Health Services Union-Victoria No. 1 Branch v Sel (Selcuk) Sanli

[2017] FWC 6156

[2017] FWC 6156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Health Services Union-Victoria No. 1 Branch
v
Sel (Selcuk) Sanli
(U2017/5798)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 NOVEMBER 2017

Application for an unfair dismissal remedy – costs application.

[1] The Health Services Union made an application for an order that Mr Sel Sanli pay the costs it incurred in defending his unfair dismissal claim.

Background to the costs application

[2] Mr Sel Sanli lodged an unfair dismissal application alleging the HSU unfairly dismissed him. The HSU objected to the application on the grounds that Mr Sanli resigned his employment and hence was not protected from unfair dismissal.

[3] Prior to the conciliation of the application, the HSU filed documents that it wished to refer to at the conciliation. These documents referred to the HSU’s allegation that Mr Sanli had accessed inappropriate material on the internet whilst as work.

[4] Directions were issued for the HSU to file material in support of its objection to the application by 21 August 2017 and Mr Sanli was to reply to the objection and to file material in support of his claim by 28August 2017. On 22 August 2017, the HSU filed an outline of submission and one witness statement. On 24 August 2017, the HSU filed a report prepared by Deloitte Risk Advisory setting out an analysis of Mr Sanli’s work laptop. On 28 August 2017, Mr Sanli’s representative advised that they had only just received the additional material filed by the HSU. On 31 August 2017, Mr Sanli filed a notice of discontinuance.

Permission to Appear

[5] The HSU and Mr Sanli sought permission to be represented. The HSU did not attend the first day of hearing. Its legal representative appeared to be unaware that he required permission to appear before the Commission. Mr Sanli’s representative did at least address the provisions of the Act. Neither party objected to the other being represented so I reluctantly granted permission to both.

Objection to the admission of evidence called by Mr Sanli

[6] Mr Sanli filed two witness statements in opposition to the costs application, one from him and the other from Mr Hamdi Koyu who was dismissed by the HSU on the same day that Mr Sanli resigned. The HSU objected to this evidence being admitted. The evidence went to the events that lead to Mr Sanli’s resignation, and whilst some of the evidence was not relevant, I accepted that Mr Sanli was entitled to put forward evidence to support his claim that he had not acted unreasonably when he made his application and when he discontinued his application. I directed the parties to confer in relation to the material, and whilst this did occur, there were further objections taken at the hearing to some of the evidence.

Events from 20 May 2017 to 22 May 2017

[7] It was not disputed that Mr Sanli was employed as an organiser by the HSU. His responsibilities included recruitment of members and responding to members’ workplace issues.

[8] Mr Sanli was a delegate from the Federal Electoral Assembly for the seat of Gellibrand to the ALP State Conference held on the weekend of 20 May 2017. 1 At that conference Mr David Asmar, the husband of the HSU branch secretary Ms Diana Asmar, was a candidate for election.2 At the conference, Mr Sanli advised Mr Asmar that he would not be voting for him and Mr Koyu did not vote for him.3 Mr Sanli met with Mr Asmar at the conference and advised him of his reasons for not voting for him. At the conclusion of that conversation, they shook hands.4 However, it was his unchallenged evidence that Mr David Asmar told him at the conference that if he did not resign, his employment would be terminated.5

[9] On the Sunday night of the conference, Ms Asmar contacted Ms Hiba Salem who was Mr Sanli and Mr Koyu’s immediate supervisor and directed her to dismiss Mr Koyu and to speak to Mr Sanli about his actions on the weekend. 6

[10] Ms Salem gave evidence that the decision to terminate Mr Koyu was because Mr Koyu was “not working out.” 7

[11] Ms Salem said that Ms Asmar also wanted her to talk to Mr Sanli about his failure to be at the conference when she was giving speeches and for being uncontactable. 8 It was her evidence that Ms Asmar did not direct her to dismiss Mr Sanli.

