Gillian Douglas v Bynoe Community Advancement Cooperative Society Ltd

[2017] FWC 4374

[2017] FWC 4374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gillian Douglas
v
Bynoe Community Advancement Cooperative Society LTD
(U2017/4166)

COMMISSIONER SIMPSON BRISBANE, 11 OCTOBER 2017

Application for an unfair dismissal remedy – Allegations of fraud against employer - Dispute as to whether dismissal was retaliatory –– History of non-attendance and failure to follow lawful direction – Employer argues dismissal ultimately for alleged breach of confidentiality – Valid reason based on accumulation of matters over time - Process procedurally flawed – Weighing all factors in totality dismissal not unfair.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Gillian Jean Douglas who alleges that the termination of her employment with Bynoe Community Advancement Cooperative Society Ltd (Bynoe) was unfair.

[2] Ms Douglas commenced employment at Bynoe in August 2014 and commenced her most recent role as an “RJCP Employment Advisor” in September 2014 until her dismissal on 31 March 2017. Ms Douglas was employed on a permanent full time basis.

[3] It was not in dispute that the Fair Work Commission (FWC) had jurisdiction to hear and determine the application on its merits. Bynoe is not a small business and therefore the Small Business Code does not apply. The matter was heard by video and telephone in Brisbane on 23 August 2017. Ms Douglas was represented by Ms Bonnie Djordjevic of the Aboriginal and Torres Strait Islander Legal Service and Bynoe was represented by Mr Fred Pascoe, Chief Financial Officer of Bynoe.

[4] Ms Djordjevic appeared by telephone from Mount Isa, Mr Pascoe and all other witnesses in the matter appeared by video from the Normanton Court House, except Ms Robinson who appeared from Toowoomba as she was not in Normanton at the time of the hearing.

[5] Ms Douglas filed an affidavit dated 25 July 2017, 1 and a further affidavit in reply of 18 August 2017. 2 Ms Douglas also relied upon an Outline of Argument filed on the morning of the hearing.

[6] Bynoe relied on affidavits from Mr Fred Pascoe dated 24 August 2017, 3 Mr Wade Richardson the Manager of CDP at Bynoe dated 4 August 2017,4 Mr Colin Woodman the Chief Financial Officer of Bynoe dated 4 August 2017,5 and Ms Jane Robinson a consultant engaged by Bynoe dated 4 August 2017.6

BACKGROUND

[7] Mr Woodman, whose duties were extended to include human resources issues in 2016 in the absence of a HR Manager, gave some background about Bynoe. Bynoe receives federal and state funding and was originally commenced in 1975 as a housing co-operative to provide housing for members of the co-operative in the Normanton area. Over time Bynoe extended into a number of federally funded programs including the Community Development Program (CDP) commonly known as “Work for the Dole Scheme”. The CDP operates on a five year contract between Bynoe and the Office of Prime Minister and Cabinet (PMC). 7

[8] Mr Woodman said the current CDP contract expires in 2018 and Bynoe will tender again. He said the tender process is competitive, and the contract terms are strictly administered by PMC and breaches can lead to termination of the contract. Mr Woodman said at the time of Ms Douglas’ termination Bynoe was under some pressure from PMC for not meeting key performance indicators required under the contract. This resulted in PMC asking for significant improvement requests to Bynoe’s CDP managers.

[9] Mr Woodman said that PMC undertook a number of audits of Bynoe’s CDP records. He said the CDP contract is the major income source for Bynoe, and the program directly employs 29 of Bynoe’s workforce of 72. He said it is estimated a further 18 indirect employees would lose their position or have hours significantly reduced should Bynoe lose the CDP contract with PMC. 8

[10] Ms Douglas said that she had been employed with Bynoe previously from 1992 for a period of approximately five years. 9 Ms Douglas said her most recent position with Bynoe was as an “Employment Advisor” and she was employed in that full time role for 2 and a half years.10

[11] Ms Douglas said in summary she was an employment consultant for Work for the Dole (WDF) job seekers. Ms Douglas said that the position description included;

(a) Assisting program participants fulfil their program requirements;
(b) Developing individual pathway plans with participants;
(c) Conducting initial appointments and assessments; and
(d) Providing ongoing input and monitoring for activities.

File Note 11 January 2017

[12] Mr Richardson, who was Ms Douglas’ Manager, attached to his statement what he said was a file note that he documented after a verbal conversation with Ms Douglas on 11 January 2017. The note included that he said he spoke in a quiet and calm manner to Ms Douglas asking that she focus on time sheets as they were falling behind and that he would speak with the team. Mr Richardson claimed Ms Douglas responded that she does things her own way and that there are people that come into the office and it’s hard to get done, and that she would make sure her part of time sheets gets done.

[13] Mr Richardson claimed that he replied that he also needed her to pick up the other time sheets as Edmond and himself are in training and she replied that they can catch up tomorrow when they get back. Mr Richardson’s note says that he replied to Ms Douglas that she only has eight contact appointments today and one initial so it’s a good opportunity to get on top of the time sheets.

[14] Mr Richardson’s note records that Ms Douglas responded that she does not bludge or go over to the other building talking. Mr Richardson claimed he responded that she was taking this the wrong way and that all he was doing was identifying what we needed to improve and that the previous week we had 30 + appointments each day though the week and managed with just two staff members. Mr Richardson claimed Ms Douglas responded that she doesn’t take things the wrong way and once again said that she will do thing her own way.

Alleged Failure to follow lawful instructions

[15] Ms Sharon Robinson gave evidence that on 20 February 2017 a request was received from Janice Cusack from PMC for documented evidence for 71% of cleaning and retail arts activity. Ms Robinson said she sent the request on to all CDP staff the same day asking they start to gather evidence. Ms Robinson said she rang to enquire when the PMC needed to have this information and was informed by close of business 24 February 2017. 11

[16] Ms Robinson said that she sent a request to the PMC on 21 February asking for an extension of another week as both activities were Ms Douglas’ and she was away at the time. Ms Robinson said the extension was granted.  12

[17] Ms Robinson said that on three separate occasions, 10 October 2016, 13 November 2016 and 27 November 2016, she sent emails asking all staff when they are setting up the activity diary, only to do one week at a time. Ms Robinson submitted that despite these directions, Ms Douglas continued to set up the activity diary for two weeks.

