Gary Wakeling v Foster Pharmacy Pty Ltd T/A Foster Pharmacy

[2016] FWC 2459

[2016] FWC 2459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Wakeling
v
Foster Pharmacy Pty Ltd T/A Foster Pharmacy
(U2015/11628)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Gary Wakeling was employed by Foster Pharmacy Pty Ltd from 2006 until 18 August 2015. Mr Wakeling is a pharmacist. He was initially employed as an independent contractor locum and in April 2012 he became a part owner of the business. Ms Jane McGovern owned 50% of the business and Mr Chi Chiu and Mr Wakeling each owned 25% each. Mr Wakeling became a director of the pharmacy and was offered a permanent position as a pharmacist. 1

[2] On 12 June 2015, Ms McGovern received a written complaint from Ms Kayleen Thomson about Mr Wakeling’s behaviour towards her. 2

[3] Ms McGovern decided to appoint an external investigator to conduct a formal investigation. On 18 June 2015, she met with Mr Wakeling and Mr Chiu and informed him of the complaint and advised him that given the complaint he should remain away from the pharmacy on full pay while the investigation took place. 3

[4] On 19 June 2015, Ms McGovern sent Mr Wakeling an email confirming the discussion and advising him that Ms O’Neill, the investigator, would contact him. 4

[5] On 22 June 2015, Mr Wakeling was given notice by the investigator of a formal investigation into allegations that he engaged in inappropriate conduct in the workplace which may amount to bullying. 5

[6] On 24 June 2015, Mr Chui made a formal complaint to Ms O’Neill about Mr Wakeling.

[7] Ms O’Neill interviewed Ms McGovern, Mr Chiu, Ms Thomson and another employee Ms Christine Slaney.

[8] On 25 June 2015, Mr Wakeling was provided with a summary of the allegations against him and invited to attend an interview with Ms O’Neill. 6

[9] On 14 July 2015, Mr Wakeling’s representative sent Ms O’Neill a letter responding the allegations. 7

[10] Mr Wakeling was interviewed on 17 July and on 25 July Ms O’Neill interviewed Ms Janne Raimondo, Ms Gabrielle Morgan and Ms Natasha Metherall who all worked at the Pharmacy. 8

[11] Ms McGovern received a copy of the report on 12 August 2015 and she arranged to meet with Mr Wakeling. 9

[12] On 18 August 2015, at the meeting with Mr Wakeling he was provided with a summary of the findings and he was advised that given the substantiated allegations were very serious that Foster Pharmacy was considering terminating his engagement. He was provided with an opportunity to confer with his representative. Mr Wakeling responded to the allegations. Ms McGovern made a decision to terminate Mr Wakeling’s engagement.

[13] On 19 August 2015, Mr Wakeling’s employment as a pharmacist was terminated with immediate effect. 10

[14] On 10 September 2015, Mr Wakeling was removed as a director of the business but remained a shareholder.

[15] It is not disputed that Foster Pharmacy is a small business. As such, the first matter that must be determined is whether Foster Pharmacy complied with the Small Business Fair Dismissal Code.

[16] The Code provides:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[17] The summary dismissal aspect of the Code was considered by a Full Bench of the Fair Work Commission in Pinawin T/A RoseVi.Hair.Face.Body v Domingo. 11

[18] The Full Bench stated:

“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[19] The Full Bench in Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 12 held that:

“[38] We therefore consider that the "Summary dismissal" section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.”

The initial complaints and Mr Wakeling’s responses

Ms Kayleen Thomson’s complaint

[20] Ms Thomson made two specific complaints:

• That whilst she was serving a customer she asked Mr Wakeling to print the medication information. When Mr Wakeling did not respond she asked him again. He yelled at her “I’m printing the f… report.” He then “wacked the printout on the dispensary.” Ms Thomson apologised to the customer. She then asked Mr Wakeling a question but because he did not look at her when answering she did not realise he was speaking to her. He then answered her rudely.