[12] On the Sunday evening, Mr Sanli attempted to log onto his work emails and was not able to log in. 9 When he checked again on Monday morning he was still locked out so he went into the offices of the HSU. As he was going to work, he received a phone call from Ms Salem.10 It was his evidence that she called him and asked him to come into the office.11 When asked in cross examination why she wished to see him Ms Salem denied asking Mr Sanli to come into the office. She said she rang him and he said he was on Kingsway so she took it that he was coming into the office.12

[13] When he arrived at the office, Mr Sanli saw Mr Dean Sherriff, an industrial officer, and waved at him to open the door. Mr Sherriff initially declined to open the door but then opened the door for Mr Sanli. Mr Sherriff did not speak to Mr Sanli. 13 It is not disputed that Mr Sherriff did this because Mr Sanli had not voted for Mr Asmar at the ALP conference in circumstances where he thought Mr Sanli had advised that he was going to vote for him.14 Mr Sherriff was clearly upset about Ms Sanli’s conduct describing it as being ‘lower than a snake’s belly.”15

[14] Mr Koyu attended work on 22 May 2017 and attempted to log into his computer but was not able to. He checked with another colleague to see if the problem was wider than him and it was not. 16

[15] Ms Salem called Mr Koyu into a meeting and told him that he was dismissed with immediate effect. Mr Koyu was still within his qualifying period at the time of his dismissal. 17 Mr Koyu said that Ms Salem said words to the effect that Ms Salem said she was going to have to play bad cop and dismiss him. Mr Koyu said Ms Salem said that “obviously a number of events have occurred over the weekend.”18 He said he said that he understood and that unfortunately these things happen in politics.19 Mr Koyu said Ms Salem spoke about his work performance in a positive way.20 Ms Salem denied making these statements.21 She did say that Mr Koyu made a comment about “politics is politics.”22 She said she did not give a reason for the dismissal but agreed to be a referee for Mr Koyu. Ms Salem denied knowing what had happened at the conference.23

[16] As he was going to retrieve his personal possessions from the car, Mr Koyu exchanged words with Mr Sanli and told him his employment had been terminated immediately. 24 Mr Sanli said that Mr Koyu had told him that he was dismissed because of what happened on the weekend and that he had been locked out of his computer.25

[17] It was Mr Koyu’s evidence there were no issues about his work performance. Mr Koyu gave evidence said he had initially sought Mr Asmar and Mr Sanli’s assistance in obtaining employment. In about mid March 2017, as a result of providing his resume to Mr Asmar, a meeting was arranged with Ms Asmar and he was offered a position in the call centre. After some negotiations about wages, he was employed. 26

[18] He said that after about 4-5 weeks he was required to attend a Branch Committee of Management meeting with Ms Asmar. It was his unchallenged evidence that his position was unanimously endorsed and he was advised that he would receive a new ongoing contract with the HSU. 27

[19] It was Mr Koyu’s evidence that he completed his right of entry examination and had started his training to transition from the call centre to becoming an industrial officer. 28

[20] While Mr Sanli was waiting to meet with Ms Salem he saw the IT manager, Mr Imad Elzind and he told him he was having trouble accessing his emails. 29 He said that the IT manager walked passed him shaking his head, showing four fingers and saying “four years working here.”30

[21] Mr Elzind said he can lock people out of the computer system and that no other person can do this. He denied locking Mr Sanli out. He said he received no instruction from any person at the HSU to lock Mr Sanli out. Mr Elzind said he saw Mr Sanli on the 22 May 2017 and Mr Sanli told him he had a problem. He said he told Mr Sanli to give him five minutes and denied saying “four years working here. 31

[22] Mr Sanli met with Ms Salem. It was his evidence that he said he was expecting to see Ms Asmar and Ms Salem said that she was around if he wanted to speak to her. He replied “I assume she is sending the message through you and what was it.” He said Ms Salem said “so are you going to hand in your resignation?” 32 Ms Salem accepted that Mr Sanli said he thought he would be seeing Ms Asmar that she said she could see if she was available.33 She denied asking Mr Sanli if he was going to resign.34 It was her evidence that it was Mr Sanli who said he was going to resign without any prompting from her.

