Mark Notman v Neway Transport

[2011] FWA 5162

[2011] FWA 5162

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Notman
v
Neway Transport
(U2011/6283)

COMMISSIONER BISSETT MELBOURNE, 9 AUGUST 2011

Application for unfair dismissal remedy.

[1] Mr Mark Notman (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) for relief from his dismissal from employment which he claims is unfair.

[2] Mr Notman was employed by Neway Transport (the Respondent). He has worked for the Respondent for 10 years. His employment was terminated following an investigation by the Respondent into an incident in which he is alleged to have urinated in front of a female cleaner. His employment was terminated on 22 March 2011. He was given four weeks pay in lieu of notice as well as any accrued entitlements.

[3] The Respondent operates a specialised transport and installation service mainly of high tech products.

[4] There are three toilets at the Respondent’s premises. There is the toilet block, the disabled toilets and the administration toilets.

[5] This matter revolves around a contested set of facts as to what occurred on Thursday 10 March 2011 when the Applicant returned to the depot after being on deliveries.

[6] Evidence for the Applicant was given by Mr Notman and Mr Bob Greer (the Transport Workers’ Union of Australia (TWU) site delegate).

[7] Evidence for the Respondent was given by Ms Melida Tellez (contract cleaner) through an interpreter, Mr Matthew Ferro (recruitment consultant) and Mr Joe Iannone (Victorian State Operations Manager).

Evidence and submissions

Applicant

[8] The Applicant says that he returned to the depot at about 5.30pm on the 10 March 2011 where he either rushed straight to the toilet 1 or went to the toilet after dropping off and/or collecting paper work from the operations window.2 He says he did not see the cleaner’s equipment when he entered the toilet. He says he saw the cleaner when he walked into the toilets as she was at the wash basins but does not know why he did not allow her time to leave.3 He does not believe that he urinated in front of the cleaner.4

[9] Mr Notman did not consider using the disabled toilet and does not believe he had access to the toilets in the administration area. He agrees that on other occasions he has used the toilet cubicle but did not think to do so on this occasion. 5

[10] Mr Notman’s evidence is that when he started urinating at the urinal he looked over his shoulder and saw the cleaner standing outside the door to the toilet block. 6 He says he did not urinate in front of the cleaner7 and agrees that such behaviour is not acceptable.

[11] Mr Notman claims no knowledge of any training on the company’s sexual harassment policy during his period of employment 8 and claims no awareness of the current Enterprise Agreement provisions on ‘Sexual and Workplace Harassment’.9 He says he has little understanding of policies arising from toolbox meetings.

[12] The Applicant agreed that an attendance list indicated he was present at a toolbox meeting on the company code of conduct and ethics 10 on 6 September 2010. The Applicant cannot remember attending a toolbox meeting on 18 October 2010 where company policy on harassment, discrimination and bullying were discussed.11

[13] Whilst not agreeing that he had urinated in front of the cleaner, Mr Notman did not agree that such behaviour would be sexual harassment but did agree that it could be offensive, humiliating or intimidating. 12 Mr Notman agreed that if urinating in front of the cleaner was sexual harassment and if he had known it was sexual harassment he would not do it.

[14] Whilst in his written statement the Applicant stated he had an unblemished record he agreed that the ‘direction to perform work’ letter of 13 October 2010 13 was a blemish on his record. He sought to distinguish this letter as a performance issue, separate to his conduct record, which he maintains is unblemished.

[15] Mr Greer’s evidence is that some of the workers had raised with him what they should do when the cleaner was in the toilet. He says that his advice was to ask the cleaner if you could use the toilet. This was done either verbally or, if the cleaner did not speak or understand English, by using a gesture of washing hands. His evidence is that this was sufficient and the cleaner would leave the toilets while they were being used.

[16] Mr Greer’s evidence is that he has never used the disabled toilets except to get some toilet paper when there was none in the toilet block. He gave evidence that there was no other toilet to which he had access. 14

[17] In a second written statement Mr Greer attached a written unsigned statement made by a Mr Shane Altham, another employee of the Respondent. In that document Mr Altham claims that on 9 June 2011 he was initially refused access to the administration toilets and then only allowed to use them but to ‘be careful that Robert does not see you’. 15 Mr Greer says that the statement was dictated to him by Mr Altham and that he wrote it down.

[18] Mr Greer was shown security footage taken at the time Mr Altham claims he was denied access to the administration toilets. Mr Greer said that the footage supported the statement of Mr Altham but also agreed that this footage did not show Mr Altham attempting to use the male toilets 16 or the disabled toilets17 or that Mr Bretag, the supervisor, refused Mr Altham access to the administration toilets.

