Lei Xu v Pacific HVAC Engineering Pty Ltd
[2018] FWC 272
•18 JANUARY 2018
| [2018] FWC 272 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lei Xu
v
Pacific HVAC Engineering Pty Ltd
(U2017/8994)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 18 JANUARY 2018 |
Application for an unfair dismissal remedy.
[1] Mr Lei Xu was employed by Pacific HVAC Engineering Pty Ltd 8 August 2011 until his employment was terminated on 31 July 2017.
[2] Mr Xu represented himself, and Mr Brad Scott, the Production manager, represented Pacific. After conferring with the parties the matter proceeded by way of a conference. 1
Evidence
[3] At the time of his dismissal Mr Xu was employed as the Warehouse Supervisor. 2 He had started with the business as a storeman and was then promoted to Production Planner and in November 2016 he was promoted to Warehouse Supervisor.3
[4] Mr Xu’s employment was terminated due to unsatisfactory performance. 4
[5] When he commenced as Warehouse Supervisor he asked that the number of staff employed in the warehouse be increased from five to six but this request was denied. 5 In February 2017 Mr Xu asked that one of his team be replaced and this occurred.6 Mr Simon Lazer was moved out of the team and he reported to Mr Scott. It was Mr Scott’s evidence that because Mr Xu was unable to manage his team he used Mr Lazer to organise the warehouse.7
[6] Mr Scott gave evidence about Mr Xu’s performance in the months after his appointment and discussions he had with him. 8
[7] In February to March Mr Xu developed a project plan to sort out some stock. Mr Scott asked him to discuss the plan with the traffic management committee. The committee initially rejected the proposal but given Mr Xu’s effort Mr Scott decided to assist him with the final stages of the implementation and in June got the committee to agree to some changes. 9
[8] Mr Scott reviewed the performance of the warehouse since Mr Xu had been appointed and formed the view that “the productivity and performance of the warehouse had declined.” 10 Mr Scott acknowledged that the figures were a crude measure but he said it was evidence that with less staff the warehouse achieved more.
[9] On 11 April 2017 Mr Xu met with Mr Scott and Mr Richard Agar-Wilson, the General Manager. He said he was told he was not meeting expectations. Mr Xu said he was told he had not freed up much space in the inward goods quarantine area. 11 Mr Scott said that a number of issues were raised at the meeting;
(1) that there had been a significant reduction in the contribution of warehouse personnel into port activities for day-to-day operations and an increase in mistakes. 12
(2) that treating the carton aisle and quarantine area as a dumping ground was unacceptable and that he is expected to ensure that items are processed correctly. 13
(3) that maintenance of his area also includes keeping aisles clear and his practice of blocking and allowing his team to do the same was having an adverse effect on the efficient use of the warehouse and contributing to the lack of discipline in following procedures throughout the warehouse.
(4) That he is required to intervene when necessary to prevent bad practices that negatively affect the use of warehouse space or undermine their accuracy of transactions completed by warehouse personnel. 14
[10] Mr Xu responded by saying that there was a lack of cooperation between warehouse staff and he had not been given enough manpower to complete day-to-day activities and work towards achieving his goals. Mr Xu said there was a lack of communication between himself and his team and they take time off without his knowledge. Mr Xu said he did not get enough support from management and that he needed a 3rd forklift.
[11] It was agreed to assist Mr Xu to return the warehouse to order a 15 week plan was put together to separate the task into small achievable packages. Further an additional forklift would be hired and additional staff would be provided for projects that Mr Xu and Mr Scott agreed would benefit the performance of the warehouse. There would be a further meeting in mid-June to review progress. 15 As part of the plan there was agreed that Mr Scott would walk around with Mr Xu each day at 4.30pm to chat about his progress on that day.16
[12] Mr Xu was advised that there needed to be an immediate improvement 17 in all these areas or it would lead to further disciplinary action.18 However Mr Scott accepted that Mr Xu was not told that if he did not achieve the outcomes set out in the plan he would be dismissed.19
[13] Mr Scott said the action plan was broken down into smaller chunks so that it was not too overwhelming. It was intended to help him in his development and make progress in achieving the incentives that had been negotiated. Mr Scott said the tasks were achievable because they equated to moving and sorting no more than one pallet per person per week in the warehouse. 20
[14] Mr Xu said that these daily meetings did not occur. 21 Mr Scott gave evidence that they did occur but because Mr Xu asked that they be held earlier as 4:30 pm was a busy time they held at varying times.22 In cross examination Mr Xu accepted that there were regular informal discussions about his progress23 but he did not understand that these discussions related to the plan.24
[15] The action plan specified tasks that need to be completed and when they need to be completed by. 25 Mr Xu said that he told Mr Scott and Mr Agar-Wilson that he did not agree with the plan but he was told to give it a try.26 In cross examination Mr Xu agreed that he was fine with the plan but suggested it be done in a different order.27
[16] In response to Mr Xu’s request for additional staff it was made clear that if he put together a project plan which could be used to justify additional staff it would be considered but Mr Xu never produced a plan. 28
[17] In late May 2017 one of Mr Xu’s team was seconded to New Zealand for 6 weeks. So that he had sufficient competent staff to perform the work he suggested that a member of the production team who had a forklift license be moved to the warehouse. Mr Scott told him that he could either have an agency casual or Simon could return to the warehouse. As Mr Xu had had Simon transferred out of the warehouse he opted for agency staff.