[23] Mr Sanli said that because of the events of the morning and his conversation with Mr Asmar at the conference, he believed that if he did not resign, his employment would be terminated so he decided to resign his employment. 35 He typed out a resignation letter on his laptop but it could not be printed.36 Ms Salem took a screen shot of the typed letter. He then wrote out his resignation letter by hand.37 He also, in Ms Salem’s presence, changed his message on his mobile phone advising that he no longer worked at the HSU and directed callers to a number and an email address for them to contact the union.38

[24] Mr Sanli said that as he was leaving he saw Ms Rhonda Barclay, the Honorary Branch President and Receptionist, and he said to her “I am leaving” and when she said OK he said “I am leaving for good” and she said I know. 39 Ms Barclay denied that this conversation took place. She said she only found out about Mr Sanli’s resignation later in the week.40

Post resignation events

[25] After leaving, Mr Sanli sent a text message to Ms Salem asking that his payslips and group certificates be sent to his personal email address and he also sent an email resigning his membership of the HSU. 41

[26] On 23 May 2017, he sent an email to Ms Salem asking for his notice period to be paid. 42

[27] One day prior to the conciliation conference, Mr Sanli was provided with incomplete copies of his private phone data. Mr Sanli says he must have backed up his private phone to the HSU’s laptop and as a consequence the information on his phone was left on the HSU’s laptop. Mr Sanli said he only received a complete copy of this material when the Deloitte Risk Advisory Report was provided to his representative. 43 He was able to review the material on Tuesday 29 August 2017 and take advice from his representative and friends and family.44

[28] Mr Sanli said while the material was not pornographic, nor inappropriate, it was private and sensitive. 45 He said that it was obvious to him that the materials “would be used in a public way during any arbitration.46 His representative wrote to the HSU advising of his reasons for discontinuing the application.47 Mr Sanli accepted that “some of the content of [his] private telephone would be considered inappropriate within the workplace environment.” He noted that the information was on his private mobile phone and the majority of the inappropriate content was sent to him by others.

[29] He accepted that he did access some of the sites but denied doing this during working time. 48 He said he did not have fixed working hours and he only accessed the sites when he was not working, i.e., he was on breaks or at home.49 Ms Salem denied that Mr Sanli had irregular working hours and said that his hours were 8.30am to 5pm. However it was her evidence that Mr Sanli was given five weeks annual leave and a monthly ADO because from time to time he worked more than normal office hours.50

[30] Mr Sanli reviewed the data provided and submitted that “half the sites do not have any dates. There are multiple entries at the same time. There is a date that goes back to 2014 and 1970.” He said he purchased his phone in 2015 and he was not born until 1979. 51

[31] The Deloitte Report 52 was tendered and Ms Kylie Rodman, a legal secretary with Holding Redlich, provided a witness statement to which she attached an excel spreadsheet referring to Mr Sanli’s diary which evidenced websites accessed by Mr Sanli during working hours.53

Submissions of the HSU

[32] The HSU sought costs under ss.400A and 611 of the Act. In total, the HSU sought the payment of $19,289.64 being solicitor costs and the costs of junior and senior counsel. In addition the HSU sought costs of $23,098.45 for the costs of the Deloitte Report.

[33] It was submitted that it should have been reasonably apparent to Mr Sanli that his application had no reasonable prospects of success because he resigned twice in writing. 54 It submitted that at its best, on Mr Sanli’s own evidence, he resigned because Ms Salem said to him “so are you going to hand in your resignation.” It said that this is insufficient to establish that Mr Sanli had been constructively dismissed.55 It was submitted, that as an industrial officer with a union, he must have understood the significance of his resignation.56 Further, it was put that he did not attempt to withdraw the resignation.57 It submitted, on an objective58 assessment of the evidence, it could not be found that if he did not resign, his employment would be terminated. Therefore, it should have been reasonably apparent to him that his claim had no reasonable prospects of success.

[34] Further, it was submitted that he knew he engaged in misconduct by accessing internet pornography during working hours. It was submitted that the claim that the material was only accessed when he was not working should be rejected. 59 It was submitted that this conduct carried substantial reputational risk for the union.60 It submitted that Mr Sanli was aware of this material prior to the conciliation and hence his discontinuance after the compliance date for the HSU to put on its material was unreasonable and caused the HSU to unnecessarily incur costs.61

[35] It further submitted that by 22 June 2017 and before costs had been incurred, except for the costs of the Deloitte Report, Mr Sanli was put on notice that the HSU knew that he had accessed pornography during working hours and, given his resignation, he should have discontinued at that time. The delay in discontinuing his application was an unreasonable act or omission which caused the HSU to engage lawyers and incur substantial costs.