[19] The Applicant submits that what was put to him in the investigation process is not what actually occurred and hence there was a denial of natural justice in the investigation process adopted by the Respondent. Further he says that the speed with which the termination occurred (the complaint of Ms Tellez was made on 17 March 2011, a request for explanation was issued on 18 March 2011 and termination of employment effected on 22 March 2011) makes the termination of employment unfair.

[20] The Applicant further submits, in any event, that the misconduct of which he is accused is not something so fundamental such that the employer had little choice but to terminate the employment relationship. That is, if there was misconduct it was not serious misconduct, which would warrant termination of employment.

[21] In all of the circumstances the Applicant says the termination of his employment was harsh, unjust or unreasonable.

Respondent

[22] Ms Tellez is a cleaner. She works for Get a Better Cleaners who have the contract to clean the Neway premises. Her employers are Oscar and Bettina. Ms Tellez speaks very little English. Her native language is Spanish and her evidence was given through an interpreter.

[23] On 10 March 2011 Ms Tellez arrived at Neway at 5.30pm 18 and went directly to the toilets to commence cleaning. At the time of the incident she had cleaned the cubicles and was cleaning the basins. She only had to mop the floor and she would have been finished.

[24] Ms Tellez says that she placed her cleaning equipment, being a bucket, in the doorway of the toilets. 19 While she was cleaning the basin the Applicant lifted his leg to step over the bucket and as he did so started unzipping his trousers.20 She states that she was humiliated21 and felt disrespected22 by the actions of the Applicant. Everyone else at the site asks before they come into the toilet,23 speaks to draw attention that they are there24 or uses hand gestures.25 The Applicant did not ask and was unzipping his trousers as he came in.26

[25] Once the Applicant had entered the toilets Ms Tellez went outside where she rang Oscar (her employer). 27 She then spoke to Bettina (her employer)28 who told her to let someone at the workplace know. She then spoke to Amanda,29 an employee of Neway.

[26] Ms Tellez’ evidence is that she did not see Mr Notman urinate. 30

[27] Whilst Ms Tellez could not recall the exact date of the incident she says her memory of the incident is fine as the event had a real impact on her such that she could remember it.

[28] Ms Tellez agrees that she did not do a written report on the day of the incident. However, the day after the incident she says that Bettina contacted her and asked her to come into the office and write a written complaint about the incident. Ms Tellez suggested that the following Thursday (17 March 2011) when she was due at the Neway site would be the best time. 31 When Ms Tellez attended on that day to write her written complaint she was asked if she saw the person to whom her complaint related. Ms Tellez identified the Applicant by pointing him out on the warehouse floor.32

[29] Ms Tellez continued to work on the day of the incident as she and her family needed the money. She also continued to work at Neway.

[30] Ms Tellez also stated that this was not the first time an incident like this had occurred. The same person had walked in on her about four weeks earlier. She did not report this incident as she was not as upset as he had not started unzipping his pants, 33 although she did tell her husband of the incident. Following this incident Ms Tellez’ evidence is that she has always blocked the doorway to the toilets with her equipment.34

[31] Mr Iannone is the Operations Manager for the Respondent. His evidence is that notes that relate to the video evidence were his alone, with respect to the video of 10 March 2011, 35 and were his made in conjunction with Mr Browning (the State Manager), with respect to the video of 9 June 2011.36 Beyond viewing the video and making the notes, Mr Iannone had no involvement in the investigation of the complaint made by Ms Tellez.37

[32] Mr Iannone was involved in drafting the ‘please explain’ letter given to Mr Notman on 18 March 2011.

[33] Mr Iannone’s evidence is that the decision to terminate Mr Notman’s employment was taken by Mr Browning.

[34] Mr Iannone was asked why Mr Notman was allowed to continue working past the date of the incident and if there was any concern that he may repeat the actions. 38 Mr Iannone gave evidence that it was not known that Mr Notman was the offending employee until Ms Tellez was interviewed on 17 March 2011 and identified the employee who had walked in on her. It was therefore not possible to take any action against Mr Notman until 17 March 2011 at the earliest.39

[35] Mr Iannone also gave evidence that regular toolbox meetings are used for training purposes 40

[36] There are two pieces of video footage that were exhibited during the proceedings. Mr Iannone gave evidence of events in each of these and provided notes on each.

[37] The first video is of events on the day of the incident. The evidence is that the clock on the video is four minutes fast. The times below are those shown on the video footage.