• On 12 June 2015, when she was leaving the pharmacy Mr Wakeling said to her “go tell more lies.” When she said “I beg your pardon” He said “you heard me”. She then walked away he said “start smiling and smirking.” 13

Mr Chi Chiu’s complaint

[21] Mr Chiu’s complaint:

• Mr Chiu was undergoing a QCPP assessment and the assessor asked him about his parent’s citizenship application and he told her that it would cost him about $100K to apply. Mr Wakeling said “he would pay for [Mr Chiu’s] parents not coming to Australia.”



• On about 25 March 2015, Mr Chiu suggested that they no longer needed the PBS claim box. Mr Wakeling yelled at him “Are you stupid” in front of other staff members. He said he was not stupid and Mr Wakeling told him to get used to it and did not apologise. Mr Wakeling subsequently apologised after the matter was raised at a business partners’ meeting.



• On 18 June 2015, Mr Wakeling threw his phone to the corner of the bench of the dispensary where Mr Chiu was standing. Mr Chiu said Mr Wakeling yelled at him. While Mr Chiu said he could not remember what Mr Wakeling said, Mr Wakeling repeated his statement.



• Later on 18 June 2015, Mr Wakeling “spoke into his face and said “you are weak as piss.”



• Mr Wakeling told Ms McGovern that Mr Chiu was gay as he didn’t have a stable relationship. 14

[22] Mr Wakeling’s response to these allegations:

• In his written response, Mr Wakeling described the difficulty printing out the information sought by Ms Thomson. In response to the specific allegation of swearing Mr Wakeling said “I can only think of the classic Australian film “the Castle” where the hapless Dennis Denuto is trying to get his office photocopier to work and swears at it in frustration.” He said dealing with antiquated programs and technology and the complicated process makes him “very fed up and [he swears] as a result. At no time would I have directed that at Kayleen. I have no recall of the particular patient or incident.” 15



• Mr Wakeling had no recollection of this specific incident and therefore denied the allegation. He said he may have audibly sworn in response to the antiquated technology and said if he did swear his conduct was reasonable and understandable and is hardly “a hanging offence.” He said “who hasn’t sworn at work before when frustrated. 16



• Mr Wakeling admitted saying to Ms Thomson “go and tell more lies” as she was leaving the Pharmacy. When she asked him what he said he replied “you heard me.” He said “she then smirked with a look and I took that to mean she was satisfied that she had upset me, and as she left I said “and wipe that smirk off your face as well.” He said he turned to Mr Chiu and said “I am not going to put up with her lying.” He denied using the word “bitch.” 17 He said he was justified in speaking to Ms Thomson in this manner because she had been spreading gossip about his new relationship which he was trying to keep private. He considered his actions to be justified.18



• Mr Wakeling admitted he said “I would pay that much to have them stay in Hong Kong.” He said he thought Mr Chiu’s parents placed him under undue pressure and he made the comments out “of welfare for Chi”. 19



• Mr Wakeling said Mr Chiu was trying to get rid of the boxes because they no longer needed to post them off anymore. Mr Wakeling said to Mr Chiu “Are you stupid, we need those? We’re going to have to store them.” Mr Chiu replied “I’m not stupid” and Mr Wakeling denied saying “get used to it”. He said “I’m sorry but we’ve got to get these so that we can store them around in the shed.”



• Mr Wakeling said he received a phone call from Ms McGovern about the need to have a partners meeting about communication. This had been the subject of a discussion the week before. He assumed that Mr Chiu had been complaining to Ms McGovern about their communication again and after talking to Ms McGovern he threw the phone back in the corner of the bench where it stays. He then said to Mr Chiu “if you have a problem with me, talk to me and don’t go whinging to Jane.” 20 He was not aware there was a customer present and he said when he was told there was he apologised and he and Mr Chiu went into a room to continue the discussion. He said there was no yelling at this time.21



• Mr Wakeling said this occurred after he was told that he had been suspended. He said he was in shock. As he was leaving the meeting he said to Mr Chiu “you’re as weak as piss.” 22

Other allegations

[23] As a result of the interviews a total of 22 allegations were made. 23

[24] Seven allegations were substantiated. One was partially substantiated. One was substantiated but only in relation to Ms Thomson and Mr Chiu and another was substantiated but found not to be racist.

