Hamit Ayberk v Roche Diagnostics Australia Pty Ltd

[2015] FWC 6414

[2015] FWC 6414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hamit Ayberk
v
Roche Diagnostics Australia Pty Ltd
(U2015/3804)

COMMISSIONER JOHNS MELBOURNE, 14 SEPTEMBER 2015

Application for Relief of Unfair Dismissal – genuine redundancy – identification of job made redundant – consultation – declined redeployment.

Introduction

[1] This decision is about whether the job performed by Hamit Ayberk (Applicant) was genuinely made redundant. Roche Diagnostics Australia Pty Ltd (Roche /Employer/Respondent) says it was a genuine redundancy. Mr Ayberk says it was not and consequently, on 6 March 2015, he made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy for unfair dismissal.
[2] At the hearing conducted on 8 July 2015, the Applicant was represented by Mr Dirks from Just Relations Consultants and Roche was represented by Mr Murphy of Australian Business Lawyers. Permission was granted to each party to be represented because the Commission as presently constituted was satisfied that the matter was invested with sufficient complexity such that the matter would be proceed more efficiently if the parties were represented.

Background

[3] The parties filed in the Commission an Agreed Statement of Facts. The following matters were either contained in the Agreed Statement of Facts or otherwise not contested:

a) On or around 17 July 2000, the Applicant commenced employment with Ventana Medical Systems (Ventana).
b) The Applicant holds tertiary qualifications in science (Bachelor of Science with Honours).
c) In 2008, the Respondent purchased Ventana.
d) On 1 July 2008, the Applicant’s employment transferred from Ventana to the Respondent.
e) The Applicant’s role upon transfer was Applications Manager Asia Pacific, Tissue Diagnostics. The position was set out in his written contract of employment dated 16 June 2008. At that time he was based in Melbourne (Melbourne Role).
f) In 2010, the Applicant was offered an international assignment to Shanghai, People’s Republic of China (China Role). The assignment was subject to the terms of a letter dated 22 April 2010 and the Respondent’s Long Term International Assignments Policy. The assignment commenced on 1 May 2010 and the duration of the assignment was to be “approximately two years”.
g) By letter dated 19 December 2011, the Respondent extended the duration of the international assignment by another two years, fixing a contract end date of 30 April 2014.
h) Around November 2013, discussions commenced about moving the China Role to Singapore (Singapore Role). 1 The Applicant indicated he was not interested in moving to Singapore.2
i) Chinese government rules and requirements meant that the Applicant could not stay in China for more than five years 3 (therefore, noting that he had been there since about April 2010, he could not stay there beyond April 2015).
j) The international assignment was further extended by a year by letter dated 22 November 2013, with an end date of 30 April 2015.
k) In or around October 2014, the Applicant and the Respondent entered into discussions about the end date of the international assignment and the Applicant’s future employment with the Respondent.
l) A permanent role as Regional Applications Manager, APAC in Roche’s Singapore offices was offered to the Applicant at this time (i.e. the Singapore Role was again offered to the Applicant).
m) By email on 26 October 2014, the Applicant declined the Singapore Role citing schooling and family reasons as the reason for refusal. The Applicant indicated in this correspondence that he intended to depart China to return to Australia in February 2015.
n) On 29 October 2014, Ms Ong acknowledged receipt of the Applicant’s email and confirmed that Mr Mike Hiser (Human Resources Manager for the Respondent), would prepare a fixed-term contract ending October 2015 for the Applicant on the same base salary package as he enjoyed while on assignment (i.e. less those specific benefits received as a direct result of being on assignment - rent, educational expenses, etc).
o) The Applicant’s base salary at the relevant time was $106,636. The Applicant participated in the Respondent’s annual bonus scheme with an annual target bonus of 17% of his base salary.
p) On 14 January 2015, the Applicant was provided with the Respondent’s offer of appointment to a role, as ‘Regional Applications Specialist’, in Australia (2015 Australian Role). The proposed term of this contract was from 1 March 2015 to 31 October 2015. This contract, if accepted, was intended to replace the existing contracts between the Applicant and the Respondent.
q) On 15 January 2015, the Applicant sent Mr Hiser an email outlining his concerns about the job title of ‘Regional Applications Specialist’.
r) On 16 February 2015, Mr Hiser responded to the Applicant, indicating that the title had been chosen to allow the Applicant to be “benchmarked at an appropriate skill base that is aligned locally” and that the offer for the 2015 Australian Role would remain as Regional Applications Specialist.
s) On 20 January 2015, a teleconference was held to discuss the Applicant’s relocation back to Australia and the offer of 14 January 2015.
t) On 11 February 2015, the Applicant responded in writing rejecting the offer of 14 January 2015.
u) On 18 February 2015, Mr Hiser wrote to the Applicant confirming receipt of the Applicant’s letter of 11 February 2015 declining the fixed term contract. Mr Hiser confirmed that the Applicant would be retrenched effective 28 February 2015 since no suitable positions into which the Applicant could be redeployed were available.
v) On termination, the Applicant received a termination payment from the Respondent in the sum of $50,512.41 - which included his notice (5 weeks), severance pay (12 weeks) and his accrued but untaken annual leave and long service leave.