[18] Ms Robinson said the process of putting two weeks into the activity diary means that at the end of the week when she has to balance the weeks’ attendance to a zero amount she is forced to go through and dedicate hours to make sure each person for the first week actually has a zero balance. Ms Robinson said that this resulted in her having to expend extra hours of unnecessary work, and all other staff (except Ms Douglas) took notice and once informed never repeated the process. 13Whilst Ms Douglas’ reply affidavit said it was in response to the four affidavits filed by Bynoe it does not challenge Ms Robinson’s evidence. Ms Douglas’ representative did not seek to cross examine Ms Robinson.14

[19] Ms Douglas said that on Monday 27 February 2017 at 9.40am, Mr Richardson informed her that she was to audit all “Did Not Attend Valid Reasons” (DNAV) for cleaning and retail arts activities from 6 to 20 February 2017 for PMC. Ms Douglas said this was a large job that would normally take her 1 to 2 days if she was not interrupted. 15

[20] Mr Richardson gave evidence that he spoke to Ms Douglas about the request from PMC for evidence for validation of participants non-attendance in cleaning and retail acts activity and sent two emails about the request on the afternoon of 27 February. 16 Mr Richardson said that this was part of Ms Douglas’ caseload and she was the Employment Advisor that actioned the DNAV in the activity diary.

[21] Mr Richardson said in their verbal conversation Ms Douglas said to him that she will not do this and if the PMC wanted this information they should come and do it themselves. Mr Richardson said in the month leading up to this he had conversations with PMC concerned for the high number of DNAV and mentioned that there could be random audits on activities from PMC. Mr Richardson said this was not actioned by Ms Douglas and was completed by him. 17

[22] Mr Richardson explained in his oral evidence that PMC was requesting information from Bynoe because the DNAV records were sitting at 75% whereas the statement average was sitting down to 35% and that is what triggered the investigation from PMC. Mr Richardson said Ms Douglas was in charge of these activities and he requested the documentation that PMC requested for auditing purposes. Mr Richardson said step one was to put comments in the system and step two was to provide documentation.

[23] Mr Richardson gave as an example if someone called in sick it would be recorded as “Did not attend – valid”, and recorded as “medical”. Mr Richardson then said the person would be asked to supply a medical certificate to put in the file. He said that was the documentation PMC was asking for; it was not just comments in the system. Mr Richardson said at first Ms Douglas refused and said she was not going to do it and PMC could come and do it themselves. He said after a conversation with Ms Douglas they decided that Ms Douglas was going to do it.  18 Mr Richardson referred to emails to Ms Douglas at the relevant time attached to his statement.19

[24] Ms Douglas’s evidence was she was in the office on her own and answering phones and doing administrative work as well as her own work. She also said they had staff training from 1pm to 4pm on the same day which made it impossible to do the task that day. Ms Douglas also said she was left on her own in the office again the following day and was unable to complete the audit for PMC. 20 Mr Richardson rejected this evidence saying that there were six other staff members present at work on the Monday including his own attendance confirmed by Ms Douglas. Mr Richardson said Ms Douglas was not correct that she was alone the next day either as only Edmond Busch was in training, at the time and all other staff were signed into work.

[25] Mr Richardson said in his oral evidence regarding the training commitments that week that, as show from attachment 3 to his statement, only one member per team was involved in training each day, and it was only for three hours on those days so there was plenty of time for Ms Douglas to complete the request from PMC.

[26] Ms Douglas said she told Mr Richardson a number of times verbally she was unable to complete the audit as she was travelling to Townsville on Thursday 2^nd and Friday 3^rd of March using leave without pay. 21

[27] Ms Douglas claimed that Mr Richardson told her that he understood and to email himself and the other Administrator Ms Robinson explaining the situation and he would “have my back”. 22 Ms Douglas claimed that the next day she was again left in the office with no assistance due to other staff training commitments. Ms Douglas said she sent an email as instructed by Mr Richardson to Ms Robinson and Mr Richardson advising she would not be able to complete the audit before she went away and stating the reasons. A copy of the email was attached to her affidavit.23 Ms Douglas said she did not get a response to the email so assumed everything was okay. Mr Richardson said there were three other employees at work on the Wednesday contrary to Ms Douglas’s evidence.24 Importantly Mr Richardson denied Ms Douglas’ claim that she spoke to him about not completing the request or that she may not complete it, and it was not until he checked his email on 2 March that he was aware that the task was not completed and he did not respond to Ms Douglas’s email as she was absent from work and did not have access to work email.25

[28] The Outline of Submissions filed for Ms Douglas accepted that she had failed to follow a lawful direction by not completing her audit for PMC prior to Friday 3 March 2017.

[29] Mr Pascoe submitted that each of the participants in programs are assigned or allocated certain activities every day. He said for participants who don’t attend, Bynoe is required to record “Did not attend – valid”, or “Did not attend – invalid”. Mr Pascoe said when PMC queried cleaning and retail arts those activities were in Ms Douglas’ allocations. Mr Pascoe said the query from PMC was why all of these participants were recorded as “Did not attend – valid”. Mr Pascoe said the simple question was why were these persons recorded as having a valid reason for not coming to work as Bynoe needed to provide the reason to the PMC. Mr Pascoe said all Ms Douglas had to do was give examples for the reasons and it would not have taken one or two days if it was already lodged. 26

[30] Ms Douglas responded that she had been putting reasons in what she called the timesheet on the system. Ms Douglas also said with retail arts, a lot of the time the supervisor was not there. Ms Douglas also said it was the rain season and people were on sick leave. 27 Ms Douglas claims the information was entered before PMC asked for the audit, however it would still take her two days to “double-check”.28

[31] Mr Pascoe put that as Ms Douglas should have been recording the reason for participants not attending on a daily basis, Ms Douglas should have had the information and did not need two days to re-do it. Mr Pascoe put the proposition that Ms Douglas had been found out because she was not following up and finding out when participants did not attend. Ms Douglas said she did ring the supervisor up at retail arts when she is there and check who has attended and who hasn’t attended. Ms Douglas said she is not required to ring the individual themselves. 29 Mr Pascoe put that staff were sent numerous emails that PMC were getting alarmed at the number of “Did not attend – valids” and Bynoe needed to have its reasons, and to contact the individual rather than just talking to the supervisor.30

[32] Mr Pascoe said the office has a front desk reception so not all phone calls were going through to Ms Douglas as only calls relevant to her would be put through to her.

Unauthorised leave from work 6 and 7 March 2017

[33] Mr Woodman said Bynoe has a Human Resources Policies and Procedures Manual and a copy of it is available to all of Bynoe’s departments, reception area and staff smoko room. Page 33 of the manual sets out the staff leave requirements. Ms Douglas said that a CDP Procedures Manual was available on site however a HR Policy was not readily available. Mr Woodman said an application for leave dated 17 February 2017 was received from Ms Douglas requesting leave from 22 February 2017 to 24 February 2017 including 1 days TOIL time of 7.6 hours. He said while the application did not meet the minimum 1 weeks’ notice in the policy the leave was approved. Mr Woodman also said an application dated 20 February was received requesting two days compassionate leave on 20 February and 21 February and this was granted.