[38] The video shows Ms Tellez arriving and walking past the operations window heading towards the toilets with her cleaning equipment at 17:35:38. The truck Mr Notman was in (it can be identified by the rear side door) arrives at the depot at 17:37:36. Mr Notman arrives at the operations window at 17:42:37 where he appears to complete some paper work. At 17:44:21 Mr Notman walks in the direction of the toilet. He returns and walks towards the truck area at 17:47:57.

[39] The second video footage was taken on 30 June 2011, the day it is alleged by Mr Greer that Mr Altham had trouble accessing the administration toilets. Mr Greer was cross examined on the details of this video. Mr Iannone also produced evidence of Mr Greer’s handwriting on his daily worksheet 42 which does not accord with the handwriting of the statement Mr Greer claims he wrote down as dictated to him by Mr Altham.

[40] The Respondent submits that the conduct of the Applicant was unacceptable, that there were no mitigating circumstances, that the actions were more than a poor error of judgement and that the actions breached the ethical standards of the Respondent.

[41] The Respondent further submits that the Applicant was aware of the policies of the Respondent and refused to participate in any discussion with the Respondent about the issue. The Respondent submits that there has been an irreconcilable breakdown in the relationship between it and Mr Notman such that I should not consider reinstatement.

Findings

[42] I accept Mr Greer’s evidence with respect to the discussion he had with fellow workers on what they should do when the cleaner was in the toilet (ask to come in or gesture with their hands). This is supported by the evidence of Ms Tellez. I do not accept his evidence of the statement allegedly made by Mr Altham. There is no evidence that Mr Altham did make the statement or that it was actually written by Mr Greer. The evidence strongly suggests that the writing is not that of Mr Greer although Mr Greer was not given the opportunity to deny this. In the end Mr Altham was not called to give evidence. There is no probative value of the document he is said to have dictated to Mr Greer and the credibility of the document is highly doubtful.

[43] Further, I do not accept Mr Greer’s statement that others may have urinated while the cleaner was there. 43 This is hearsay at best and speculation at worst.

[44] Mr Notman’s evidence was inconsistent. In his first statement he said he rushed straight to the toilet on returning to the depot. In his second statement he says maybe he went to the operations window first. Under cross examination he says he cannot remember. The only matter on which Mr Notman was consistent is that he did not urinate in front of the cleaner. I am prepared to accept his evidence on this only because it coincides with the evidence of Ms Tellez. Mr Notman sought to dissemble on the matter of his record in employment. In all, little credibility can be given to his evidence. Where there is conflict between his evidence and that of Ms Tellez I prefer the evidence of Ms Tellez.

[45] Ms Tellez is a witness of credit. She was honest in what she remembered and what she did not. She was unshaken in her testimony as to what occurred in the bathroom and after that time. That she could not recall if Mr Notman lifted his left or right leg over the bucket does not diminish her credibility. She did not hide the assistance she had in putting together her complaint or her witness statement. She had nothing to gain in making the complaint. I find that she was genuinely humiliated and distressed by the Applicant’s actions.

[46] On the basis of the evidence I find that Mr Notman arrived at the depot a bit after 5.30pm. He proceeded to the operations window where he completed some paperwork and then proceeded to the toilet. When he arrived at the toilet he stepped over Ms Tellez’ equipment and, as he did so, started to unzip his trousers. Ms Tellez immediately left the toilet and rang her employer.

[47] There were other toilets available for the use of employees including the disabled toilets and the administration toilets. I find that there was no direction that these toilets could not be used. That they were not used was more from habit than direction.

[48] I find that Mr Notman had been trained in the Respondent’s harassment policy and that he had the Enterprise Agreement presented to him. The Respondent provided the training through to toolbox meetings, which was common at the workplace.

[49] Further, I find that Mr Notman did have a blemish on his record as to his performance and conduct. The distinction as to whether past matters related to conduct or performance are not, in my opinion, relevant.

[50] As to whether Mr Notman removed his shirt on one occasion in the car park I make no finding. This is a minor issue. There is no direct evidence of a complaint with respect to the incident and I do not consider it relevant to the matter before me.

What is the misconduct?

[51] The letter of termination of 22 March 2011 given to Mr Notman indicates that his employment was terminated as ‘a result of the investigation into the incident that occurred on Thursday 10th March 2011’. The request for an explanation given to Mr Notman stated that he walked into the toilets and started urinating in front of the cleaner. Mr Notman had his employment terminated because it was found he had done so. In the course of these proceedings it has become evident that this is not what occurred but rather that he walked into the toilets and started to unzip his trousers as he stepped over the cleaner’s equipment. This is the event that humiliated and caused distress to the cleaner and led to her complaint.