[36] In relation to the quantum of costs claim, it was submitted that between late July 2017 and 11 August 2017 the HSU directly briefed senior and junior counsel. From 11 August 2017, Holding Redlich acted for the HSU. It submitted that the Commission has discretion in relation to the quantum of costs. The solicitor’s costs were claimed in accordance with Schedule 3.1 of the Fair Work Regulations 2009. It was submitted that Mr Sanli cannot complain about the costs of the Deloitte Report because he knew he had accessed pornography in working hours and he had kept it a secret from his employer.

[37] The HSU submitted that it was reasonably necessary to have two counsel because during the time of the direct brief it was reasonable to engage two counsel so that work could be appropriately divided. And it was further submitted that there was some complexity, due to the evidence of the information technology expert and that the case was of some importance because the material uncovered was a significant reputational concern to the HSU.

Submissions of Mr Sanli

[38] It was submitted on the facts available to Mr Sanli when he filed his application that if he was correct in his view that the employment termination was brought about in the manner of constructive dismissal, then it cannot be said that his application had no reasonable prospects of success. It was submitted that he had an arguable case. 62

[39] In response to the claim that Mr Sanli acted unreasonably in not discontinuing the application earlier, it was submitted that this claim was based on the allegation that Mr Sanli accessed inappropriate websites during working hours and this had been discovered after dismissal. Mr Sanli accepted that he received some evidence to support this allegation prior to the conciliation. It was said that when initially presented with this information, it did not concern Mr Sanli as he maintained that he did not access any inappropriate sites when he should have been working. It was said that only after he received the CD attached to the Deloitte Report that he became aware of the degree of intrusion into his private affairs and that this information would be aired in public that he decided to discontinue his application. It was submitted that the decision to discontinue was not unreasonable. 63

[40] It was further submitted that there is no reasonable basis on which the Commission should award costs for senior and junior counsel. It was submitted that this was a relatively straight forward matter. It submitted that all unfair dismissal matters are important to the parties and this one is no different. 64

[41] It was further submitted that the $23,000 cost for the Deloitte Report should not be included in any costs order. It submitted that it was not prepared for the purpose of the arbitration but for the conciliation. Further, it was not provided to Mr Sanli until two days before his material was due. 65

[42] Further, it was submitted that even if the prerequisites for the awarding of costs are met, the Commission should not exercise its discretion to award costs and, if it did, the costs should be limited to the reasonable legal costs of a solicitor and one counsel.

The Legislative Framework

[43] The Commission has the discretion to award costs against a party if certain preconditions are met.

[44] Section 611 of the Act provides as follows:

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

[45] Section 400A of the Act provides as follows:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

[46] The HSU did not rely on s.611(2)(a) of the Act.

[47] The issues to be resolved are:

1. Should it have been reasonably apparent to Mr Sanli that his claim had no reasonable prospects of success?

2. Did Mr Sanli cause costs to be incurred because of his unreasonable act namely failing to discontinue earlier?

[48] In Baker v Salva Resources Pty Ltd 66a Full Bench summarised the approach to be taken in relation to section 611(2)(b) of the Act as follows:

"[10] The concepts within s.611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:

•  should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test [Wodonga Rural City Council v Lewis, PR956243, at para 6]; and

•  a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless [Deane v Paper Australia Pty Ltd,PR932454, at paras 7 and 8] or so lacking in merit or substance as to be not reasonably arguable. [A Smith v Barwon Regional Water Authority, [2009] AIRCFB 769 at para 48]."

[49] In this matter, I am required to make an assessment of Mr Sanli’s prospects of success without making findings about the factual disputes between the parties. I am not, in this costs application, making a determination of the HSU’s objection or the merits of Mr Sanli’s case. While clearly I have had the benefit of hearing Mr Sanli and My Koyu and one of the witnesses called by the HSU at first instance, it was not submitted that I had heard all the evidence that would have been before the Commission had the matter gone to hearing.

[50] However having regard to the material before me, I am not satisfied that Mr Sanli’s claim, that he was forced to resign by his employer, did not have a reasonable prospect of success. This is not to say his case was strong. Mr Sanli did write out two resignation letters. If I accept his evidence that Ms Salem asked him if he was going to resign, that alone, would not provide a basis to conclude he had been constructively dismissed.

[51] However, the following is not contested.