[25] The allegations that were substantiated were as follows:

1. Allegation 1.3 - 23 April 2015, Ms Thomson called in sick with a headache. Mr Wakeling knew it was a headache, but told Leanne that Ms Thomson had haemorrhoids.

2. Allegation 1.4 – 8 May 2015, Mr Wakeling swearing at Ms Thomson in the shop when she asked him to print out a medication sheet.

3. Allegation 1.7 - 12 June 2015, Mr Wakeling said to Ms Thomson “go tell more lies” and “of you go with that smirk on your face.” Ms Thomson felt intimidated and distressed by this.

4. Allegation 1.9 - 18 June 2015, Mr Wakeling throwing the phone and verbally abusing Mr Chiu.

5. Allegation 1.10 - 18 June 2015, Mr Wakeling saying to Mr Chiu that he was “as weak as piss.”

6. Allegation 1.11 - Staff feeling fearful and intimidated by Mr Wakeling. Only substantiated with respect to Mr Chiu and Ms Thomson.

7. Allegation 1.14 - Mr Wakeling was angry about the loss of a measuring cylinder and threw his pen in temper in Mr Chiu’s direction. Partially substantiated.

8. Allegation 2.3 - Mr Wakeling saying he would pay for Mr Chiu’s parents to not come out to Australia. Substantiated but not as a racist remark.

[26] Ms O’Neill held that allegations 1.4, 1.7, 1.9, 1.10 and 1.14 amounted to workplace bullying. Ms O’Neill relied upon the definition of bullying developed by WorkSafe which said bullying is persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.

[27] Ms O’Neill concluded that Mr Wakeling’s conduct fell short of what would be expected of a business owner and director. She also concluded that there was a clear split in the workforce and she was unable to determine the cause of the split. She concluded that such a split was not sustainable in a small business and she recommended the business partners end their relationship.

Other witnesses

[28] Ms Natasha Brown’s description of the events of 18 June 2015 was that “Gary seemed angry at Chi sometime in June for something and I asked them to go into the back and close the door, if they wanted to talk to each other and sort it out. And they did but I heard no yelling or offensive language coming from the room.” 24 In her record of interview with Ms O’Neill, Ms Brown is recorded as saying that Mr Wakeling threw the phone into the partition but he could not have hit Chi.25 She said Mr Wakeling said something like “if you have something to say, talk to me.” She said Gary was talking louder than normal but not yelling. In examination in chief she stated that “most people would call that yelling. I don’t believe it was yelling.”26 She said she heard Chris tell Gary that there were customers in the store and that they should go out the back.27

[29] Ms Brown said that when they went into the back room there were probably raised voices 28 though in cross examination she said she heard no yelling.29

[30] Mr Chiu gave evidence that Mr Wakeling “was yelling in somewhat muffled tone, but I believe I heard him say “grow some balls. I say to Gary “I beg your pardon”. In response he yelled abuse at me. Christine told Gary to stop yelling at me and reminded him that customers were in the pharmacy. Gary continued to yell at me.” Mr Chiu said Ms Brown intervened and told Mr Wakeling he needed to have the conversation in the back of the pharmacy. Mr Chiu said that when they went into the back of the store Mr Wakeling continued to yell at him. 30 Mr Chiu was cross examined on whether Mr Wakeling threw the phone at him but was not cross examined on what he alleged Mr Wakeling said to him or that he was yelling at him.

[31] Ms Christine Slaney adopted her recollection of these events from Ms O’Neill’s report. 31 She said that Mr Wakeling was on the phone and was very agitated. He threw his phone into the corner of his desk where Mr Chiu was standing and started yelling and swearing at Mr Chiu. Ms Slaney told Mr Wakeling that there were customers in the shop and he stopped momentarily but then continued. Ms Brown convinced him to go out the back, which he did. Ms Slaney she said she could still hear Mr Wakeling shouting. Ms Slaney was not cross examined on this evidence.