[1] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or compensated in the amount of $60,821 (being 26 week’s pay).

Protection from Unfair Dismissal

[2] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[3] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal.
[4] There is no dispute, and the Commission as presently constituted is satisfied, the Applicant has completed the minimum employment period, and is covered by a modern award, namely the Professional Employee Award 2010. 4 In any case the Applicant earned less than the high income threshold. Consequently, the Commission as presently constituted is satisfied the Applicant was protected from unfair dismissal.
[5] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[6] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[7] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act.
[8] In the present matter the Respondent conceded 5, and the Commission as presently constituted finds, that the Applicant was terminated on the employer’s initiative.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[9] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). In the present matter the Respondent is not a small business 6 and there is no need to further consider the application of the Code.

Was the dismissal a genuine redundancy?

[10] The Respondent submits the Commission as presently constituted should dismiss the application because the dismissal was a case of genuine redundancy. Section 389 of the Act defines the meaning of genuine redundancy:

“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”

Was the Applicant’s job no longer required to be performed?

[11] Largely consistent with the Agreed Statement of Facts, in an exchange between the Applicant and the Commission as presently constituted, the Applicant agreed 7 that the following occurred in relation to his employment with the Respondent:

a) In 2010, a decision was made to move his position to China (the Applicant says this was to be only temporary) (China Role).
b) The Respondent moved to the position to China.
c) The Applicant commenced the China Role on 1 May 2010.
d) The China Role was meant to be for two years, but it was extended a couple of times.
e) The Respondent decided they wanted the China Role moved to Singapore for the Singapore Role.
f) The Respondent offered the Applicant the Singapore Role (although not on assignment, but as a local Singapore role)
g) The Applicant declined the Singapore Role.
h) The Respondent offered the Applicant a new role in Australia (although the Applicant says it was the same as the China Role, but now in Australia until October 2015).
i) The Applicant declined the 2015 Australian Role because it had the word “Specialist” in the name rather than “Manager”.

[1] To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied that a particular role being performed by the Applicant was no longer required to be performed by anyone because of operational changes to the Respondent. Noting the Applicant’s employment history with the Respondent, it was necessary for the Respondent to identify what role it said had been made redundant in order to determine whether there was a genuine redundancy.
[2] In an exchange between the Commission as presently constituted and Mr Murphy, the Respondent was required to clearly identify the job that it no longer required the Applicant to perform. Mr Murphy identified that job to be the China Role. 8
[3] However, the exact relevant role (for the purpose of assessing whether there was a genuine redundancy) was a contested issue.
[4] There is no doubt, and the Commission as presently constituted accepts, that a decision was made to end the China Role and create the Singapore Role. This decision was made in around November 2013 and confirmed in October 2014. In this sense, the China Role was no longer required to be performed by anyone.
[5] The FW Act does not define the term “operational requirements”. It is a broad term that permits consideration of many matters including;

a) The past and present performance of the business;
b) the state of the market in which the business operates;
c) steps may be taken to improve efficiency, for example by ranging later to be used more productively; and
d) the application of good management to the business.  9

[1] The onus is on the Respondent to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 10
[2] The closure of a site is an example of a change caused by operational requirements. In the present matter that is what occurred. The Applicant’s own evidence was that “Chinese government rules and requirements meant that [he] could not stay in China for more than five years.” 11 A decision was therefore made, for operational reasons, to move the China Role to Singapore.
[3] The Commission as presently constituted is satisfied that the decision to end the China Role and create the Singapore Role was a result of operational requirements.
[4] However, the Applicant submits that the relevant role (for the purpose of assessing genuine redundancy) was that of Applications Manager Asia Pacific, Tissue Diagnostics. The Applicant says that role was a role in Australia (that had been on temporary assignment to China). He says he had a right of return to Australia when the China Role ended. In essence, the Applicant’s complaint is that, at the conclusion of the China Role, the position should have been returned to Australia rather than moved to Singapore.
[5] However, by the time the China role ended, the position had not been located in Australia for nearly five years. The Applicant gave evidence to this effect:

“[He] was based in Melbourne for the first 10 years of employment. [He] would spend about eight months of the year in Melbourne and about four months travelling to various Asia Pacific countries. For the last five years [he] was based in Shanghai and would spend a similar approximately eight months at base and four months travelling.” 12

“For most of [his] time, Australia was the number one market, then Korea then other countries.” 13

“As a result of work out [of] China, China eventually became the largest market, then Australia, then Korea and other countries.” 14

[6] Quite clearly, the nature of the Respondent’s business in the Asia-Pacific region (which continued to include Australia) changed during the period of the China Role. This was no doubt very much due to the industrious efforts of the Applicant.
[7] Mr Hiser gave evidence about the initial decision to create the China Role:

“Following the purchase of Ventana, the focus of Roche’s business became the Asia Pacific region, due to the substantial growth occurring in that area.” 15

“As this focus of Roche’s presence in the Asia Pacific region grew, Roche formed the view that it was infeasible to continue to run the position of Applications Manager APAC out of Australia. The client base that this position serviced with based across the Asia Pacific, with the closest of those countries being approximately eight hours away. The nature and duties of this role was such that it required a presence in the Asia Pacific region.” 16

“Due to the level of interaction with customers in the Asia Pacific region, it was impractical to conduct the duties of Applications Manager APAC from Australia. In order for the duties to be carried out in a commercially efficient and effective manner, the individual occupying this role had to be based in the Asia Pacific region so as to facilitate the easy client access and contact.” 17

“Accordingly, a decision was made to move this role closer to the client base that it serviced. At that time, China and India was the busiest of the Asia Pacific countries serviced by Roche and it was decided that the Applications Manager APAC position would be most suitably based out of our Shanghai office.” 18

[8] Mr Hiser’s references in his evidence to “Asia-Pacific” might be considered a little imprecise because he was not suggesting that Australia was not a part of the Asia-Pacific region. Rather, his evidence was about the growing customer base in the Asia-Pacific region outside Australia. The Applicant took some issue with the characterisation of the relative importance of India, 19 but otherwise there was no real contest about the growing importance of countries in the Asia-Pacific region outside Australia.
[9] Mr Hiser also gave evidence that at the time the China Role was created he had a discussion with the Applicant and, to the best of his recollection, he said words to the effect that “on your return to Australia … there is no guarantee that there will a suitable position available for you within Diagnostics Australia” i.e. Roche.  20
[10] In cross-examination it was put to Mr Hiser that this conversation never happened. However, Mr Hiser maintained that it did. 21 Mr Hiser is a Human Resources Manager and has been employed by Roche since 1999. Quite evidently from the evidence in this matter, Mr Hiser has a knowledge of and experience in international assignments undertaken by Roche. There was nothing in his demeanour that gave rise to a doubt about his truthfulness or credibility. The Commission as presently constituted is satisfied that it is more likely than not that Mr Hiser explained to the Applicant the fact that there was no guarantee that there would be a suitable position for the Applicant at the end of the China Role.
[11] The evidence of Mr Hiser in this regard was consistent with the documents in existence or created at the time that the China Role commenced.
[12] Exhibit MH-03 is the international assignment letter provided to the Applicant in April 2010. Relevantly, it provides as follows:

● “For further information and for matters not specifically covered by this letter of conditions, please refer to the Long Term International Assignments Policy brochure … which is an integral part of the terms and conditions.”
● “You will commence your activity as Regional Applications Manager with Roche Dia China…”
● “The purpose of this assignment, your place of contractual employment remains Australia.”
● “The conditions of the employment contract with Roche Diagnostics Australia Pty Ltd remain in force as far as no other terms have been fixed in this letter of conditions.”

[13] Exhibit MH-02 is the Long Term Assignment Policy in place in 2010. Relevantly, it provides as follows:

● “In order to set up the assignment, some contractual requirements for agreements need to be arranged.”
● “Where possible, the assignee will remain on the home country employment contract or agreement.”
● “Once an assignment has been approved before the anticipated assignment start date, a Letter of Conditions setting out the specific terms and conditions of the assignment will be prepared by the Global Mobility Manager for the assignee. The legal effect of this letter is to alter some of the terms of the assignees main employment contract or agreement for the duration of the assignment.”
● “Upon successful completion of international assignment if no further assignment has been agreed upon, the assignee and their family will be repatriated back to the home country. The details of the assignee’s future position should be defined several months prior to the actual repatriation.”
● “If no position is available in the home country at the time of repatriation, the assignee and family will still be repatriated to the home country and the situation will be reviewed on a case-by-case basis.”

