Geoffrey Scott v The Royal Victorian Eye and Ear Hospital

[2021] FWC 2604

[2021] FWC 2604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Scott
v
The Royal Victorian Eye and Ear Hospital
(U2021/1737)

COMMISSIONER BISSETT MELBOURNE, 14 MAY 2021

Application for an unfair dismissal remedy.

[1] Mr Geoffrey Scott has made an application to the Fair Work Commission in which he seeks a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Scott was employed by the Royal Victorian Eye & Ear Hospital (RVEEH) as a security officer. He commenced employment in January 2010. His employment ended on 11 February 2021 following his resignation with two weeks’ notice dated 28 January 2021. At the time of providing notice Mr Scott was stood down from his employment on full pay.

[2] The RVEEH raises a jurisdictional objection to the Commission dealing with the application for unfair dismissal on the grounds that, firstly it says Mr Scott resigned his employment such that there was no dismissal and second it says that RVEEH and Mr Scott reached a binding settlement agreement and his right to commence proceedings was extinguished by that agreement. Alternatively to the second objection the RVEEH says the application is frivolous or vexatious in circumstances where a binding agreement was made and complied with and in circumstances where Mr Scott has held alternative employment from before the time his employment with RVEEH was terminated.

[3] Prior to the hearing of the application, I granted permission to the RVEEH to be represented in proceedings.

[4] Ms Sarah Whiteside and Ms Loretta Sheales gave evidence for the RVEEH and Mr Scott gave evidence on his own behalf.

[5] The matter proceeded by way of hearing.

EVIDENCE

[6] Ms Whiteside gave evidence that she commenced employment with the RVEEH on 3 March 2020. Prior to that she worked in a human resources role in Perth. She said that in September 2020 a complaint with respect to Mr Scott was received from Ms Reidy, the After Hours Coordinator (AHC). Details of the complaint were provided to Mr Scott on 16 September 2020 (the first letter of allegations). A meeting was held with Mr Scott to allow him to respond to the allegation. Mr Scott was subsequently counselled in relation to the matter.

[7] In October 2020 a further complaint was received by Ms Whiteside in relation to Mr Scott. That complaint came from the Cleaning Manager and was in relation to a matter involving contract cleaning staff. Details of the allegation were put to Mr Scott by letter on 6 October 2020 (the second letter of allegations). A meeting was held with Mr Scott in relation to the incident and he was subsequently issued with a first warning.

[8] On 9 October 2020 a further complaint was made in relation to the Applicant’s conduct by Mr Jim Gonis, a security officer. A further complaint in similar terms to that of Mr Gonis was also made by Mr Glenn Wright.

[9] On 12 October 2020 Mr Scott was stood down on full pay.

[10] On 22 October 2020 Mr Scott was provided with a letter from RVEEH which outlined 18 allegations in relation to his conduct (the third letter of allegations). 1 This included the complaints of Mr Gonis and Mr Wright, further matters in relation to the cleaning staff and matters in relation to his timesheets. Ms Whiteside said that she drafted the letter and it was signed by Mr Rodney Craigie, Facilities Manager.

[11] On 4 November 2020 Ms Whiteside met with Mr Scott and Mr Gavin Sharpe, Mr Scott’s union representative, to allow Mr Scott to respond to the allegations. Mr Sharpe was present for the totality of the meeting. Ms Whiteside said that the notes of the meeting were provided to Mr Scott and he was given an opportunity to provide any corrections to them.

[12] Ms Whiteside undertook an investigation into the allegations against Mr Scott, including by interviewing relevant witnesses in November and December 2020.

[13] Ms Whiteside said that on 12 January 2021 Mr Scott was provided with the outcome of the investigation, consisting of a 25 page detailed finding summary and an analysis which set out the evidence and basis for each finding. 2 The investigation report found that 15 of the 18 allegations were substantiated. Mr Scott was invited to a meeting to discuss the findings and provide his feedback on 19 January 2021. That meeting was attended by Mr Scott accompanied by Mr Sharpe.

[14] Ms Whiteside said she spoke to Mr Sharpe on 21 January 2021. She advised him that, following the meeting of 19 January 2021, the RVEEH was considering dismissing Mr Scott. She said they discussed that Mr Scott was soon due for his long service eligibility but that he would lose this (under the provisions of the relevant enterprise agreement) if his employment was terminated for serious misconduct. 3

[15] Ms Whiteside proceeded on leave the following week and upon her return on 1 February 2021, was updated as to the status of the matter with Mr Scott by Ms Loretta Sheales. Ms Sheales advised her that Mr Sharpe had said Mr Scott wished to resign so as to ensure preservation of his long service leave entitlements. Ms Sheales further told Ms Whiteside that Mr Sharpe had advised her that Mr Scott would resign if:

•  RVEEH agreed that he would not be dismissed for serious misconduct;

•  He was be provided with a period of notice; and

•  He was be provided with a certificate of service confirming his accrued but unused long service leave as at the date of resignation was preserved. 4

[16] The proposal relayed by Mr Sharpe was agreed to by Ms Sheales for the RVEEH.