[32] Ms Janne Raimondo recalled this incident and said “they said he threw the phone which he did, and they went out the back and had the discussion. But there was no – that’s the only time I can remember them being – sort of heated words between them.” 32 Ms Raimondo denied Mr Wakeling threw the phone at Mr Chiu.33

[33] Ms Gabrielle Morgan was at work on the 12 June 2015 but did not hear any comments made by Mr Wakeling to Ms Thomson. 34 She did see Mr Wakeling throw the phone but said he didn’t throw it at Mr Chiu. She did not hear what Mr Wakeling said but said “he might have raised his voice but that’s when they moved off into the room at the back.”35 When asked if there was yelling and screaming she said there wasn’t screaming.36

[34] At the hearing before me, significant time was spent establishing whether the alleged conduct occurred. However, as can be seen from the matters set out above, much of what occurred is not in contest. Further there was a lot of evidence about allegations about inappropriate conduct by other employees. Much of that was irrelevant to the issue before me.

[35] In relation to allegation 1.3 Mr Wakeling did not deny making the comment. He said it is his default response. He said he said this to maintain employee privacy. 37 He said if Ms Thomson wants him to use a different term he would. In relation to allegation 1.14 Mr Wakeling could not recall this incident and denied the allegation.

[36] Mr Wakeling, in his written submission, did not dispute that Ms McGovern as the managing director had a subjective belief that Mr Wakeling’s conduct was sufficiently serious as to justify immediate dismissal. 38 It was accepted that the first limb of Pinawin was met.39

[37] In his written submissions Mr Wakeling said that Ms O’Neill failed to conduct a thorough and procedurally fair and proper investigation. 40 She failed to apply the Act’s test for bullying. She assessed Mr Wakeling’s conduct in the context of him being a business owner or company director and not as an employee. She failed to have regard to the culture that existed between the employees.41 It was submitted that the inconsistencies in Ms Thomson’s complaints weren’t questioned nor was it questioned how she worked alongside Mr Wakeling for 12 months without raising the bullying complaints.42

[38] Mr Wakeling submitted that Ms O’Neill failed to distinguish between his conduct as in the course of employment and conduct away from the workplace and in his capacity as a business director and shareholder. 43

[39] Mr Wakeling submitted that the process was unfair as he was not provided with the entire nature of the allegations against him.

[40] Mr Wakeling complained of the double standards displayed by Ms O’Neill because he was blamed for the breakdown in the relationships when the others involved were not. 44 He alleged that the investigator took a much more critical position against him compared to other employees.45

[41] Mr Wakeling submitted he did not engage in workplace bullying. Ms O’Neill failed to adequately assess the workplace culture. 46

[42] Mr Wakeling submitted that he was never informed that the investigation related to his employment. Nor was he alerted to the prospect that he might be dismissed from his employment. 47

[43] Mr Wakeling submitted that the report’s recommendation that he represented a risk to the safety and wellbeing of all staff was not reasonable. The fact that only 5/22 allegations were substantiated should have raised questions about the veracity and motivations of the complainants. 48

[44] Mr Wakeling submitted that no regard was had to alternatives to dismissal, namely a commitment to the parties working out their differences. 49

[45] Mr Mark Ritchie submitted that Mr Wakeling’s conduct was not sufficiently serious as to justify summary dismissal. 50 It was submitted that Mr Wakeling’s conduct was not theft, fraud or violence. It was submitted that Mr Wakeling’s conduct did not involve a serious breach of occupational health and safety procedures.51

[46] Mr Ritchie submitted that there were no policies in place and in particular there were no anti bullying procedures in place. Mr Ritchie submitted that there were serious flaws in the investigation.  52He submitted that it was not reasonable to hold Mr Wakeling to a higher standard when other employees engaged in inappropriate behaviour as well.

[47] Mr Ritchie submitted that allegation 1.10 did not relate to Mr Wakeling’s employment as it was said to Mr Chiu after a directors’ meeting and after he had been suspended. 53

[48] In its written submissions, Foster Pharmacy submitted that Ms McGovern’s evidence demonstrated that she held a clear and unambiguous belief that Mr Wakeling’s conduct was sufficiently serious to justify his immediate dismissal. 54

[49] Ms McGovern said that at the meeting on 18 August 2015, Mr Ritchie described the substantiated allegations as trivial. Ms McGovern “considered Gary’s responses showed a lack of insight into what a serious issue this was. In my view Gary’s conduct and behaviour in the workplace was unacceptable and had ultimately created an untenable and toxic working environment. His actions had serious negative impacts on the health and wellbeing of Foster Pharmacy staff and constituted a serious occupational health and safety risk as concluded by the independent investigator. Overall I was concerned that if Gary resumed working at the pharmacy, I would be risking the health and safety of staff members. As a consequence, I determined that the matter was sufficiently serious to warrant the dismissal of Gary’s engagement.” 55 Ms McGovern’s evidence on this was not challenged in cross examination.