[14] It is clear that nothing in the international assignment letter or the Long Term Assignment Policy guaranteed the Applicant a right of return to Australia when the China Role ended. The Applicant gave evidence to the Commission that he read the international assignment letter 22 and that he probably read the Long Term Assignment Policy.23 Further, he gave evidence that he understood that the international assignment letter varied his contract of employment24 and that one of the significant changes that occurred in 2010 was that the position was now in China.25
[15] Having regard to the evidence of Mr Hiser, the international assignment letter and the terms of the Long Term Assignment Policy, the Commission as presently constituted is satisfied that a definite decision was made to end the Melbourne Role in 2010. In effect, the Melbourne Role was made redundant at that time.

[16] It is also clear from the evidence that, while this decision was not expressly explained to the Applicant, 26 he could not have reasonably held the view that he had a guarantee to return to Australia either into the Melbourne Role or any other position.
[17] At the time he moved to China his contract of employment (still enforceable in Australia) was varied such that his position was now located in China. It is that position, the China Role, which the Respondent decided to make redundant, by reason of its operational requirements. The decision by the Respondent to move the China Role to Singapore was well within its prerogative to make and was a rational decision.
[18] The Commission as presently constituted is satisfied the Respondent no longer required the Applicant’s job (being the China Role) to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

Did the Respondent comply with any consultation obligations?

[19] The Respondent concedes that, at the time of the dismissal, the Professional Employees Award 2010 applied to the employment relationship. 27
[20] The consultation provisions in the Professional Employees Award 2010 appear at clause 9. It is important to set out the clause:

Section 1.01 “9. Consultation
9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; … transfer of employees to other … locations; …

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[21] At this point it is necessary to repeat the chronology of events:

a) Around November 2013 discussions commenced about moving the China Role to Singapore. 28
b) The Applicant indicated he was not interested in moving to Singapore. 29
c) In or around October 2014, there were further discussions about the end date of China Role and the Applicant’s future employment with the Respondent.
d) The Singapore Role was again offered to the Applicant.
e) By email on 26 October 2014, the Applicant declined the Singapore Role.
f) On 29 October 2014, Roche acknowledged receipt of the Applicant’s email.
g) On 14 January 2015, the Applicant was provided with an offer of appointment to a role, as ‘Regional Applications Specialist’, the 2015 Australian Role. The proposed term of this contract was from 1 March 2015 to 31 October 2015.
h) On 15 January 2015, the Applicant sent Mr Hiser an email outlining his concerns about the job title of ‘Regional Applications Specialist’.
i) On 16 February 2015, Mr Hiser responded to the Applicant, indicating the offer for the 2015 Australian Role would remain as Regional Applications Specialist.
j) On 20 January 2015, a teleconference was held to discuss the Applicant’s relocation back to Australia and the offer of 14 January 2015. It was made clear to the Applicant that, if he declined the Regional Applications Specialist he would be made redundant. 30
k) On 11 February 2015, the Applicant responded in writing rejecting the offer of 14 January 2015.
l) On 18 February 2015, Mr Hiser wrote to the Applicant confirming receipt of the Applicant’s letter of 11 February 2015 declining the fixed term contract. Mr Hiser confirmed that the Applicant would be retrenched effective 28 February 2015 since no suitable positions into which the Applicant could be redeployed, were available.

[1] What is apparent from the chronology is that the Respondent made it known to the Applicant, as far back as November 2013, that it intended to move the China Role to Singapore. Further, that on two occasions the Respondent offered the Singapore Role to the Applicant.
[2] Consequently, the Commission as presently constituted is satisfied the Respondent complied with the requirement to consult with the Applicant about the redundancy prior to dismissing him.
[3] I will now consider if redeployment was appropriate in all the circumstances of this case.

Was redeployment reasonable in all the circumstances?