[17] Ms Whiteside said that on 28 January 2021 (while she was on a period of leave) she was forwarded an email received from Mr Scott that day in which he advised of his resignation. That email as written, with some redactions, said:

From: geoff scott <XXXXX XXXXX X>

Sent: Thursday, 28 January 2021 5:12 PM

To: Ian Leong <XXXXX XXXXX >

Subject: [EXTERNAL] Geoff Scott . Resignation.

Mr Leong,

This email is to formally notify you of my resignation form the position of Security at RVEEH. My notice should begin on Friday, 29/01/2001.

Please supply a certificate of employment including my long service leave and the balance of my personal leave.

Sincerely

Geoff Scott

XX XXXXX Road

XXXXX X XXX

XXXX<>XXXXX

[Mobile phone number]

[18] Ms Whiteside sent an email to Mr Scott on 9 February 2021 in which she acknowledged receipt of his resignation.

[19] Ms Loretta Sheales is the Executive Director, People and Communication at RVEEH. She assumed management of the matters with Mr Scott when Ms Whiteside was on leave for the week commencing 25 January 2021.

[20] Ms Sheales says that on 27 January 2021 she spoke to Mr Sharpe in relation to Mr Scott. She said that Mr Sharpe advised her that Mr Scott was open to a negotiated settlement and he would get back to Ms Sheales. The following day Mr Sharpe called her and advised that Mr Scott had “agreed to resign in lieu of being summarily dismissed” and that Mr Scott wanted a certificate of service recording his accrued long service leave.

[21] Ms Sheales said she was not surprised that Mr Scott wanted his accrued long service leave recorded as she became aware, soon after 19 January 2021, that the Director of the Emergency Department had acted as a referee for Mr Scott in an application he made for a security role at Austin Health and the accrued long service leave on the certificate of service would mean the accrued long service leave would transfer to Austin Health. 5

[22] Ms Sheales agreed to the proposal from Mr Scott (provided by Mr Sharpe) and advised Mr Sharpe a release agreement recording the arrangement would be sent. Mr Scott subsequently submitted his resignation in writing. On 29 January 2021 Ms Sheales emailed a release agreement reflecting the verbal discussions to Mr Sharpe. On 2 February 2021 she followed up with Mr Sharpe as she had not received the signed release agreement from Mr Scott. She followed this up again with Mr Sharpe on 4 February 2020 who advised her that he did not know when Mr Scott would sign and return the document.

[23] Ms Sheales said that, had she not reached an agreement with Mr Sharpe in relation to Mr Scott, the RVEEH would not have permitted Mr Scott to resign, would not have provided him with a period of notice and would not have certified his accrued long service leave. Mr Scott would most likely have been dismissed for serious misconduct.

[24] Mr Scott gave evidence that he was constructively dismissed from his employment at RVEEH. He said that he was targeted for dismissal and that this was the intention of human resources from the commencement of the investigation as he was “surplus” to the needs of RVEEH. 6

[25] Mr Scott said that the complaints about him commenced only after he had made a complaint on 17 August 2020 about breaches of the COVID policy. He said this complaint was private and confidential but was forwarded by the manager to whom he sent it to others at RVEEH, including HR, without his consent.

[26] Mr Scott said it was not his intention to leave the RVEEH, but after a four month investigation where he had received little support or contact by the RVEEH, he made the difficult decision to move on with his life. 7

[27] Mr Scott agreed that he was employed by Austin Health from January 2021. He said he was employed as a casual security guard working 40 hours per week and that he was “probably” earning more at Austin Health than at RVEEH. He did not consider it necessary to advise RVEEH of this employment. 8

[28] Mr Scott said that he was aware from as early as December 2020, because Mr Sharpe told him, that he could lose his accrued long service leave.