[34] Mr Woodman said an application for leave dated 27 February requesting leave for the period Wednesday 8 March to Wednesday 15 March 2017 inclusive was received. He said the original request was for six days compassionate leave and was rejected as the policy provided for a maximum of five days. Mr Woodman said Ms Douglas amended the application to four days annual leave and two days compassionate leave and noted her protest on the leave form.

[35] Mr Woodman said Ms Douglas then lodged a further leave form dated 27 February for two days leave without pay for Thursday 2 March and Friday 3 March. This was accepted. 31

[36] Ms Douglas said that on Monday 6 March she was meant to be back at work but could not get a lift from Townsville back to Normanton. She said she sent a text message to Mr Richardson that she would be unable to come back to work due to “transport issues”. 32 Ms Douglas said she advised she would be in the following day (7 March) and would let him know if anything changed.

[37] On both 6 and 7 March 2017 Ms Douglas failed to attend work. Mr Woodman submitted that as well as failing to attend work, Ms Douglas failed to provide any leave forms for her absence.

[38] Ms Douglas accepted that by not attending work on 7 March, and by not letting anyone know, that she was on unauthorised leave. Ms Douglas said that she did not deliberately inconvenience anybody; and she was simply grieving a loss in the family. 33

[39] Mr Richardson messaged Ms Douglas on 7 March to see if she was attending work, however Ms Douglas stated as she had pre-approved annual leave from 8-15 March 2017 and because of her grief she did not respond. 34

[40] The Outline of Submissions filed for Ms Douglas accepted that she had failed to submit leave forms and was on unauthorised leave on both Monday 6 and Tuesday 7 March.

[41] Mr Richardson said that Ms Douglas sent him a text after the commencement time on 6 March which did not allow him sufficient time to organise staffing. He said the text message clearly stated that she would return to work tomorrow and notify him if there was any change. Mr Richardson said Ms Douglas admitted that she did not contact him for her absence on 7 March.

Unauthorised leave from work 16 and 17 March 2017

[42] Again on 16 and 17 March 2017 Ms Douglas failed to attend work. Mr Woodman submitted that again Ms Douglas failed to produce leave forms for either day. Ms Douglas alleges that she was unable to acquire transport home to Normanton from Townsville on the 15 March 2017. She attempted to contact Mr Richardson, however she was unable. Ms Douglas submitted she did not arrive home until the morning of 17 March 2017. Ms Douglas submitted she messaged Mr Richardson to inform him of her situation and that she would be attending work on the 20 March 2017. She again admits that her failure to attend work was unauthorised leave. 35

[43] Mr Richardson said that he called Ms Douglas on Thursday 16 March, the day she was due back at work and he got no answer until 17 March via a text message that she was unable to attend work. 36

[44] The Outline of Submissions filed for Ms Douglas accepted that she had failed to submit leave forms and was on unauthorised leave on both Thursday 16 and Friday 17 March.

17 March discussion between Mr Richardson and Mr Woodman

[45] Mr Woodman said that on 17 March Mr Richardson came to see him in his office and they discussed Ms Douglas’ failure to attend work on 6 and 7 March and 16 and 17 March 2017. Mr Woodman also said in Mr Richardson advised him that Mr Douglas had promised him she would complete the PMC audit requisition matters on Monday 6 March and Tuesday 7 March before going on leave, and Ms Douglas did not attend work on those days. Mr Woodman said it was his understanding PMC had granted one extension to complete the audit request.

[46] Mr Woodman also said Mr Richardson further discussed his concerns with Mr Woodman regarding Ms Douglas’ attitude to taking directions from him to complete requested work and tasks and her continual questioning of his authority to request that work be done. In particular Mr Richardson raised the failure of Ms Douglas to complete the audit requisition activities that were allocated to her in her role as Employment Advisor.

[47] Mr Woodman said that Mr Richardson also advised him that there was an ongoing problem of Ms Douglas pre-populating CDP participant hours for the next week into the computer system operated by PMC. Mr Woodman said that Mr Richardson said he and CDP Consultant, Ms Robinson had requested on numerous occasions since September 2016 that Ms Douglas not do this. Mr Richardson said that Ms Douglas flatly refused to comply with this request. Mr Woodman said that it was agreed that Ms Douglas would be given a written warning for failure to attend work on the days discussed, and for failure to follow a lawful instruction. Mr Woodman said the letter was authorised by himself and given to Mr Richardson to be given to Ms Douglas when she next attended work. 37

20 March 2017 Request to drive to Karumba

[48] Ms Douglas said that on 20 March she attended work Mr Richardson asked her to drive to Karumba for an appointment with a jobseeker the following morning. Ms Douglas said she told Mr Richardson she could not due to her medical condition (sleep apnoea). Ms Douglas said she requires notice to drive long distances and Mr Richardson was aware of her condition. 38

[49] Mr Richardson said that he had previous discussions with Ms Douglas about her condition and that Ms Douglas had requested that she be included in the roster to attend the outreach appointments. Mr Richardson said that he felt the 24 hours’ notice he had given Ms Douglas to drive the 79 km or 45 minute drive was adequate notice for this small distance. 39

[50] Mr Woodman said he was not aware of Ms Douglas ever falling asleep at work. He said the drive was only 45 minutes and he did not consider it to be a long distance. He said visits to Karumba usually occur around mid-day to coincide with participants completing their WFD activity at noon. Mr Woodman said he did not think that the request was unreasonable and he makes the point to demonstrate the obstructive nature demonstrated by Ms Douglas in her position. 40

21 March 2017 - Written Warning

[51] On 21 March 2017 Mr Richardson handed Ms Douglas a written warning regarding unsatisfactory work performance and attendance. The reasons stated for the issue of the warning were:

(a) Unauthorised leave from work; and

(b) Failure to follow a lawful instruction of your manager.

[52] Ms Douglas submitted she asked Mr Richardson for an explanation of the warning, specifically what the warnings were for, however he provided no explanation. 41

[53] Ms Douglas said she was unsure whether the ‘failure to follow lawful instructions’ was due to failure to complete the audit for PMC or for saying she could not go to Karumba. Ms Douglas claimed that she then asked Mr Woodman for an explanation, however he stated that she did not follow instructions and questioned everything. 42

[54] Mr Richardson claimed that he handed Ms Douglas the warning letter in the morning and said to her that he would be happy to have a chat in regards to her warning letter. He said he also informed her that if she was not happy with the warning that she would need to speak with Mr Woodman.