[18] The 1st casual staff member engaged on 24 April obtained alternative employment and finished up on 5 May. During May 2017 in addition to being one staff member short one of his team had 3 days absent, another 2 days absent and Mr Xu himself was absent for 4 ½ days. 29
[19] After the 1st casual left there was a 2nd casual who lasted a day and the 3rd casual working from 17 May. 30
[20] May was a very busy month resulting in a significant increase in overtime both for the production team and the warehouse team. It was Mr Xu’s evidence that his main focus during May was getting daily duties and orders done as well is troubleshooting any delays, filling positions that were vacant and training the new casual workers. Mr Xu said he did not have time to work on his incentive projects nor the 15 week plan. He said there was no discussion with Mr Scott during this time as he was also very busy. 31
[21] In June Mr Xu trained another 3 agency staff one who lasted from 6 June to 9 June; the other one from 13 June to 16 June (with 15 June off); and the 3rd started on 22 June and worked until 7 July. 32
[22] On 14 June 2017 Mr Scott conducted an audit of Mr Xu’s progress and found that Mr Xu had only address 18 items of the planned 50 items. 33
[23] Another meeting was held on 22 June with Mr Xu, Mr Scott and Mr Agar-Wilson. At that meeting Mr Scott advised there had not been much progress on the 15 week plan and Mr Xu was told that his performance was still lacking and that this might lead to his dismissal. 34 Mr Scott said that Mr Xu was warned that the 15 week recovery plan was falling well behind schedule and that if he was unable to engage his team members to move up to one pallet per day to advance the progress of the recovery plan, he would fail to complete all agreed tasks by the agreed date. He was also warned that he cannot continue to avoid taking action to intervene to correct bad practice that is having an adverse effect on warehouse operations and that failure to improve in these areas could lead to further disciplinary action or dismissal.35
[24] Mr Xu replied that his team was not strong enough and he required trained support from the production department and he was not getting sufficient support from Mr Scott. Mr Xu was told that he had the full support of Mr Scott and that he was able to utilise a production worker who was trained in warehouse activities to support the warehouse in times of need and that that worker could be utilised in the future providing it did not interfere with production scheduling. Mr Xu was reminded that if he wanted to get more from his team he had to engage them in meaningful activities and that ignoring their needs would only lead to disengagement which is likely the reason why he was unable to retain any agency casual staff for an extended period of time and why under his supervision they had had to rotate 7 individuals to a single warehouse vacancy over 9 weeks. 36
[25] Mr Scott told Mr Xu that he had only completed 18 of the 50 pallets in his performance management plan. 37 He told Mr Xu that he was at risk of being dismissed if his performance did not improve38 Mr Xu complained about a lack of manpower and the increased workload from having to train casual staff. He said he asked for additional staff but this was refused.39
[26] On 21 July 2017 there was another meeting with Mr Xu, Mr Scott and Mr Agar-Wilson. At that meeting there was discussion about Mr Xu’s performance. Mr Xu responded to criticisms of his performance saying his “hands were tied” and he cannot use his staff to do what he wants as they had a fixed view about their roles. Mr Xu complained about a lack of support from management and said that until the One Warehouse project was put in place he could not expect his team to do as he asks. He further complained about a lack of manpower. Mr Xu was told that the majority of mistakes came from poor practices and a lack of attention to detail and there was no reason he should ignore this. He was also told that he could direct his staff to perform work outside of their roles and he would be supported by management. 40
[27] After July 2017 when one of his permanent team returned another took annual leave. Mr Xu was then required to train another casual employee. Mr Xu was on carer’s leave on 12 and 13 July and took annual leave on 17 and 18 July. When he returned from leave he said that Mr Scott complained about him taking time off due to his carer’s role. 41 On 24 July 2017 Mr Xu only worked a half day as he was sick and he did not return to work until 31 July 2017. He said he provided medical certificates to Mr Scott.42
[28] Mr Scott gave evidence that on 26 July 2017, in Mr Xu’s absence, he asked another worker to sort out the quarantine area and this worker sorted out 5 items on Mr Xu’s plan in a day and a half whilst still completing his own work. 43
