration, or endeavour to explain why that may be. In his oral evidence, Mr Wessley put forward that he and his wife had had a conversation on the previous weekend about whether she might need to work on the Friday, and that that was the reason why the statutory declaration of 9 March made reference to his anticipated Friday absence. Following on from the question “When you were filling out the statutory declaration what did you have in mind concerning the 10^th?”, Mr Wessley gave the following evidence in examination-in-chief;

“And why the 11th then?---The 11th because my wife, Charmaine, sometimes – my wife, Charmaine, only works part-time, Tuesday, Wednesdays and Thursdays. However she also sometimes has to go in on her days off for extra - she works with kids with autism so she has to sometimes do extra training or extracurricular activities like Level Up. The previous Friday my way, Charmaine, had to go in for a logistical education day training and - - -

And what was that day, do you know?---That was the Friday prior so that would have been the 3rd, 4th?

The 4th, yes?---The 4th I think? Over the course of that weekend, so the 5th and the 6th, just through discussion - I can't recall the exact date but I do recall that Charmaine mentioned that there was a possibility she would also have to work on the 11th, the following Friday. But the way it usually works with Charmaine is she's not confirmed until basically the day before, so it would be the Thursday at the end of her shift if she has to go in or not. So I was actually thinking that if [my son] was still unwell on the Friday I would be required to look after him because Charmaine may have had to go into work. …” 85

[88] Mr Wessley’s answers during cross-examination reference considerations at two slightly different points of time; one relating to the time before he realised his wife was ill and the other relating to the period after that realisation. His evidence covers both these matters in the following exchange in examination-in-chief; dealing first with a phone call to Mr Osman on the Thursday night;

“Well, then there was another call at 8.30 pm on 10 March?---Yes.

And he says about that call that it was in that call that you advised that you wouldn't be coming on Friday because your kids or wife was sick. Do you recall that?---Yes, that's correct.

Is that right?---Yes, so I said "It doesn't look like I'll be in tomorrow". I said - because I know how [my son] was going to wake up and I said "But if you see me there, you see me there". I said "Don't" - I said "Cover me for the start up because I won't be there definitely at 6 o'clock, because I know what type of night I'm going to have with [my son]". I said "But if I can come in I'll just come in at 7 o'clock, but cover the start up just to cover production needs".” 86

[89] Mr Wessley’s other responses during cross-examination about the subject were careful to connect his absence with the words in the declaration – “caring for my children” – when there was ample evidence by that time that he was absent because his wife did not go to work, staying home not to care for her, but to take the children to school and attend a school sports commitment. His explanation about Mrs Wessley’s work had not previously featured in Mr Wessley’s explanations about the Friday. Although Mr Wessley claims that he mentioned the need to Ms Romano and Ms Slattery in their meeting on 7 April 2016, Ms Romano denies that it was discussed and I accept and prefer her evidence in this regard. 87

[90] While that reason for absence did not eventuate, since Mrs Wessley was both not required for work and was unwell, the fact that it was offered as part of the reasoning for the Friday absence leads inexorably to the view that Mr Wessley wanted to have time off for reasons unconnected with his children’s illness.

[91] As a result, I have formed the view that Mr Wessley has offered varying reasons for taking time off from work on Friday, 11 March, and that, in all, none of the reasons have been credible. In this regard, he has failed to be honest and forthcoming with Toyota.

[92] The third date for which Mr Wessley was required to provide an explanation is Tuesday, 15 March 2016, when he did not attend the authorised trade union training.

[93] Mr Wessley’s answer for the circumstances relating to that date is to refer to his request for the day to instead to be paid as annual leave or an RDO. His evidence is that he spoke to Mr Osman about doing so on the morning of the day he was absent, 15 March. For the reasons referred to above, I consider that to be improbable. Mr Osman himself is unclear whether Mr Wessley told him that day he did not go to the training. If things stood as he claimed on 15 March, he would most likely have sought to have the day paid as carer’s leave, consistent with his requests for the previous week. While he argues that he would likely not have had time to obtain a statutory declaration that day, such seems improbable.

[94] Because of those findings, it follows that I consider Mr Wessley’s explanation about his absence on Tuesday, 15 March 2016 to be an endeavour to mislead Toyota and not be truthful with them.

[95] I therefore consider that Mr Wessley’s explanations to Toyota for all of the absences in question have been misleading.