[55] Mr Richardson said in his oral evidence the reference to failure to follow a lawful instruction was in reference to not fulfilling the job tasks set for her being the PMC request for an audit her activities. He said it was also referring to the bulk updating activity diaries when asked not to for the specific hours she was entering in. He said it was also not following the correct procedures for entering the job plans and time sheets. 43

22 March – allegation Ms Douglas left work early

[56] Mr Woodman said in his evidence that records indicated Ms Douglas clocked on her timecard on Wednesday 22 March but left early on that day and did not clock off. Mr Woodman said that no leave form was submitted that day and she would not have been paid. 44

[57] Ms Douglas denied that she left work early on that day. Ms Douglas admitted that the timecard showed she did not clock off. Ms Douglas claimed she worked late that day until 5.30pm and by the time she went home the office where staff clocked off was closed. 45 Ms Douglas attached notes to her statement she claimed demonstrated she did not finish work until 5.30pm.

[58] Mr Woodman responded in his oral evidence that Mr Edmund Bush and himself both clocked up after 5.30pm and that he was the last person to leave the office and he had the time cards to prove that. He conceded that whilst Ms Douglas did not fill out a form that can be completed where an employee has failed to clock off, it is possible she was at work when she said she was. 46

29 March – allegation Ms Douglas late for work

[59] Mr Woodman said that on 29 March Ms Douglas was 17 minutes late for work. 47Ms Douglas admitted that she started work late on that day but said she worked overtime that day to make up for it. Ms Douglas said she called to advise she would be late that day. 48

Alleged Breach of confidentiality

[60] On 28 March 2017 Ms Douglas alleges that Mr Richardson emailed everybody asking them to update jobseeker plans so that participants could commence Work for the Dole activities straight away. Ms Douglas submitted this is something she has previously questioned as job seekers are not meant to commence work until they are in receipt of their DHS payments. 49

[61] Ms Douglas alleged that at Bynoe however a new jobseeker attends their initial appointment at which they are not in receipt of DHS payments, but are placed on a Work for the Dole activity and commence the following day as a volunteer. 50

[62] Ms Douglas said Bynoe receives a ‘basic payment’ as a fee for the volunteer from the PMC. Ms Douglas alleged that the jobseeker is unaware that they are volunteering as they believe they are required to attend as part of their WFD commitments and risk not receiving payment if they do not. Ms Douglas alleges job seekers probably would not want to participate in the activities if they knew they did not have to. 51

[63] Ms Douglas claimed job seekers unknowingly volunteer until their DHS reporting date at which they receive payment. Ms Douglas alleges at that point Bynoe then updates the job seeker job plans so job seekers are active participants in the CDP system and receive another fee for their WFD participation. Mr Pascoe put that he disputed the claim participants were not told they when they were volunteering. 52

[64] Ms Douglas submitted that job seekers are being misled to volunteer. In her reply statement Ms Douglas confirmed her evidence that she says she was concerned that Bynoe was misleading job seekers to believe that they were required to work an extra week or two, so that Bynoe could receive the ‘basic payment’ fee for a ‘volunteer’ from the PMC. Ms Douglas queried this in an email to Mr Richardson and forwarded a copy of the email to her personal email account. She confirmed she did this because she said she began to think her employment was in jeopardy and accordingly she wanted evidence of her discussion about fraud concerns with Mr Richardson. 53 Ms Douglas said that a few days later her employment was terminated.54

[65] In her reply statement Ms Douglas said she accepted that job seekers are told that they will commence their WFD activity the day after their initial appointment as a voluntary participant, and that the day after their first DHS payment they will be changed to compulsory, however they are not told that they do not need to participate in the voluntary activities after the initial payment in order to receive payments. Ms Douglas also said that the participants are not told that Bynoe receives an extra fee for their voluntary participation. 55

[66] The email she sent to Mr Richardson and herself included the following:

“Regarding your email yesterday and the list from Sharon (email sent to you on Sat 25/3/2017) regarding JP’S to be updated.

I have received, read and understood the lawful instruction from you as one of our Manager’s.

I understood the selected clients you have highlighted for me to do. I did inform you that I declined to have contact with a jobseeker that you have selected for me and you did ask for a reason and I did inform you that it was personal.

………and …….were assigned to me. I informed you that I have explained in their comments why I have placed them into their WFD Activity until those dates (3/04/2017 and 04/04/2017). Sharon (CDP other Manager) states “not sure why the long wait”. Please read the Jobseeker’s comments regarding their Initial Apts, in there you will see that I have provided reasons.

I have informed you (Wade), if this is incorrect how I process new Jobseekers at their initial Apts and is not receiving Centrelink Allowance at the time of their intial (sic) Apt. I have asked you (Wade) to provide supporting document stating why I should place these Jobseekers in a WFD Activity and Commence them in their WFD Activity on the day of their initial and to commence them the next day even tho (sic) the JS is not in receipt of DHS Allowance. I have also informed you that both JS’S were given a DHS Reporting Date and this is the date they will receive their first Centrelink Allowance and I have also stated that once they have received their payment “then” they can commence their WFD Activity on the date that I have provided. I don’t belive (sic) I should place the JS as Voluntary in their JP due to them not receiving their first DHS Allowance until a certain date given to them by DHS to report. JS (not receiving DHS allowance) placed in the system as Voluntary has had Compliance Report submitted for them and this still remains an issue in our CDP Office and this is the one (sic) of the reasons for ……..and …….., also CDP getting paid for their attendance, DNAV, DNAI. If this is not commetting (sic) fraud then please provide supporting lawful documents for me to understand the process better.

……………………………………………

…Jobseeker’s paid work hours is more than her WFD Activity hours but due to the lawful instruction from my Manager (You and Sharon) I was forced to comment (sic) fraud due to how Management instructed the CDP Staff to reduce the Jobseekers paid employment hours. If I did put the correct paid work hours in for the JS, this would come up in an email from Sharon stating to fix the JS job plan stating the error to fix and to go out and bring this JS into the office and update the JP.

……………………………………………

Please keep in mind that I do understand your reasonable instructions given to me and the way you want the tasks to be carried out. I have not refused to do the work and I have not argued about it, only questioned the task and share information regarding those JS assigned to me. I do ask questions alot (sic) only because I do take into consideration fraud but if I do not comply with the lawful instruction of my Manager, I will receive a written warning letter from HR by YOUR request once again and is forced to commit fraud.