[52] Mr Sanli was told by Mr David Asmar, after advising him that he would not be voting for him, that if he did not resign he would be sacked. Now I accept that Mr Asmar is not an official of the HSU and his comments are not those of the Branch Secretary. However the unchallenged evidence was that Mr Asmar has some unofficial role in the HSU. For example, he played a role in obtaining employment for Mr Koyu with the HSU. 67 He organised meetings involving Mr Sanli, Ms Asmar and other members of what he called the “Plumbers Group” during working hours.

[53] Further, it was clear from Mr Sherriff’s reaction that morning, that there was significant anger about Mr Sanli’s failure to vote for Mr Asmar from Mr Sherriff who was a supporter of Mr Asmar.

[54] I am satisfied that Mr Sanli was asked by Ms Salem to meet with her. I found Ms Salem’s explanation about why she called Mr Sanli on that Monday morning unconvincing. She did not satisfactorily explain why she called him when she had seen him only the previous week 68 for their usual catch up. Ms Salem had been contacted by Ms Asmar out of hours on Sunday night and she had been directed to dismiss Mr Koyu and speak to Mr Sanli. I am satisfied that it was because of Ms Asmar’s phone call that Ms Salem contacted Mr Sanli. There was no reason for Mr Sanli to meet with Ms Salem that morning and I am satisfied that he did so because she told him to meet with her.

[55] Mr Koyu, who also did not vote for Mr Asmar, had been dismissed immediately before Mr Sanli’s meeting with Ms Salem. It was not unreasonable for Mr Sanli to conclude that Mr Koyu was dismissed for failing to vote for Mr Asmar.

[56] I am satisfied that Ms Salem did ask Mr Sanli if he was going to resign. I prefer Mr Sanli’s version of the conversation with Ms Salem to the extent that it conflicts with Ms Salem’s. Ms Salem did not come across as an uninterested bystander reporting what she heard and what she said. For example, Ms Salem’s evidence in relation to organiser’s work patterns was unconvincing. While I am satisfied that Mr Sanli exaggerated the amount of out of hours work he performed, Ms Salem’s evidence that Mr Sanli only occasionally worked disparate hours was unconvincing, particularly given Mr Sanli received an additional week’s annual leave and a monthly ADO for, from time to time, working more than normal office hours including on evenings and occasional weekends. 69 Her evidence about why Mr Koyu was dismissed was also unconvincing particularly the evidence that he was dismissed because it was not working out given the unchallenged evidence that Mr Koyu had only recently had his employment confirmed by the BCOM. Ms Salem was also reluctant to concede that there were no issues with Mr Sanli’s performance.70 She was unwilling in her oral evidence to say that Ms Asmar told her to sack Mr Koyu despite stating in her witness statement that Ms Asmar directed that she should end his employment.71

[57] I am not satisfied that Mr Sanli’s internet access was cut off deliberately but it is not surprising that, given Mr Asmar’s comment at the conference, that his lack of internet access contributed to his view that his employment was at risk because of his failure to vote for Mr Asmar.

[58] I am satisfied that Mr Sanli thought that he, by not voting for Mr Asmar, had put his employment in jeopardy.

[59] I am satisfied that when one objectively assesses these factors it is not possible to conclude that the jurisdictional objection put forward by the HSU was bound to succeed.

[60] It was submitted that I could be satisfied that Mr Sanli’s case had no reasonable prospects of success because Mr Sanli knew that he accessed pornography during working hours and that any dismissal for that reason would be fair. I note that, despite relying on this as justifying dismissal, in its submissions at first instance there was no evidence called by the HSU or by any official of the HSU that it would have dismissed Mr Sanli had it known about him accessing inappropriate sites during working hours.

[61] I am satisfied that Mr Sanli accessed those sites using his own phone and did not use union resources to access the sites.

[62] I am satisfied that Mr Sanli was aware of his internet access to inappropriate sites. However I am not satisfied that accessing those sites during working hours on his own phone would necessarily lead to a finding that his dismissal was fair. There is no hard and fast rule that accessing inappropriate websites during working hours results in dismissal being found to be fair.