[29] On 28 July 2017 Mr Scott reviewed the 15 week plan and noted that 7 of 13 items in week one; 4 of 5 tasks from week two; 4 of 15 items from week three; and 7 of 17 tasks from week four had been completed. None of the items from the remaining weeks had been completed. 44
[30] On 31 July 2017 Mr Xu attended another meeting with Mr Scott and Mr Agar-Wilson and was told that he had failed to complete the 15 week plan and that his employment was terminated. 45 Mr Scott said he told Mr Xu that he had only completed 18 out of 50 task and that he had failed to use the checklist to assist him monitor areas under his supervision; he had failed to ensure existing operating procedures were followed; and he failed to engage with his team to provide guidance and structure.46 Mr Xu was terminated with immediate effect and he was paid 4 weeks’ pay in lieu of notice plus his entitlements.47
[31] Mr Scott accepted in cross examination that due to Mr Xu’s absences after the 21 July he didn’t have sufficient time to improve 48 but said that all the issues had been raised before.49
[32] Mr Scott gave evidence that since Mr Xu’s dismissal there had been considerable improvement in the warehouse and that every item on the action plan was addressed within 6 weeks of his departure. Mr Scott said that this occurred without any additional staff. The only other staff involved were Simon Lazer and a casual who replaced Mr Xu. 50 In cross-examination Mr Scott gave evidence that some of the tasks had been completed with 6 months of Mr Xu’s departure and some was still in the process of being sorted.51
[33] Mr Agar-Wilson agreed that when Mr Xu asked for additional staff he was told that he would not be given additional labour unless he came up with a specific plan of how to use it. 52
[34] Mr Agar-Wilson gave evidence that the performance plan started with some very simple tasks and then progressed but it effectively broke down a project to clear the quarantine area into manageable individual tasks. 53 He said it was made clear to Mr Xu at the meeting on 22 June 2016 that a failure to improve would lead to disciplinary action. He acknowledged that Mr Xu felt that it was a failure of resourcing and support on the company’s part that was making the plan fail.54 At the meeting on 21 July 2017 Mr Xu was advised that if he could not progress the project his employment was at risk.55 He was also told that they were concerned that his basis tasks were not being performed. Mr Xu did not resile from his position that this was caused by a lack of labour and support.56
[35] At the completion of the 15 week plan Mr Agar-Wilson said a review occurred and none of the tasks were completed. Mr Agar-Wilson said that in reviewing his progress Mr Xu had not completed week 1 of the plan. It was his evidence that he decided to dismiss Mr Xu not because he hadn’t completed the plan but because there was insufficient progress. 57 Mr Agar-Wilson acknowledged that Mr Xu was surprised at his dismissal but he did not understand this because he said they “had conducted several hard conversations with [Mr Xu] about his lack of performance, his lack of progression on the 15 week project and that his employment was tied to improving his level of performance.”58
[36] He did not accept that Mr Xu required additional staff as the whole 15 week program was completed by the remaining staff without additional labour. 59
[37] Mr Scott Uding the Inventory Co-ordinator gave evidence that after Mr Xu was terminated no warehouse supervisor was appointed but two the employees were made leading hands. Mr Xu had been replaced by a casual and he said they had made a lot of progress in a short period of time. 60
[38] Mr Flavio Ha a leading hand gave evidence that after Mr Xu was dismissed that the “warehouse has been more productive, with significant changes such as some stock locations being organised, most warranty stock has been cleared out and back aisle YZ is more or less sorted.” He said this had been achieved without overtime or additional staff. 61
[39] Mr Xu’s wife became pregnant in December 2016 and due to illness associated with the pregnancy Mr Xu had to take time off work to care for his wife and his 2 young children. From February to July 2017 Mr Xu took 53.5 hours paid personal leave and 40.2 hours of unpaid leave in addition to 52.4 hours of annual leave. 62
[40] There were other issues raised in the evidence about Mr Xu’s attendance at work; his punctuality; his relationship with his team; and his meal breaks. I have not addressed those in this summary of the evidence because his employment was not terminated for these reasons.