Please provide supporting documents if need to, inregards (sic) to this matter so that I could understand the reasons why I have to do the process the way my CDP Management (You & Sharon) instructs us to do.”

[67] Mr Richardson outlined the following process in his statement;

● Participant submits a claim to Centerlink
● Centrelink automatically initiate an appointment (initial with a provider, in this case Bynoe)
● Participant attends initial with Bynoe
● At this initial appointment all aspects of their mutual obligations are explained to them and actioned, a small part of this initial process is creating a job plan
● Depending on the timing of their initial job seekers can either be compulsory or voluntary, this is depending on the progress of their claim on how long JS stays voluntary, this whole process is completed in 14 days.

[68] Mr Richardson said that 98% of job seekers are already placed into compulsory by the time they attend their initial appointment. He said the small percentage that are voluntary will only be for a short period of time usually only a few days until their claim has been approved.

[69] Ms Douglas disputed this. Ms Douglas said on 28 March Mr Richardson emailed her team to ask them to ‘update’ and ‘fix’ job plans for a list of job seekers. Ms Douglas said that she had explained to those particular job seekers at the initial appointment that they did not need to participate as volunteers. Ms Douglas said for that reason they chose not to commence until they day after their DHS payments arrived and their participation was compulsory. Ms Douglas said she was the only Employment Advisor explaining this properly to the job seekers as she thought it was unfair to take advantage of people who did not understand the system properly. 56

[70] Mr Richardson said that if a participant is voluntary at the time of their initial appointment, it is the responsibility of the Employment Advisor to highlight this to the jobseeker and to ensure the job seeker then has a follow up appointment within the next week so that the job plan can be updated to have compulsory activities.

[71] Mr Richardson said that if Ms Douglas had a person who is voluntary at the time of their initial appointment it would be her responsibility to explain to the job seeker that they are voluntary until their next appointment at which time if their Centrelink claim has been approved they will become compulsory and will be required to attend their activities to ensure their continued Centrelink payments. Mr Richardson said these instructions have been given to all staff members upon employment and continued training and group discussions take place at weekly meetings. 57

[72] Mr Richardson said that he took it upon himself to contact PMC and speak with the Regional Manager asking about this issue and he was informed that it’s part of the requirements of PMC that Bynoe make sure for any job seeker going into any paid employment, that Bynoe record their hours on their individual job plan and that if their hours exceed their mutual obligation hours then they are exempt from attending their WFD requirements. However in the circumstances that they do not turn up to that paid employment and fulfil those mutual obligation hours, Bynoe then have to have the WFD component open in their job plan so they can slip back in and fulfil their requirements. Mr Richardson said he had spoken to Ms Douglas about this a number of times and told her it is not fraud. Mr Richardson said he had confirmation from PMC and Ms Douglas just refused to take Mr Richardson’s word for it. Mr Richardson said that PMC had assured Bynoe that they are fulfilling the correct requirements and following the correct procedures. 58

[73] Mr Richardson flatly denied that the sending of the email by Ms Douglas on 29 March was part of the reason for dismissal. 59 I took Mr Richardson’s evidence in this regard to be in reference to the allegation of fraud, and not the issue of sending the email to her private email account. Ms Douglas admitted Mr Pascoe’s evidence that she had never approached or reported or made a complaint to him that she was being directed to commit fraud.60

[74] On 29 March 2017 Bynoe alleged Ms Douglas sent an email containing confidential information to an unauthorised email address in breach of her workplace agreement and Division 3 of the Social Security (Administration) Act 1999 (Cth) (29 March email).

[75] Mr Richardson said that on 30 March 2017 Ms Douglas sent confidential information to an unauthorised outside email address (30 March email). He also claimed that on 2 November 2016 Ms Douglas sent job seeker details with signatures to an unauthorised outside email address (2 November email).

[76] Mr Woodman said that on Thursday 30 March he became aware that Ms Douglas had sent the 29 March email. Mr Woodman said the email contained confirmation that Ms Douglas did not want to have contact with a certain participant that was part of her case load. Mr Woodman said the email contained the name and personal information of five participants. Mr Woodman said the email included an explanation of why Ms Douglas said she could not do her job because her manager Mr Richardson and Consultant Ms Robinson were forcing her to commit fraud. 61

[77] Mr Woodman said that following the notification of the information in the email being sent to an unauthorised email address it was discussed at a meeting at about 5pm on Thursday 30 March 2017 which included Mr Woodman, Mr Richardson and Mr Pascoe the CEO. Mr Woodman said it was decided that Ms Douglas would be terminated for reasons including the unauthorised leave, and serious misconduct of unauthorised removal of information from the workplace. 62 Mr Richardson also said in oral evidence that the meeting was about the email being sent to a private email and it was concluded that was serious misconduct and from that it was decided to terminate Ms Douglas.63

[78] I asked Ms Douglas what work related documents she sent to her personal email account, and she responded the email she sent to Mr Richardson and Ms Robertson about why she could not do the audit for the PMC (attachment GJD 4) and a string of emails concerning the processing of job seekers (attachment GJD 9).

[79] Mr Pascoe asked Ms Douglas if she thought sending the emails to her personal email account was a breach of her employment conditions. Ms Douglas answered that yes it was a breach, however she needed the proof of the emails as her job was in jeopardy and they would have been deleted. 64

31 March 2017 Dismissal

[80] On 31 March 2017 Ms Douglas submitted as part of a discussion with Mr Richardson and Mr Woodman at about 7am 65 that Mr Richardson handed her a written letter advising her that her employment was terminated effective immediately, based on recent correspondence and consultation with Ms Douglas. The letter did not state a reason for the dismissal. Ms Douglas said neither Mr Richardson nor Mr Woodman explained the reasons for her termination and claimed they said they were told not to answer, and she was told she would receive two weeks’ pay, not to come to work and to leave the premises.

[81] Ms Douglas said she was shocked and upset, and queried the job seeker updates because she was concerned that she would be committing fraud if “we” misled the job seekers to get extra funding. 66

[82] Ms Douglas submitted that Mr Richardson and Mr Woodman stated that they had been advised that they were not authorised to answer any of Ms Douglas’ questions regarding her dismissal. As there were no reasons stated, Ms Douglas submitted that she was unable to respond to her dismissal and was not afforded the opportunity to have a support person present when she was dismissed. 67

[83] Mr Woodman said that he and Mr Richardson met with Ms Douglas on the Friday morning at 7am. He said Ms Douglas was requested to accompany them to Mr Richardson’s office where she was advised that her position with Bynoe was to be terminated immediately and that she would be paid two weeks’ pay in lieu of notice. Mr Woodman said that Ms Douglas protested the decision, however as PMC had not yet been advised on the Information and Privacy breach it was decided that no further information could be provided to Ms Douglas at that time. Mr Woodman said that further information would be provided to Ms Douglas soon. 68

[84] Mr Woodman said that on Friday 31 March he authored and sent an email and attached letter on Bynoe letterhead to Ms Douglas’ email address. Mr Woodman said he sent the email and attached document at 14:50 hours. The letter stated that Bynoe believed Ms Douglas had copied confidential information concerning participants, Bynoe and the CDP program in general to an unauthorised email address. The letter states this is a serious breach of the Privacy and Confidentiality Policy referring to clause 17 of Ms Douglas’ employment contract, or the HR Policies and Procedures Manual.