[63] As was said by the majority in B, C and D v Australia Post

[52] In pornography cases there will typically be no contest in relation to whether or not the misconduct – the breach of policy - occurred because the sending or receipt of the offending material will usually be proved unequivocally by computer records. That is, in most cases there will be no contest as to the existence of a valid reason. But that is not the end of the inquiry. The bedrock principle to which we have referred means that an issue remains as to whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of that valid reason. Typically, as in this case, it will be the central issue. 72

[64] Given the above, I am therefore not satisfied that Mr Sanli’s contention that dismissal was unfair had no reasonable prospects of success.

[65] It was further contended that Mr Sanli should have discontinued his application after he was provided with evidence that supported the HSU’s contention that he had been accessing inappropriate websites and sending and/or receiving inappropriate emails during working hours. This material was provided to him just before the conciliation conference. It was submitted that it was unreasonable for Mr Sanli to wait until after the HSU filed the material it was relying on to discontinue his application. This unreasonable act caused the HSU to incur the costs of preparing its evidence and submissions.

[66] I am not satisfied that it was unreasonable for Mr Sanli to wait until he saw the material filed by the HSU before deciding to discontinue his application. It was his unchallenged evidence that the data provided to him was not without doubt, for example, it had dates from 2014 and 1970 which predated his purchase of the phone and in one case his birth. 73 Further, Mr Sanli gave unchallenged evidence that all the images that were designated as inappropriate were forwarded to him.74

[67] As I am not satisfied that Mr Sanli’s application had no reasonable prospects of success and I am further not satisfied that his conduct in awaiting the HSU’s material before deciding to discontinue was unreasonable, I must dismiss the application for costs and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

R. Van De Wiel for the Health Services Union of Australia

M. Addison for Mr Sanli.

Hearing details:

2017.

Melbourne.

October 25 and 26.

 1   Exhibit R1 at [19]

 2   Ibid

 3   Ibid at [21]-[22] and Exhibit R2 at [22]

 4   Exhibit R1 at [22]

 5   Ibid at [34]

 6   Exhibit A4 at [10]

 7   Ibid at [9] and Transcript PN 436-441

 8   Ibid at [10]

 9   Exhibit R1 at [23]

 10   Ibid at [24] and Exhibit A4 at [12]

 11   Ibid at [24]

 12   Transcript PN 402

 13   Exhibit A8 at [4]

 14   Ibid

 15   Transcript PN 734

 16   Exhibit R2 at [11]

 17   Ibid at [13]-[15]

 18   Ibid

 19   Ibid at [16]

 20   Ibid

 21   Exhibit A5 at [9]

 22   Ibid

 23   Ibid at [10]

 24   Exhibit R2 at [18]

 25   Exhibit R1 at [28]

 26   Exhibit R2 at [2]-[6]

 27   Ibid at [8]

 28   Ibid at [9]

 29   Exhibit R1 at [27]

 30   Ibid

 31   Exhibit A7 at [6]-[9]

 32   Exhibit R1 at [30]-[33]

 33   Exhibit A4 at [15]

 34   Exhibit A5 at [5]

 35   Exhibit R1 at [34]

 36   Ibid at [36]

 37   Ibid at [37]

 38   Exhibit A4 at [19]

 39   Exhibit R1 at [42]-[43]

 40   Exhibit A6 at [13]

 41   Exhibit A4 at [22] and [25]

 42   Exhibit A11

 43   Exhibit R1 at [49]

 44   Ibid [50]-[51]

 45   Ibid at [50]

 46   Ibid

 47   Ibid at SS6

 48   Ibid at [54]

 49   Ibid

 50   Exhibit A4 at [4]

 51   Exhibit R1 at [59]

 52   Exhibit A3

 53   Exhibit A2 at [4]

 54   Submissions of the HSU at [11]

 55   Ibid at [13]

 56   Ibid at [15]

 57   Ibid at [16]

 58   Ibid at [20]-[32]

 59   Ibid at [35]

 60   Ibid at [36]

 61   Ibid at [37]

 62   Submissions of Mr Sanli at [14]

 63   Ibid at [15]-[19]

 64   Ibid at [20]-[21]

 65   Ibid at [22]-[23]

 66   [2011] FWAFB 4014

 67   Exhibit R2 at [2]-[4]

 68   Transcript PN 289

 69   Exhibit A4 at [4]

 70   Transcript PN 292-297

 71   Exhibit A4 at [9] and Transcript PN 336

 72   [2013] FWCFB 6191

 73   Exhibit R1 at [59]

 74   Ibid at [61]

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