[41] In assessing the evidence I accept that all the witnesses attempted to describe events that had occurred to the best of their recollection albeit through the framework of their respective positions. Mr Xu was aggrieved about his dismissal and his evidence was at times contradictory. For example in his witness statement he said he was not given a verbal waring on 11 April 63 yet accepted in cross-examination that he was told that if there was no improvement it could lead to disciplinary action.64 I further note that document 10 of the Respondent’s documents which Mr Scott described as “details of the meeting” of 22 March 2017 was not a contemporaneous record of the meetings with Mr Xu.65 The document is Mr Scott’s recollection of events. Exhibit R4 is a record of the contemporaneous records kept of interactions with Mr Xu. If there are any factual matters in dispute I prefer Mr Scott’s sworn evidence and Exhibit R4 which are contemporaneous notes over document 10.
[42] I make the following findings:
1. Mr Xu did not complete the 15 week improvement plan. This is not in dispute.
2. That in part he did not-complete the plan because of:
a. Staff absences including his own. It was not dispute that there were staff absences during this period.
b. Turnover of casual staff.
While there is a dispute about the cause of the turnover of casual staff it is not necessary for me to resolve that dispute. It is not disputed that during the 15 weeks one month was particularly busy and that Mr Xu was down one of his permanent staff and there was a high turnover of casual replacement staff. Mr Scott was of the view that Mr Xu contributed to the turnover of casual staff and did not utilise the casual staff effectively which was denied by Mr Xu. It is not necessary to resolve this dispute given my findings below.
3. During Mr Xu’s absence, another staff member was able to complete 5 items on Mr Xu’s plan in a day and a half whilst still completing his own work. This was not challenged by Mr Xu.
4. A substantial part of the plan was completed after Mr Xu’s departure without any additional resources. While Mr Xu submitted that there were additional staff, I accept the evidence of Mr Scott that while a casual replaced Mr Xu that did not add to the overall count. I further accept that Mr Laser who was under Mr Scott’s direction supervision was available to perform warehouse work whilst Ms Xu was supervisor and this did not add to the overall count. 66
5. The plan was reasonable. Mr Xu did not call any evidence to support a finding that the plan itself was unreasonable.
6. Mr Xu was told on 11 April that if he did not improve he would face disciplinary action. Mr Xu confirmed this in transcript. 67
7. Mr Xu was told on 22 June 2017 if his performance did not improve he could be dismissed or disciplined. Mr Xu confirmed this in his statement. 68
8. Mr Xu was told on 21 July 2017 that he was not meeting his performance targets. 69
9. Mr Xu was absent from work 5 days in the period between 21 July and his dismissal on 31 July 2017. 70
Was the termination of employment harsh, unjust or unreasonable?
[43] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(a) whether there was a valid reason for the dismissal related to the Mr Xu’s capacity or conduct (including its effect on the safety and welfare of other employees);
[44] I am satisfied that there was a valid reason for Mr Xu’s dismissal. Mr Xu was not meeting the performance expectations for his position and he was put on a performance improvement plan. There was no basis on which I could conclude that the expectations were unreasonable. Mr Xu did not meet the expectations set out in the plan which set weekly targets. While I accept that there were reasons beyond his control that meant he was not able to meet all the targets set out in the performance plan that he was not able to complete even half of the required tasks by the end of the review period is evidence that he did not have the capacity to perform the role of warehouse supervisor. That the plan was not too onerous is evidence by the fact that a significant number of the tasks were able to be completed after Mr Xu’s employment was terminated.
[45] I asked Mr Xu, given that the staff member who went to New Zealand didn’t leave until the end of April, why he was not able to achieve the first three weeks of the plan. Mr Xu said it was because he did not have the fifth person he had asked for. 71 Mr Xu submitted that because he did not have the staffing levels he required he could not do any of the work on the plan.72 I do not accept this submission. The evidence showed that some of the tasks were able to be completed in Mr Xu’s absence and without additional staff. Even if I accepted Mr Xu’s submission that Simon Laser performed more work in the warehouse after Mr Xu was dismissed and this assisted the team complete more of the work it still does not explain why he made so little progress on the plan. I accept Mr Agar-Wilson’s evidence that the reason Mr Xu was dismissed was because he had not made sufficient progress on the plan, not because he didn’t finish the plan. I am satisfied that his lack of progress is evidence that Mr Xu was not able to meet the requirements of his position and this was a valid reason for the dismissal.