[50] It was submitted that Ms McGovern’s belief was formed on reasonable grounds because:

• The allegations were investigated thoroughly be an independent investigator.



• Mr Wakeling provided a detailed response and he obtained independent advice before providing that advice.



• Mr Wakeling was interviewed by Ms O’Neill.



• Ms O’Neill’s findings were supported by the evidence.



• Mr Wakeling was represented at the meeting on 18 August 2015 and provided with an opportunity to respond.



• Mr Wakeling was dismissed after Ms McGovern considered the report and Mr Wakeling’s response. 56

[51] Mr Millar submitted that it is not necessary for the Commission to find that Mr Wakeling’s conduct was sufficiently serious to warrant summary dismissal. It is enough that the employer had a reasonable belief that it did. 57 In this case, it was submitted that the employer had the benefit of an independent investigation. Ms O’Neill, it was submitted, conducted an independent analysis of the allegations and found some to be substantiated. Mr Millar submitted that the fact that Ms O’Neill recommended ending the business relationship was not the point. Unless Mr Wakeling was removed as an employee then nothing would be resolved.58

[52] Mr Millar accepted that the workplace was dysfunctional and the employer formed the view that Mr Wakeling was responsible for this dysfunction. 59 It was submitted that given the nature of the workplace this could not continue.60

[53] It was submitted that the employer, having become aware that there was a serious problem in the workplace, went to the Pharmacy Guild who referred the employer to lawyers who recommenced that an independent investigator be appointed. 61

[54] Mr Millar submitted that Mr Wakeling had conceded most of the allegations. He submitted that Mr Wakeling had a pattern of behaviour of overreacting to matters instead of diffusing and calming things down. 62

[55] Mr Millar rejected the submission that the employer tolerated similar behaviour from other employees. He said that the examples relied upon by Mr Wakeling were not in the same category as the complaints made against him. 63 Mr Millar submitted that Mr Wakeling did not need training to know how to behave in the workplace. The standards required were no more than was reasonable.64

[56] Mr Millar rejected the submission that allegation 1.10 did not relate the workplace. He said the comments had a connection with the workplace and it would have been unreasonable for Mr Chiu to return to the workplace and have to deal with Mr Wakeling without reservation. 65

[57] Mr Millar submitted that the conclusion by Ms O’Neill that when Mr Wakeling becomes frustrated or angry he throws things was reasonable. Her conclusion that he lacks self-control was also reasonable. He said it was clear that there was a workplace risk. 66

Findings

[58] I am satisfied that Ms McGovern as the relevant decision maker held the belief that Mr Wakeling’s conduct was sufficiently serious to justify immediate dismissal. So much was not challenged by Mr Wakeling.

[59] I am also satisfied that Ms McGovern’s belief was based on reasonable grounds. It was entirely appropriate for Ms McGovern to appoint an external investigator. I accept that the investigator brief was to examine Mr Wakeling’s suitability to remain a director and business owner but the core of the investigation was directed at Ms Thomson and Mr Chiu’s complaints. Ms O’Neill substantiated certain allegations. In most cases, Mr Wakeling did not dispute those allegations. What he did was explain his conduct. The substantiation of the allegations was not dependent on Mr Wakeling’s status as an employee.

[60] Mr Wakeling was of course more than an employee. He was a director of the company and along with Mr Chiu he was the manager of much of the day to day management of the pharmacy. It was not unreasonable to assess his conduct in this context. Even if it was true that other staff behaved inappropriately at times, and I make no judgement about that, it was the responsibility of all the directors to manage that. It did not provide an excuse for inappropriate behaviour by the directors.