[29] Mr Scott said that Mr Sharpe told him after the meeting with Ms Whiteside on 19 January 2021 that the matter was serious and discussed with him the possibility of resignation. He said Mr Sharpe spoke to him after his discussion with Ms Whiteside on 21 January 2021 but he could not recall him saying that RVEEH was considering terminating his employment although Mr Sharpe did say to him that he should consider resigning 9 and that RVEEH “weren’t going to have [him] back at the hospital.”10 Mr Scott said that he did doubt the advice of Mr Sharpe and this was indicated by him asking Mr Sharpe if he would give the same advice to his closest friend. Mr Scott agreed Mr Sharpe had been assisting him from 13 October 2020 and was his “go to guy”.11 Mr Scott agreed he took advice from Mr Sharpe with respect to his long service leave and resignation. He also agreed that he had time to consider the advice of Mr Sharpe prior to submitting his resignation.

[30] Mr Scott agreed that he had received the settlement agreement but said he has not signed or returned it. Mr Scott agreed that he was paid two weeks’ notice by RVEEH and that he received his certificate of service which showed his accrued – but untaken – long service leave. 12

[31] Mr Scott said he knew that if he resigned RVEEH would not dismiss him for serious misconduct. 13

[32] Mr Scott agreed that he received the outcome of the investigation on 12 January 2021 and that he was invited to attend a meeting on 19 January 2021. Mr Scott further agreed that, in a conversation he had with Ms Sheales on 29 December 2020, she did not say that a decision had been made with respect to his employment, but she did say a decision had been made in relation to the investigation. 14

WAS MR SCOTT DISMISSED?

[33] I am satisfied, and it was not in dispute, that Mr Scott has made his application with the required period, that RVEEH is not a small business such that the Small Business Fair Dismissal Code does not apply and that his dismissal was not a redundancy (s.386 of the FW Act).

[34] I am also satisfied (and it was not in dispute) that Mr Scott is protected from unfair dismissal in that he had completed the minimum employment period necessary to make an unfair dismissal application and his employment was covered by an enterprise agreement (s.386 and s.382 of the FW Act).

[35] What constitutes an unfair dismissal is set out in s.385 of the FW Act:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[36] It is therefore necessary to consider if Mr Scott was dismissed. If he was not dismissed it cannot be a case of unfair dismissal and the application must fail.

[37] The meaning of “dismissed” is set out in s.386(1) of the FW Act:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[38] In reaching my conclusion I have considered the evidence of Mr Scott, Ms Whiteside and Ms Sheales. Mr Sharpe was not called to give evidence. I draw no conclusion from this. I do, however, prefer the evidence of Ms Whiteside and Ms Sheales to that of Mr Scott. I found Mr Scott’s evidence generally self-serving and lacking credibility. Mr Scott has been able to walk away from findings in relation to a number of potentially serious allegations with no dismissal on his record, with continued recognition of his service for long service leave purposes and with two weeks’ notice paid out in circumstances where he resigned while stood down (so did not provide service to the RVEEH during his notice period) and where he already had another job to go to (such that he did not need the notice period to find other work). There was little if anything to be gained by RVEEH in allowing Mr Scott to resign or in providing other benefits to him except for a desire to allow him to leave the organisation with some dignity. Mr Scott offered no explanation as to why RVEEH would do this if the intention was to be rid of him. This weighs heavily against reliance being put on his evidence.

[39] Mr Scott in this case does not suggest that he was dismissed at the employer’s initiative. Rather, he says that he was “constructively dismissed”, he was “targeted” and he “just had to go” after “four months” of investigation. 15 I accept from this that he claims that, while he did resign, he was forced to do so because of the conduct or course of conduct, engaged in by RVEEH. The conduct or course of conduct was the investigation and the time taken for that investigation arising from the third letter of allegations.

[40] Mr Scott made contradictory statements as to whether, at the time he resigned, he was aware from his discussions with Mr Sharpe that the Respondent was considering termination of his employment although agrees that Mr Sharpe had spoken to him after Mr Sharpe’s discussion with Ms Whiteside on 21 January 2021 and did encouraged him to consider resignation.

[41] Mr Scott said he did not talk to Mr Sharpe after this conversation. He resigned one week later.

[42] In O’Meara v Stanley Works Pty Ltd (O’Meara) 16the Full Bench of the Australian Industrial Relations Commission was considering the circumstances in which a resignation could constitute a termination at the initiative of the employer. After considering leading authorities on the question the Full Bench said that for a resignation to be considered a termination at the initiative of the employer there was a need for there to be:

“some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the [employee] had no effective choice but to resign.” 17

[43] In ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) 18the Full Bench said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer…Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[44] In Bupa Aged care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli (Tavassoli) 19the Full Bench said:

It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd”. 20

(footnotes omitted)

[45] After considering a range of further authorities in relation to “forced resignations” the Full Bench distilled what constitutes a dismissal in relation to s.386(1)(b) as follows:

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element. 21

[46] Given the circumstances surrounding Mr Scott’s resignation I do not accept that there was conduct or a course of conduct that left Mr Scott with no option but to resign when the conduct of RVEEH is objectively considered.