s387(b) whether Mr Xu was notified of that reason;
[46] In Crozier v Palazzo Corporation Pty Limited 73 a Full Bench of the Australian Industrial Relations Commission considered the obligation under an identical provision in a predecessor Act. It held that “as a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified.”74
[47] I am satisfied that Mr Xu was told that if he did not improve his performance that he risked being terminated. So much was made clear on 22 June 2017. However the decision was taken to terminate Mr Xu at the end of the 15 week plan and he was told of this decision at the meeting on 31 July 2017. He was not provided with an opportunity prior to the decision being made to put forward any reasons why he should not be dismissed.
s387(c) whether Mr Xu was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[48] Consistent with the decision in Crozier, the opportunity to respond to the reason is an opportunity to respond prior to the decision being made. 75 Accordingly I am satisfied that Mr Xu was not given an opportunity to respond.
s387(d) any unreasonable refusal by the employer to allow Mr Xu to have a support person present to assist at any discussions relating to dismissal;
[49] Mr Xu did not ask to have a support person present so this criterion is a neutral consideration.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Xu had been warned about that unsatisfactory performance before the dismissal;
[50] Mr Xu had been warned about his unsatisfactory performance. This was done at the meeting on 11 April and 22 June 2017. Mr Xu knew his job was at risk. He was provided with an opportunity to improve his performance. This was not a mere exhortation to improve. He was provided with a detailed plan. There were discussions, both formal and informal, about his performance and how he could improve his and his team’s improvement. I am not satisfied that he was not provided with support from his managers. Even if he felt that he did not have the support of Mr Scott, which I do not accept, Mr Agar-Wilson gave evidence that Mr Xu was able to and did have access to other managers. 76
s387(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;
[51] There were no submissions or evidence that the size of the employer’s enterprise had any impact on the procedures followed in effecting the dismissal.
s387(g) the degree to which the 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;
[52] There were no dedicated human resource management specialists or expertise in the enterprise. It was submitted by Pacific that had they had such specialists it was likely that the warnings and the performance plan would have been signed. Mr Xu submitted that because there was no human resources department there was no proper staff assessments made.
[53] I am satisfied that the absence of human resources staff impacted on the procedures followed. Had proper advice been received, then Mr Scott and Mr Agar-Wilson would have provided Mr Xu the opportunity to respond prior to making the decision to terminate his employment.
s387(h) any other matters that FWC considers relevant.
[54] Mr Xu submitted that he was treated differently to other employees. Keith who was a production leading hand was demoted as a result of his poor performance. 77 He further submitted that he had been treated differently to union members because he did not have a support person. However it was the shop steward’s evidence that he sat in on meetings with union members because they asked him.78 Mr Xu did not ask the shop steward to attend his meetings. There was no evidence before me that there were other employees in a like situation to Mr Xu that were treated differently to him. Keith was a leading hand not a supervisor. There was no evidence of the Keith’s circumstances. There was no evidence for example that he was placed on an improvement plan prior to his demotion.
[55] Further, I do not accept that Mr Scott did not, during Mr Xu’s employment, have regard to Mr Xu’s personal circumstances. The evidence established that Mr Xu had been able to modify his starting time and finishing times 79 before he was appointed as supervisor to meet his family responsibilities and this continued when he was supervisor. He was also able to leave at short notice if there were complications at home.80 He was able to access his annual leave at short notice when he had run out of sick leave.81 However after he took time off to take his wife to get a massage he was required to bring a certificate if he required carer’s leave.82 While Mr Xu gave evidence that Mr Scott complained about the amount of time he was taking off there was no evidence that Mr Xu was denied leave. He was however required to notify Mr Scott if he was not going to be in or was going to be late.83 I am satisfied that Mr Xu’s absence from work was not a reason for his dismissal.
[56] I have had regard to the fact that Mr Xu was employed since 2011 and had been promoted on two occasions. I have had regard to the fact that this was a difficult time for Mr Xu due to his wife’s difficult pregnancy.
[57] Mr Xu submitted that he did receive sufficient support from his manager, Mr Scott. However this was not born out be the evidence. That Mr Scott did not agree with Mr Xu’s request for additional staff is not indicative of a lack of support. The evidence showed that when Mr Xu raised specific concerns about his team members, Mr Scott backed him up. 84
Conclusion
[58] I am not satisfied that the dismissal was unfair.