[61] I am satisfied that Ms McGovern made her decision after considering the report and Mr Wakeling’s response to the report. I am satisfied that her belief that Mr Wakeling’s presence in the pharmacy posed a risk to the health and safety of employees was reasonable. At the time Ms McGovern made her decision had regard to what she considered was Mr Wakeling’s lack of insight into his conduct. 67 While Mr Wakeling denied that Mr Ritchie said the complaints were trivial, it was not put to Ms McGovern that her recollection was wrong. I prefer Ms McGovern’s evidence on this point.

[62] I do not accept the submission that Mr Wakeling’s dismissal was not consistent with the Code because Ms McGovern did not respond in the same way to other complaints about inappropriate workplace behaviour by other employees as she did to complaints about Mr Wakeling. In comparing inconsistent treatment I consider it was only relevant to consider how the business responded to complaints about Mr Chiu and Ms McGovern. I do so because while there may have been inappropriate behaviour by other employees they were not directors of the business. They were not in a management position. There was no dispute that it was reasonable to hold directors and managers in a business to a higher standard. 68 However I note that Ms McGovern received one complaint about inappropriate behaviour by Mr Chiu and this was only after complaints were made against Mr Wakeling. Even though she judged Mr Wakeling’s response to be retaliatory it was her evidence that she spoke to Mr Chiu about the allegations and the behaviour stopped.69 In those circumstances, I am satisfied that Ms McGovern did not act inconsistently.

Conclusion

[63] I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code and hence Mr Wakeling’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Ritchie for the Applicant.

R. Millar for the Respondent.

Hearing details:

2015.

Melbourne:

14 and 15 December.

2016.

Melbourne:

22 February.

 1   Exhibit A1 at [1]-[4]

 2   Exhibit R1 at [9] and JM1

 3   Ibid at [11]-[12]

 4   Ibid at JM3

 5   Exhibit A1 at GW2

 6   Exhibit R1 at JM4

 7   Ibid JM6

 8   Ibid at [17]

 9   Ibid at [18]

 10   Exhibit A1 at GW6

 11   [2012] FWAFB 1359

 12   [2015] FWCFB 5264

 13   Exhibit R1 at JM1

 14   Ibid at JM3

 15   Exhibit A1 at GW11

 16   Ibid at [51]

 17   Ibid at [52]

 18   Ibid

 19   Ibid at [59]

 20   Ibid at [53]

 21   Ibid

 22   Ibid at [54]

 23   Exhibit R1 at JM10

 24   Exhibit A5 at [17]

 25   See also Transcript PN 1530-1532

 26   Ibid PN 1535

 27   Exhibit R2 at JM10

 28   Transcript PN 1540

 29   Ibid PN 1655

 30   Exhibit R5 at [34]-[37]

 31   Exhibit R3 at [15]

 32   Transcript PN 1233

 33   Ibid PN 1249

 34   Exhibit A3 and Transcript PN 915

 35   Transcript PN 995-1000

 36   Ibid PN 1002

 37   Exhibit A1 at [50]

 38   Applicants outline of submissions on jurisdiction at [18]

 39   Ibid

 40   Ibid at [20]

 41   Ibid at [20.a]

 42   Ibid at [20.b]

 43   Ibid

 44   Ibid at [20.c]

 45   Ibid

 46   Ibid [20.d]

 47   Ibid [20.e]

 48   Ibid at [20.f]

 49   Ibid at [27]

 50   Transcript PN 2834

 51   Ibid PN 3837-8

 52   Ibid PN 3844

 53   Ibid PN 3854-3855

 54   Respondent’s submission on jurisdiction at 1.5.11

 55   Exhibit R1 at [24]-[25]

 56   Respondents submissions on jurisdiction at 2.14

 57   Transcript PN 4031-4036

 58   Ibid PN 4047-4048

 59   Ibid PN 4049

 60   Ibid PN 4051

 61   Ibid PN 4053

 62   Ibid PN 4077-4078

 63   Ibid PN 4081

 64   Ibid PN 4084

 65   Ibid PN 4096

 66   Ibid PN 4099

 67   Exhibit R1 at [25]

 68   Transcript PN 3851

 69   Ibid PN 2261

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