[96] My consideration of the evidence, coupled with my earlier findings, leads in turn to the finding that, when it decided to dismiss Mr Wessley, Toyota had a valid reason to do so. In particular;

• he was absent from work on Wednesday, 9 March 2016 and sought payment for that day as carer’s leave when he was not entitled to that payment;



• he was absent from work on Friday, 11 March 2016 and sought payment for the whole of that day as carer’s leave when he was not entitled to payment of the whole day as carer’s leave;



• he did not attend the authorised trade union training on Tuesday, 15 March 2016 and sought substitution of the payment for that day as an RDO or annual leave day only once it was apparent his acceptance of payment for the day as authorised trade union training would be questioned; and



• his leave applications, the two statutory declarations and his answers to Toyota during its investigation were made by him with the intention to mislead Toyota and in the knowledge that he was not entitled to at least some of the leave.

[97] These matters are not trivial or conduct that would not justify dismissal.

(b) whether the person was notified of that reason

[98] I am satisfied that Mr Wessley was notified of the reasons for his dismissal.

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

[99] I am satisfied that Mr Wessley was given an opportunity to respond to Toyota’s reasons for consideration of his dismissal and that he availed himself of that opportunity.

(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

[100] There was no unreasonable refusal by Toyota to allow Mr Wessley to have a support person present to assist at any discussions relating to dismissal.

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

[101] Mr Wessley’s dismissal relates to his conduct and not to allegations of unsatisfactory 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

[102] Toyota is a significant sized employer, with approximately 4000 employees at the time of Mr Wessley’s dismissal. There is no evidence that its size impacted on the procedures it followed in effecting his dismissal.

(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

[103] Toyota had access to, and availed itself of, dedicated human resource management specialists or expertise in its investigation into Mr Wessley’s conduct and its decision to dismiss him.

(h) any other matters that the FWC considers relevant

[104] Mr Wessley puts forward several matters potentially relevant to consideration under s.387(h) and which may be taken into account should the Commission find that there was a valid reason for his dismissal. They include that;

• In relation to the taking of leave on the days concerned, Mr Wessley had a legitimate reason for not attending work or union training on the relevant days due to his parental responsibilities;



• That there was no suggestion by Toyota of loss or operational prejudice caused by Mr Wessley's absences;



• There was a dispute on foot concerning the investigation by Toyota that had engaged the “status quo” under the WPA;



• The alleged misconduct arises from a single course of conduct, with there being no evidence of any prior misconduct of a similar nature or otherwise; and



• Dismissal would be harsh, for the reason that Mr Wessley’s conduct was discrete within an otherwise good record of employment and that, with the Altona plant scheduled to close in 2017, dismissal will deprive Mr Wessley of access to significant severance and retraining benefits.

[105] I have considered each of these matters against the other findings made in relation to all of the evidence.

[106] Notwithstanding, Mr Wessley’s dismissal came about because of knowing behaviour and conduct on his behalf; he claimed payment for leave he was not entitled to, and he failed to concede that fact to Toyota or the Commission.

[107] The very best view of Mr Wessley’s case is that he took leave thinking that he was fully entitled to it. However, as I have found, even on his construction of his leave entitlement, he would not have been entitled to carer’s leave for all of Wednesday, 9 March, and would likely have been entitled only to a part-day absence on Friday, 11 March. His explanations to Toyota did not engage with the obvious problems with what he had claimed.
[108] Instead of taking me to the very best view of his case, the evidence takes me to the findings I have made, which are that there was deliberate action by Mr Wessley to claim payment for leave when he knew that he was not entitled to it, and that he then sought to mislead Toyota in the course of its investigation.

[109] As a result, the extenuating factors Mr Wessley raises for consideration under s.387(h) are not sufficient to avoid a finding that his dismissal was not unfair.

CONCLUSION

[110] Having considered in detail all of the criteria within s.387 of the Act, I find that there are no matters that would cause me to find that, irrespective of there being a valid reason for the dismissal of Mr Wessley, his dismissal was otherwise harsh, unjust or unreasonable.

[111] I therefore do not consider that Mr Wessley has been unfairly dismissed.

[112] As a result of my finding that Mr Wessley has not been unfairly dismissed, his application will now be dismissed and an Order to that effect will be issued at the same time as this Decision.

COMMISSIONER

Appearances:

Mr M Harding of counsel, instructed by Maurice Blackburn Lawyers for the Applicant.