[59] I have carefully considered if the defects in the Pacific’s process should outweigh the valid reason for dismissal. In circumstances where a properly conducted process may have altered the outcome of the disciplinary process the procedural defects must outweigh the valid reason. To do otherwise would render the need for an employee to be given an opportunity to respond to any reason of little value. While the procedures followed were flawed Mr Xu was on notice that unless there was an improvement in his performance his employment was at risk. Even accepting the difficulties faced by Mr Xu due to staff shortages and his own personal circumstances, Pacific was not unreasonable in expecting him to work with the staff he had and make more progress on the tasks. Mr Xu was terminated with notice for poor performance. There was a valid reason for the dismissal.
[60] I am satisfied that even had procedural fairness been afforded Mr Xu his employment would have been terminated. I do not doubt that had the discussion occurred prior to the decision being made Mr Xu’s response would have been to repeat his earlier explanations.
[61] I do not accept that Mr Xu was treated differently to other employees as there is insufficient evidence before me to enable me to reach this conclusion. I am not satisfied that Mr Xu’s personal circumstances are such that the termination was harsh. Accordingly Mr Xu’s application for an unfair dismissal remedy is dismissed and an order 85 to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
L. Xu for himself.
B. Scott for the Respondent.
Hearing details:
2017.
Melbourne.
21 & 22 November.
1 Transcript PN 16
2 Exhibit A1 at [3]
3 Ibid at [1]-[2]
4 Respondent’s document 42
5 Exhibit A1 at [10]
6 Ibid at [14]-[17]
7 Exhibit R1 at [69]-[75]
8 Ibid at [76]-[88]
9 Ibid at [89]-[93]
10 Ibid at [109]
11 Exhibit A1 at [28]-[29]
12 Exhibit R4, 11/04/2017
13 Ibid
14 Exhibit R2 at document 10
15 Exhibit R2 at document 10
16 Exhibit R1 at [120]-[121] and Exhibit A1 at [28]-[32]
17 Transcript PN 156
18 Ibid PN 157
19 Ibid PN 956
20 Exhibit R1 at [117]-[118]
21 Exhibit A1 at [33]
22 Witness statement of Bradley Scott [121] - [122]
23 Transcript PN 138
24 Ibid PN 140
25 Respondent’s document 18
26 Exhibit A1 at [32]
27 Transcript PN 124
28 Ibid PN 159-160
29 Exhibit A1 at [40]
30 Ibid at [42]
31 Ibid at [44]
32 Ibid at [45]
33 Exhibit R1 at [194]
34 Exhibit A1 at [46]
35 Transcript PN 957 and Respondent’s document 10 at 13
36 Respondent ‘s document 10 at 13
37 Exhibit R1 at [200]
38 Ibid at [201] and Exhibit A1 at [46]
39 Exhibit A1 at [50]
40 Exhibit R4
41 Exhibit A1 at [56]-[57]
42 Ibid at [60]-[63]
43 Exhibit R1 at [246] and Transcript PN 1122
44 Exhibit R2 at document 41
45 Exhibit A1 at [64]-[65]
46 Exhibit R1 at [247]-[254]
47 Respondent’s document 42
48 Transcript PN 1662
49 Ibid
50 Exhibit R1 at [267]-[270]
51 Transcript PN 1012
52 Exhibit R6 at [9]
53 Ibid at [12]
54 Ibid at [13]
55 Ibid at [14]
56 Ibid
57 Transcript PN 2154
58 Exhibit R6 at [16]
59 Ibid at [17]
60 Exhibit R5 at [58]-[59]
61 Exhibit R3 at [18]-[19]
62 Respondent’s document 27
63 Exhibit A1 at [34]
64 Transcript PN 156-7
65 Transcript PN 621
66 Transcript PN 1039
67 Ibid PN 157
68 Exhibit A1 at [46]
69 Exhibit R4
70 Exhibit A1 at [60]-[63]
71 Transcript PN 2243-2254
72 Ibid PN 2255-2256
73 Print S5897
74 Ibid at [73]
75 Ibid at [75]
76 Transcript PN 2095-2096
77 Ibid PN 894-897
78 Ibid PN 1242
79 Ibid PN 337-343
80 Ibid PN 351
81 Ibid PN 355
82 Ibid PN 361-363
83 Ibid PN 370-388
84 Exhibit R1 at [155] and [266] and transcript PN 465-466
85 PR599512
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