[85] The letter goes on to state that Bynoe believed that the forwarding of the emails to an unauthorised email address may be a breach of requirements of Division 3 [confidentiality] of part 5, under the Social Security (administration) Act 1999 (cth).

[86] Mr Pascoe gave evidence that in the time Ms Douglas was employed, she had never approached, reported or made a complaint to him that she was being directed to commit fraud. 69 He said he was unaware of the allegation contained in the email of 29 March 2017 sent by Ms Douglas to Mr Richardson.70

[87] Mr Pascoe said that upon commencement of employment all staff including Ms Douglas are advised and taken though the confidentiality clauses within their employment contracts. 71 Clause 17 of Ms Douglas’ employment contract read as follows:

“17. Confidentiality

With employment, you will possess confidential information with respect to the operations of the business, the activities of clients, the activities of the Company and other employees of the business. You will also acquire independently owned confidential information through maintaining client records and systems of the business.

You agree that all Confidential Information coming to your notice concerning the business or affairs of the business, its clients and those with whom the business has dealing shall be kept absolutely confidential and shall not be disclosed at any time either during or after the employment to any person not an employee of the business without prior written authority of the company.”

[88] It was put to Mr Pascoe that the clause did not say that it was a breach of the policy to send an email to yourself (which I took as a reference to Ms Douglas’ private email account). Mr Pascoe maintained the clause was intended to cover Ms Douglas’ actions but accepted the words in the clause did not say that. 72

[89] Mr Woodman said in his oral evidence that it was his interpretation of clause 17 of Ms Douglas’ employment contract that once a document leaves Bynoe’s control then that would be a breach of confidentiality because Bynoe has not control over the document anymore. Mr Woodman said Bynoe reported the matter to the PMC that day. Mr Woodman said that as part of Bynoe’s agreement with PMC Bynoe had to advise PMC of any serious matter and Bynoe considered it a serious matter. 73

[90] Ms Douglas admitted to Mr Richardson’s evidence that on 2 November 2016 she sent copies of 2 job seeker time sheets to her own personal email account. Ms Douglas said she did this so she could write the names into her diary to discuss with Mr Richardson the following day as these 2 job seekers were not on her participant list. 74

Discovery of further alleged breach of confidentiality after termination

[91] On 14 April 2017 Ms Douglas received her separation certificate from Centrelink. The certificate stated that the reason for her dismissal was “not follow lawful instruction” and “absent from work without valid reason”.

[92] On 14 April 2017 Ms Douglas alleges she was advised that a letter had been emailed to her on her private email account on 31 March 2017, stating that Bynoe had reviewed her work email and alleges that she had forwarded confidential information to an unauthorised email account.

[93] Ms Douglas said in her evidence that on occasion she had forwarded emails from her work email to her own personal email account if she did not have a USB handy and the emails were always in relation to herself, i.e. Tagalaka Application Form or Whitegoods Application Form. Ms Douglas said the only other emails she had forwarded to herself were if she was taking work home (to read on her phone) and write into her diary for the next day, or correspondence between herself and supervisors when she began to think her employment was in jeopardy. 75

[94] Ms Douglas contends she did not breach her contract, as the term of the contract prohibits confidential information from being “disclosed at any time either during or after the employment to any person not an employee of the business”. Ms Douglas contends that she did not breach the provision as the information was forwarded to her private email account and she therefore only disclosed the information to herself.

[95] Mr Woodman said that on 19 April Ms Douglas called Bynoe’s administration office. Ms Douglas accepted that her earlier view that the meeting was on 14 April was mistaken and agree she attended on 19 April.  76 He said Ms Douglas wanted him to change the reason for termination on her separation certificate because it was preventing her from receiving benefits. Mr Woodman claimed he asked what Ms Douglas would like him to change it to. Mr Woodman claimed Ms Douglas said that he should change it to the right reason, but did not elaborate further. He claimed he responded that he would not change it. Mr Woodman claimed Ms Douglas said that we (I took to be a reference to Bynoe) will be sorry when Bynoe is forced to close down for fraud. Mr Woodman claimed he asked Ms Douglas what fraud and she replied not to worry she had all the files and records from her time in the CDP and everything is documented.77

[96] Mr Woodman said he replied to Ms Douglas that it sounds like she might like to include herself in that as he understood that she had removed records from Bynoe’s office without permission of her employer. Mr Woodman said he reminded Ms Douglas that he had sent her an email on the day of her termination indicating that Bynoe was aware that she had removed records without permission and that Bynoe wanted them back. 78

Harsh, Unjust or Unreasonable

(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)

[97] Ms Douglas’ case in short is that the true reason for her dismissal was because she had raised an allegation of fraud in an email to Mr Richardson on 29 March 2017 and was terminated a few days later. This is made clear near the end of her reply statement. 79 It was submitted it is not relevant as to whether Ms Douglas’ allegation is correct, but what is relevant is that she was terminated for voicing her concern about it.80

[98] It was also put that it is not clear that Ms Douglas breached the confidentiality obligations in her contract as she emailed herself because she was concerned that she was about to be dismissed and that is not a valid reason for termination. It seemed to also be suggested earlier in the proceedings that Ms Douglas may have been protected by whistle-blower legislation however this did not seem to be pressed.

[99] It was put that she conceded the issues concerning her failure to attend work on separate occasions in March 2017, and also conceded her failure to follow a lawful direction by not completing the audit for PMC however she was warned for this conduct and it was not repeated.

[100] Mr Richardson said it was not until after her termination that it was discovered that Ms Douglas had sent other material to her private email address on 2 November 2016.

[101] Bynoe submitted that Ms Douglas was an obstructive employee who gradually got worse until the decision was taken to terminate her employment. It was put that Ms Douglas would query matters and this progressed to downright refusal to follow directions. Mr Pascoe said he made the decision to terminate in the meeting with Mr Richardson and Mr Woodman on the afternoon of 30 March because he believed sending the email to her private account was serious misconduct. He said Ms Douglas could have sent the email to anyone. Mr Pascoe said that further breaches were found by the IT person subsequent to the dismissal and Ms Douglas admitted to this herself.