Mr S Pill of Clayton Utz for the Respondent.

Hearing details:

2015.

Melbourne:

August 22, 23; September 5, 7.

Final written submissions:

Applicant: 23 September 2016.

Respondent: 22 September 2016.

 1   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 2   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 3   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 4   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 5   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 6   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 7   AE413208.

 8   Exhibit R2, Witness Statement of Joanne Romano, [27].

 9   Exhibit R4, Witness Statement of Claire Slattery, Attachment CS-7

 10   Exhibit R2 Attachment JR-20.

 11   Exhibit ASOF-2, Agreed Chronology of Events.

 12   Transcript PN 953–959.

 13   Transcript PN 1640–1641.

 14 Exhibit A2, Witness Statement of Daniel Wessley, [26]–[31].

 15   Exhibit ASOF-2.

 16   Transcript PN 3833.

 17   Exhibit A2 [32]-[35].

 18   Transcript PN 1062.

 19 Exhibit A2 [39].

 20   Ibid [36]–[41].

 21   Transcript PN 242, 255.

 22   Transcript PN 262.

 23 Exhibit R8, Witness Statement of Harry Panteli, [11]–[13].

 24   Transcript PN 228–230.

 25   Exhibit MFI-1, 30 March 2016 Investigation Report, 2.

 26 Exhibit R8 [15].

 27 Exhibit R9, Proof of Evidence of Brett Osman, [37]–[38].

 28   Exhibit A2 Annexure E.

 29   Exhibit R6 [19(f)].

 30   Ibid Attachment RW-3.

 31   Ibid [75]–[78].

 32 Exhibit A2 [46], [58]; Exhibit R9 [27].

 33   Exhibit R2 [43(b)].

 34   Ibid [72(a)]-[72(b)].

 35   Ibid [73(c)].

 36   Transcript PN 221.

 37   Ibid PN 647–652.

 38 Exhibit R9 [11].

 39   Transcript PN 1031–1033; PN 1620–1625.

 40   Exhibit A7 [16]–[17].

 41   Exhibit A2 Annexure D.

 42   Exhibit R2 [43(f)].

 43   Exhibit R4, Witness Statement of Claire Slattery, [8].

 44   Exhibit A10, Witness Statement of Matthew Kinson, [21].

 45   Exhibit A2 [45]–[46]

 46   Ibid

 47   Exhibit R6 [19(f)].

 48   Exhibit R2 [47]–[49].

 49   AE413208; Exhibit A10, Annexure A, Glossary.

 50   AE413208 cl 70.

 51   Exhibit A2 [19], see also Exhibit A1, Applicant’s Outline of Submissions, [14].

 52   Exhibit R4 [20(d)].

 53   Ibid Attachment CS-9 7.

 54   Ibid Attachment CS-9 10.

 55 Exhibit R1, Respondet’s Outline of Submissions, [20]–[21].

 56   Exhibit R2 Attachment JR–2.

 57   Transcript PN 147–154.

 58   Ibid PN 188, PN 593–595.

 59   Ibid PN 2234.

 60   Ibid PN 2278–2279

 61   Exhibit A13, Submissions of Daniel Wessley, [34].

 62 Exhibit R2 [54].

 63   Transcript PN 298–299.

 64   Transcript PN 953–959.

 65   Ibid PN 1640–1641.

 66   Ibid PN 1553–1554, 1660.

 67   Exhibit A2 [45]-[46].

 68   Transcript PN 305–309.

 69   Exhibit R2 [43(d)]; Exhibit R4 [15(c)] and Attachment CS-3.

 70 Exhibit R9 [8].

 71   Exhibit R2 [50(a)]; Exhibit R6 [21(b)].

 72   Transcript PN 1173–1182.

 73   Exhibit R2 [36(b)] and Attachment JR-3.

 74   Transcript PN 1981–1983.

 75   Exhibit R8 [10]–[12].

 76 Exhibit R6 [14].

 77 Exhibit R4 [8].

 78   Exhibit R2 Attachment JR-6.

 79 Exhibit R2 [43].

 80   Transcript PN 922.

 81   Exhibit A2 Annexure C 3

 82   Exhibit ASOF-2.

 83   Transcript PN 953–959.

 84   Ibid PN 1641

 85   Ibid PN 219–221.

 86   Ibid PN 431–433.

 87   Ibid PN 2365, 2573–2577.

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