[47] I do not accept that the mere conduct of an investigation as occurred in this case – where that investigation is carried out in a manner that is procedurally fair – can be seen to be conduct or a course of conduct that leaves an employee with no choice but to resign. Each and every time an allegation was raised with RVEEH in relation to Mr Scott’s conduct it was put in writing to Mr Scott, he was given an opportunity to respond and his response taken into account prior to the determination of disciplinary action. This occurred in relation to the matters raised in the first and second letters of allegations and was the process being followed in the relation to the third.

[48] In circumstances where a number of allegations had been raised, it was entirely appropriate for RVEEH to put these in writing to Mr Scott. Although being stood down whilst an investigation is undertaken is not a pleasant experience, I do not accept that Mr Scott was isolated from the date of stand down on 12 October 2020 as he implies or that a stand down in such circumstances is a course of conduct with the intent of bringing about a termination of employment. I would also observe that Mr Scott had the assistance of Mr Sharpe from the union from 13 October 2020 and access to the EAP provided by RVEEH.

[49] The evidence does not support a conclusion that the RVEEH embarked on the investigation with the intention of bringing Mr Scott’s employment to an end. RVEEH had received credible allegations in relation to Mr Scott – it was bound to investigate those allegations.

[50] Despite the assertion of Mr Scott, the investigation of the matters raised in the third letter of allegations did not take four months as he claimed. Mr Scott was stood down on 12 October 2020 and was provided with the outcome of the allegations on 12 January 2021 – some three months later. Some of this delay may be attributable to Christmas (where Ms Whiteside says she had difficulty accessing some people for interview) but is also attributable to RVEEH ensuring Mr Scott’s representative – his “go to guy” in Mr Sharpe – was available to assist and accompany Mr Scott.

[51] When he resigned on 28 January 2021 Mr Scott, on his evidence:

•  Was aware of the investigation findings in relation to the third letter of allegations;

•  Was aware he could lose his long service leave;

•  Knew that Mr Sharpe, his union representative, thought he should consider resigning;

•  Had “taken advice” from Mr Sharpe with respect to his long service leave and a resignation;

•  Knew that if he resigned he would not be dismissed by RVEEH.

[52] By virtue of resigning on 28 January 2021 Mr Scott was paid for a further two weeks (although did not have to present for work as he remained stood down); did not have a dismissal recorded and received a certificate which recognised his service with RVEEH for long service leave and recognised his accrued and unused personal leave, the effect of which was to make his accrued entitlements “portable” to Austin Health. 22

[53] In accepting Mr Scott’s resignation (which it was not obliged to do) RVEEH allowed Mr Scott to receive further pay beyond the date of resignation by allowing him to give two weeks’ notice, allowed his personal leave and service for long service leave purposes to be recognised and did not dismiss him for serious misconduct with that not being recorded on his file.

[54] On balance I am satisfied that Mr Scott knew, at the time of his resignation, that RVEEH was considering terminating his employment. From the events and timelines as described in the evidence, I infer that, despite the evidence of Mr Scott to the contrary, at the time he resigned Mr Scott was aware that RVEEH had agreed with Mr Sharpe to the request of Mr Scott that he be able to resign with the benefits described above. It is not otherwise apparent as to why Mr Scott would think to resign with notice and with a request for the certificate of recognition of his service. That Mr Scott was aware of these benefits explains his resignation and his timing of that resignation.

[55] I would observe that a resignation with two weeks’ notice, does not suggest that Mr Scott was forced to resign by the conduct or a course of conduct by RVEEH.

[56] In his written submissions Mr Scott states that the conduct of RVEEH was “so egregious, wilfully damaging and distressing that by its nature it severed the employee/employer relationship. HR were so oppressive, prejudiced and capricious that they created OHS issues for my mental and physical health, they deliberately damaged my professional/personal reputation.” Further, he claims that the process (of investigation in relation to the third letter of allegations) was “mechanical” with “the end in mind, it was a sham, sadist psychological warfare". Further he says the motivation (of People and Culture) was “to create a harsh, toxic environment where HR had the capacity to traumatize and torment.” Mr Scott’s submission continues in a similar vein and is not further repeated here. For these reasons Mr Scott says he had no choice but to resign.