[102] Ms Robinson’s evidence, which is unchallenged is that on three separate occasions, 10 October 2016, 13 November 2016 and 27 November 2016, she sent emails asking all staff when they are setting up the activity diary, only to do one week at a time but despite her directions Ms Douglas continued to set up the activity diary for two weeks which caused her considerable frustration.

[103] The evidence does not support Ms Douglas’ claims that she did not have time to complete the audit report requested by PMC because of under resourcing and her evidence on this point was exaggerated which to some extent undermines her credit on other matters.

[104] Mr Richardson said in his initial verbal conversation with Ms Douglas about the audit information for PMC that she said will not do this and if the PMC wanted this information they should come and do it themselves. I will not repeat all of the evidence as set out above but I accept the evidence of Mr Richardson that Ms Douglas initially refused the request and later agreed to do it but as she conceded never did. Mr Richardson completed the task himself. Ms Douglas ultimately accepted that she had failed to follow a lawful direction.

[105] I am also inclined to accept the view expressed by Mr Pascoe that Ms Douglas had been found out because she was not following up and finding out what happened when participants did not attend. The evidence supports the conclusion that had the evidence concerning the reasons for a participant’s non-attendance been properly recorded at the time as required of Ms Douglas in her role, the collation of the information requested would have been a simple exercise. The evidence suggests that Ms Douglas was not following up the participants she was responsible for to collect the required information concerning whether the reason for their non-attendance was valid or not valid.

[106] Ms Douglas accepted that she had failed to submit leave forms and was on unauthorised leave on both Monday 6 and Tuesday 7 March. Ms Douglas also accepted that she had failed to submit leave forms and was on unauthorised leave on both Thursday 16 and Friday 17 March. The evidence indicates that Bynoe had been flexible in accommodating Ms Douglas’ requests for leave around this time. I have not ignored the circumstances that were in connection with bereavement, however Ms Douglas’ failure to take steps to even alert Bynoe properly about her absences were unacceptable.

[107] I am not persuaded to accept that the reason Ms Douglas gave for refusing the request to drive the 45 minutes from Karumba from Normanton was reasonable. No persuasive medical evidence was provided concerning her claim that sleep apnoea prevented her from performing the duty in accordance with her role. As Mr Woodman explained, visits to Karumba usually occur around mid-day to coincide with participants completing their WFD activity at noon. This evidence generally tends to support claims made by witnesses for Bynoe that Ms Douglas had become increasingly obstructive.

[108] I accept Ms Douglas’ evidence that she was not clear about what precisely was intended to be referred to in the warning letter of 21 March by the warning about failure to follow a lawful instruction of a manager. I also accept Mr Richardson’s evidence that it was intended to be in reference to the PMC request for an audit, the bulk updating of her activity diaries when asked not to, and not following the correct procedures for entering the job plans and time sheet. It would have been preferable that the letter set out precisely which instructions it referred to, however the evidence establishes a warning would have been justified on all counts.

[109] The timing concerning Bynoe’s alleged breach of confidentiality by Ms Douglas crosses over with the timing of the allegation in Ms Douglas’ email to Mr Richardson of 29 June 2017 concerning fraud in the manner that Bynoe dealt with participants in the CDP program. This is because both allegations were connected with the same email.

[110] I accept Mr Richardson’s evidence that he had spoken to Ms Douglas about this a number of times and told her it is not fraud. Mr Richardson said he had confirmation from PMC about this and Ms Douglas just refused to take Mr Richardson’s word for it. Mr Richardson said that PMC had assured Bynoe that they are fulfilling the correct requirements and following the correct procedures. Mr Richardson explained the reason Bynoe wanted to have participants commenced as voluntary if the appointment interview was prior to their receiving DHS payments. I am not satisfied on the evidence that there was any policy on the part of Bynoe of seeking to hide the voluntary status of participation. Ms Douglas accepted that participants were told they were voluntary, however maintained that they did not understand they did not have to participate. I have had regard to all of the evidence on this point and it does not appear Ms Douglas’ allegation has any substance.

[111] I am also inclined to accept the evidence of Mr Richardson, Mr Woodman and Mr Pascoe that Bynoe was very concerned when it became aware Ms Douglas had forwarded the email of 29 March to her private email account because it contained confidential information including details concerning participants in the program.

[112] Bynoe has argued this action justified termination as it was a serious breach of clause 17 in Ms Douglas’ employment contract concerning confidentiality and Division 3 of the Social Security (Administration) Act 1999 (Cth). It also appeared to be a breach of Bynoe’s contract with PMC which was the primary income source for Bynoe. Bynoe pressed that the employment contract was breached because once an employee allows by their actions confidential information to move outside the control of the employer that is a breach. Bynoe made no submission about the alleged breach of the Social Security (Administration) Act 1999 beyond the mere assertion it had been breached which was not very helpful.

[113] I have concluded it is not necessary to reach a concluded view about whether the act of sending the email to her own private account was a breach of clause 17, or of the Social Security (Administration) Act 1999, or of Bynoe’s CDP contract with PMC. Put simply, as a matter of common sense, sending the confidential information to her private email account was inconsistent with the requirement to treat the sensitive material confidentially. Sending confidential information to her private account lacked common sense and undermined Bynoe’s ability to trust her with confidential records.

[114] Neither does the evidence support Ms Douglas’ view that her actions could be in some way justified because of a perceived threat to her employment because she had made allegations of fraud. While I accept that the matter concerning confidentiality was a significant factor in the decision to terminate, it is hard to dismiss the tone of the email entirely. It would be unlawful under a different part of the Act to dismiss an employee because they had made a complaint or inquiry in relation to their employment. A dismissal that is unlawful could not be found to be fair. That is in essence what Ms Douglas asserts.

[115] However I am inclined to the view that if Bynoe’s objection to Ms Douglas’ email of 29 March extended beyond the breach of confidentiality issue, it may well quite legitimately include objection to the overall tone of the email which was consistent with her previous difficult and obstructive conduct, and her tendency to disregard the views of those managing her. It does not follow that Bynoe having regard to these things also requires a finding that the fraud allegation of itself was part of the reason for dismissal, and I accept that it was not.