[4] Section 389(2) provides that even if the Commission is satisfied the role of performed by the Applicant was no longer required to be performed by anyone and that all consultation obligations in a modern award or enterprise agreement that applied to the Applicant’s employment have been complied with, it must consider if redeployment was appropriate in all the circumstances.
[5] It would have been reasonable to redeploy the Applicant into the Singapore Role and the Respondent was prepared to do so. As has been observed above on two occasions, the Respondent offered the Singapore Role to the Applicant. The Applicant declined those offers for legitimate reasons and no criticism can be made of him in this regard.
[6] In the face of the Applicant declining the Singapore Role the Respondent then offered him the position of ‘Regional Applications Specialist’. This was not an existing position into which the Applicant could have been redeployed but, rather it was a new position created by the Respondent aimed at facilitating the Applicant’s repatriation to Australia.
[7] There is no doubt that the 2015 Australian Role was exactly the same position as the Applicant had been performing in China. 31 Further, subject to some necessary adjustments by reason of the return to Australia, there was to be no diminution in the Applicant’s remuneration. The only change was to the title of the position; the word “Manager” was to be replaced by the word “Specialist”.
[8] The evidence of Mr Hiser was that, because the Applicant did not want to go to Singapore, Roche created this role in Australia in order to assist the Applicant while they tried to find him another position in Australia. 32 It was never the intention to return the China Role to Australia. The intention was to delay the commencement of the Singapore Role and allow the Applicant to perform it out of Australia while attempts were made to find him another role before October 2015. The Commission as presently constituted accepts that the 2015 Australian Role was created not because the Respondent wanted that role performed in Australia, but solely to assist the Applicant’s return to Australia.
[9] The Applicant submits redeployment (to Australia) in role of “Regional Applications Manager” was appropriate in the circumstances because the position that he had been performing in China for the previous nearly 5 years could just as well have been performed in Australia rather than Singapore. However, that operational decision was not used to make. It was an entirely reasonable and rational decision for the Respondent to move the “Regional Applications Manager” to Singapore. The Respondent’s decision to allow the Applicant to perform “Regional Applications Manager” role (albeit entitled ‘Regional Applications Specialist’) in Australia on an interim basis was generous and decent. It was not for the benefit of the Respondent, but rather an attempt to mitigate the adverse effects of the redundancy.
[10] In the circumstances, the Commission is satisfied that:

a) it would have been reasonable for the Applicant to be redeployed within the Respondent’s enterprise as the ‘Regional Applications Specialist’; and
b) the Respondent was prepared to redeploy the Applicant into that role.

[1] The only reason why that redeployment did not occur is because the Applicant refused to take up the position because of the change in title. The Commission as presently constituted is satisfied that that was an unreasonable refusal by the Applicant in circumstances where the Respondent was trying to facilitate his repatriation to Australia.
[2] Consequently, the Commission as presently constituted finds that the dismissal was a case of genuine redundancy within the meaning of s.389 of the Act.
[3] An order will be issued with this decision.

COMMISSIONER

Appearances:

G Dircks for the Applicant.

J Murphy for the Respondent.

Hearing Details:

Sydney.

2015:

8 July.

 1   Exhibit “R3” (Statement by Mike Hiser), para 3.10.

 2   Exhibit “R3” (Statement by Mike Hiser), para 3.11.

 3   Exhibit “A3” (Statement by Hamit Ayberk), para 37.

 4   Transcript PN14.

 5   Transcript PN8.

 6   Conceded by the Respondent see Transcript PN10.

 7   Transcript PN198 – PN214.

 8   Transcript PN967.

 9   Nettlefold v Kym Smoker Pty Ltd (1996) IR 370, 373.

 10   Kieslbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 at [34].

 11   Exhibit “A3” (Statement by Hamit Ayberk), para 37.

 12   Exhibit "A4" (Further statement of Hamit Ayberk), para 20.

 13   Exhibit "A4" (Further statement of Hamit Ayberk), para 22.

 14   Exhibit "A4" (Further statement of Hamit Ayberk), para 23.

 15   Exhibit “R3” (Statement by Mike Hiser), para 2.4.

 16   Exhibit “R3” (Statement by Mike Hiser), para 2.5.

 17   Exhibit “R3” (Statement by Mike Hiser), para 2.6.

 18   Exhibit “R3” (Statement by Mike Hiser), para 2.7.

 19   Exhibit "A4" (Further statement of Hamit Ayberk), para 37.

 20   Exhibit “R3” (Statement by Mike Hiser), para 3.3.

 21   Transcript PN576-580.

 22   Transcript PN360.

 23   Transcript PN364.

 24   Transcript PN371.

 25   Transcript PN372-373.

 26   Transcript PN571.

 27   Transcript PN14.

 28   Exhibit “R3” (Statement by Mike Hiser), para 3.10.

 29   Exhibit “R3” (Statement by Mike Hiser), para 3.11.

 30   Exhibit “R3” (Statement by Mike Hiser), para 6.8.

 31   Transcript PN474.

 32   Transcript PN512.

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