[57] The evidence before the Commission of the conduct of the staff of RVEEH, objectively considered, does not support such a conclusion. I am satisfied that the RVEEH acted fairly and openly throughout the process. There is nothing in the conduct of Ms Whiteside or Ms Sheales which was “egregious” or “wilfully damaging” or otherwise fits any of the descriptions given to it by Mr Scott. Each, by their actions, has treated Mr Scott with respect, has afforded him procedural fairness in undertaking an investigation and providing a detailed report of the outcomes of that investigation. Ms Whiteside and Ms Sheales also ensured Mr Scott had access to union and other support and allowed Mr Scott to resign with the benefits outlined above. This is not the conduct of anyone engaged in “sadist, psychological warfare” or other things of which Mr Scott complains. Further, beyond him being stood down with pay during the investigation Mr Scott provides no evidence of those things he complains of. I do not discount that Mr Scott may have felt under pressure during the investigation and this may have caused him to seek medical assistance or that he believes matters should have been dealt with in some alternative manner but this is not evidence that he was forced to resign by conduct or a course of conduct engaged in by RVEEH. Mr Scott has not identified a single piece of conduct or a course of conduct – beyond that RVEEH undertook an investigation – to support his contention. I do not accept his submissions in this regard.

[58] To the extent that Mr Scott says that his physical and mental health have been affected by conduct of RVEEH as I have said above, I accept that an investigation of this type can be stressful. However, that he is being treated for that stress is not evidence to support a claim that Mr Scott was forced to resign by the conduct of RVEEH. In this respect I would note that Mr Scott has not been so adversely affected that he cannot continue in his work at Austin Health that commenced in January 2021 where he works 40 hours per week, but in any event I have no medical evidence of any probative value as to his claim.

[59] I would observe that Mr Scott did not have to resign and does not say that the outcome of the investigation is what forced him to resign. It was open to Mr Scott to remain employed by RVEEH and plead his case. He could have disputed the findings and the ultimate decision of RVEEH with respect to his employment. But he did not do so. Rather, I am satisfied that Mr Scott, knowing he may be dismissed, chose a course of action which allowed him to maintain a clean employment record and obtain some financial benefit through recognition of his service.

[60] For these reasons I am not satisfied that Mr Scott’s resignation was caused by conduct or a course of conduct of his employer that left him with no choice but to resign. Mr Scott was therefore not dismissed from his employment as defined in the FW Act. I am therefore satisfied that the Commission has no jurisdiction to deal with the application.

[61] The application is therefore dismissed. An order 23 to this effect will be issued with this decision.

[62] In these circumstances I do not need to consider if a settlement agreement was reached between Mr Scott and RVEEH (although I do note he has received all of the benefits that were, apparently coincidentally, articulated in that agreement) or if his application is made vexatiously or frivolously (also noting that Mr Scott does not appear to have suffered any loss to date that the Commission has power to provide compensation for).

COMMISSIONER

Appearances:

G. Scott on his own behalf.

N. Harrington of counsel, for the Respondent.

Hearing details:

2021.

Melbourne by video.

28 April.

Printed by authority of the Commonwealth Government Printer

<PR729650>

 1   Witness statement of Ms Sarah Whiteside, annexure SW-13, Court book page 69.

 2   Witness statement of Ms Sarah Whiteside, annexure SW-14, Court book page 102.

 3   Transcript PN216.

 4   Witness statement of Ms Sarah Whiteside, annexure SW-13, court book page 32.

 5   Witness statement of Ms Loretta Sheales, court book page 15.

 6   Transcript PN417.

 7   Ibid PN415.

 8   Ibid PN475 - 492.

 9   Ibid PN457.

 10   Ibid PN802.

 11   Ibid PN461 - 464.

 12   Ibid PN468.

 13   Ibid PN559.

 14   Ibid PN532.

 15   Ibid PN414 - 415.

 16   PR973462.

 17 Ibid at [23].

 18 Print N6999, cited in O’Meara at [22].

 19   [2017] FWCFB 3941.

 20 Ibid at [34].

 21 Ibid at [47].

 22   See Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 at clause 82. This Agreement provides that an employee is entitled to long service leave with pay for “continuous service with one and the same Employer, or service with Institutions or Statutory Bodies” in accordance with the provisions of the clause. An “Institution” means “any hospital or benevolent home, community health centre, Society registered pursuant to the Health Services Act 1988 or the former Hospital and Charities Act 1958. The exception to such recognition with respect to long service leave is for an employee with between 10 and 15 years’ service whose employment is terminated for serious and wilful misconduct.

 23   PR729869.