[116] It is also the case that Ms Douglas was conducting herself in accordance with the findings set out above at a time when PMC was placing pressure on Bynoe concerning it compliance with its contractual obligations. Ms Douglas’ conduct had it been allowed to continue could have had the potential to jeopardised Bynoe’s principle source of income. In the end Bynoe moved to terminate Ms Douglas not because of the fraud allegations but because they did not believe she could be trusted with confidential information, and continued to be obstructive and difficult to manage. This loss of trust in combination with the accumulation of issues prior to the events triggered by the sending of the email gave Bynoe a valid reason for dismissal.

(b) Whether the person was notified of that reason

[117] It is clear from the evidence that at the time Ms Douglas was terminated at around 7am on 31 March 2017 she was not notified that the reason for her dismissal was the unauthorised removal of confidential information. Mr Woodman made clear this was because Bynoe was seeking to get clarification from PMC before it gave Ms Douglas information about that issue and Ms Douglas was terminated prior to Bynoe getting clarification from PMC about the issue. 81 The letter handed to Ms Douglas at the meeting at around 7am did not provide any explanation of the reasons for her termination. The letter sent later that day as an attachment to an email at 2.50pm was sent after she had been terminated.

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

[118] It is apparent given that the decision to terminate had been taken on the afternoon before the meeting on the morning of 7am 31 March, and that a termination letter was prepared in advance of the meeting. The evidence is the meeting proceeded by Ms Douglas being advised that her employment had been terminated with immediate effect, and that Ms Douglas was not given an opportunity to respond to any reasons related to her capacity to conduct.

(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

[119] There was no opportunity for Ms Douglas to request a support person given the decision to dismiss was effectively without notice, and Ms Douglas was advised at the time it was immediate and she would be paid two weeks’ pay in lieu of notice.

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

[120] The extent the dismissal relied on issues that there the subject of warning issued on 21 March Ms Douglas had received as warning. She had not been warned about the confidentiality issue however that matter pertains more to her conduct than her 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

[121] Bynoe employed 72 employees at the time of termination. It is not a small business employer.

(g) The degree to which 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

[122] Mr Woodman the CFO had been acting in the Human Resources role since 2016 when the previous HR Manager left. The reason according to the evidence was that Bynoe was having difficulty attracting a HR Manager to Normanton. Mr Woodman said he had no formal training in human resources and purely relied on his experience over 35 years as a financial and business manager. He said he had worked as an employer in the hospitality industry and been a CEO if a licensed RSL. He said he had been involved in unfair dismissal claims but they had never advanced past mediation. 82

(h) Any other matters that the FWC considers relevant

[123] Ms Douglas’ current length of service with Bynoe at the time of termination was not long at just over 2 and a half years.

Conclusion on Harsh Unjust or Unreasonable

[124] The Commission is required to take into account each of the criteria in s.387. The reason for the termination need not be that which was given by the employer, it can be any reason underpinned by the evidence. I have taken into account the facts which came to light after the dismissal that Ms Douglas had sent confidential information to her personal email account on previous occasions.

[125] I have weighed the elements of s.387 and am cognisant of the fact that the dismissal was procedurally flawed. There is no doubt that had someone who was a trained human resource expert been conducting the process it would have been handled differently. However ultimately I am not satisfied that procedural failings are sufficient to tip the balance in Ms Douglas’ favour having found Bynoe had a valid reason for termination. On that basis I have found the dismissal was not harsh, unjust or unreasonable and therefore the application is dismissed.

COMMISSIONER

Appearances:

Ms B. Djordjevic of Aboriginal & Torres Strait Islander Legal Service (QLD) Ltd for the Applicant

Mr F. Pascoe for the Respondent

Hearing details:

2017,

Brisbane:

23 August

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 5.

 6   Exhibit 6.

 7   Exhibit 5 para 13 – 15.

 8   Exhibit 5 para 22 – 28.

 9   Exhibit 1 para 6.

 10   Exhibit 1 para 8.

 11   Exhibit 6 para 10.

 12   Exhibit 6 para 12.

 13   Exhibit 6 para 14.

 14   Transcript PN 597.

 15   Exhibit 1 para 16.

 16   Exhibit 3 attachments 1 and 2.

 17   Exhibit 4 para 1.

 18   Transcript PN 429.

 19   Exhibit 4 para attachment 1 and 2.

 20   Exhibit 1 para 17.

 21   Exhibit 1 para 18.

 22   Exhibit 1 para 19.

 23   Exhibit 1 para 21 attachment GJD4.

 24   Exhibit 4 para 2 – 5.

 25   Exhibit 4 para 6.

 26   Transcript PN 91.

 27   Transcript PN 94.

 28   Transcript PN 102.

 29   Transcript PN 131-132.

 30   Transcript PN 136.

 31   Exhibit 5 para 32 -37.

 32   Exhibit 1 para 23.

 33   Exhibit 1 para 25.

 34   Exhibit 1 para 27.

 35   Exhibit 1 para 28.

 36   Exhibit 4 para 10.

 37   Exhibit 5 para 43 – 50.

 38   Exhibit 1 para 30.

 39   Exhibit 4 para 11.

 40   Exhibit 5 para 79.

 41   Exhibit 1 para 33.

 42   Exhibit 1 para 35.

 43   Transcript PN 399-405.

 44   Exhibit 5 para 41.

 45   Exhibit 2 para 19 – 20.

 46   Transcript PN 492 – 501.

 47   Exhibit 5 para 42.

 48   Exhibit 2 para 21 -22.

 49   Exhibit 1 para 38.

 50   Exhibit 1 para 39.

 51   Exhibit 1 para 42.

 52   Transcript PN 147.

 53   Exhibit 2 para 26.

 54   Exhibit 1 para 46.

 55   Exhibit 2 para 37 – 40.

 56   Exhibit 2 para 41 – 43.

 57   Exhibit 4 para 12.

 58   Transcript PN 379.

 59   Transcript PN 380-383.

 60   Exhibit 2 para 5.

 61   Exhibit 5 para 53.

 62   Exhibit 5 para 54.

 63   Transcript PN 387.

 64   Transcript PN 202.

 65   Transcript PN 189.

 66   Exhibit 1 para 51.

 67   Exhibit 1 para 53.

 68   Exhibi5 para 55 – 58.

 69   Exhibit 3 para 5.

 70   Transcript PN 291-292.

 71 Ex 3 para 7.

 72   Transcript PN 305-311.

 73   Transcript PN 563.

 74   Exhibit 2 para 48 and 49.

 75   Exhibit 1 para 58-59.

 76   Exhibit 2 para 30.

 77   Exhibit 5 para 65-70.

 78   Exhibit 5 para 70 -71.

 79   Exhibit 2 para 51.

 80   Transcript PN 609.

 81   Transcript PN 521 – 523.

 82   Transcript PN 572.

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