[52] It is established that facts concerning circumstances in existence at the time of the dismissal should be considered in deciding if the termination was harsh unjust or unreasonable, even if knowledge of those facts was acquired after the dismissal. In Australia Meat Holdings Pty Ltd v McLauchlan 44a Full Bench of the Australian Industrial Relations Commission decided that:

...the Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was “harsh, unjust or unreasonable”, provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.

Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:

• justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or

• render the dismissal harsh, unjust or unreasonable. 45(original emphasis)

[53] Given this authority it is appropriate to consider if Mr Notman was unfairly dismissed for the conduct I found actually occurred. The evidence clearly indicates that he did step over the cleaner’s equipment and while doing so started to unzip his trousers. The cleaner saw him and hurriedly left.

Consideration

[54] Neway have established policies on sexual harassment and ethical standards.

[55] The Neway policy defines sexual harassment as including ‘unwelcome sexual advances, requests for sexual favours, or other unwelcome verbal or physical contact of a sexual nature when such contact creates an offensive, hostile, and intimidating working environment...’ The consequences of engaging in such conduct include disciplinary action and, for serious breaches, termination of employment. 46

[56] Neway’s ethical standards state that ‘Neway Transport insists on the highest ethical standards in conducting its business. Doing the right thing and acting with integrity are the two driving forces behind Neway Transport’s great success story. When faced with ethical issues, employees are expected to make the right professional decision consistent with Neway Transport’s principles and standards.’ 47

[57] The current Enterprise Agreement contains a clause which deals with sexual and workplace harassment. It states in part that ‘Workplace Harassment/Bullying can be defined as repeated behaviour that offends, humiliates and intimidates...Any employee whose conduct is found to be in breach of this clause will be disciplined or their employment may be terminated.’ 48

[58] Mr Notman’s employment was terminated because he was found to have urinated in front of a cleaner. Such behaviour would generally be seen within the community to be unacceptable, particularly in circumstances where the cleaner is a woman. Had Mr Notman engaged in such conduct there would, in my opinion, be a valid reason for his dismissal.

[59] I have found, however, that Mr Notman did not urinate in front of the cleaner but rather that he unzipped his trousers as he stepped over the cleaner’s equipment to get into the toilets. I have also found that he was aware the cleaner was in the toilet. He cannot explain why he did not let the cleaner leave the toilet before doing what he did.

[60] The Applicant was asked for an explanation to the allegation that he urinated in front of the cleaner. Whilst that letter is dated 17 March 2011 it is accepted that it was handed to the Applicant on 18 March 2011. Mr Notman was requested to attend a meeting with management at 5.00pm that day to respond. An extension was granted and Mr Notman provided a written response to the allegation on 21 March 2011. It appears that Mr Notman refused a further opportunity to discuss the matter with management on 21 March 2011.

[61] The Respondent took appropriate steps in issuing a ‘please explain’ letter to Mr Notman and in considering his response. The Applicant suggests that there was undue haste by the Respondent in terminating the Applicant’s employment. The Applicant was given every opportunity to put his side of the matter to the Respondent. He was invited to a meeting on 18 March 2011, which he declined to attend. He put in a written statement the next working day. The submission for the Respondent, which was not contradicted, is that he was asked again that day to meet with the Respondent. The Applicant advised that on advice he would not attend. Mr Notman’s union contacted Mr Browning of the Respondent to advise that they should proceed to make a decision on the material before the Respondent. This advice was confirmed in a return email from Mr Browning to the union. The Respondent made a decision the next day.

[62] The Applicant cannot decline all invitations to meet with the Respondent to put his side of the events and then complain that he was denied natural justice. The Applicant was presented with the opportunity to defend himself. He declined all bar one of those offers.

[63] Mr Notman, in unzipping his trousers as he stepped over the cleaner’s equipment, showed a total disregard for another person on the worksite. This level of disregard is not acceptable. However, I do not consider that Mr Notman set out to deliberately offend or humiliate the cleaner. He indicated his regret at any offence he did cause in his reply to the request for an explanation. His contrition should not be ignored.

[64] There was a legitimate complaint made about the Applicant that the Respondent was duty bound to investigate. The Respondent cannot be faulted in responding to the complaint made by Ms Tellez. That she is the cleaner, a recent arrival in Australia and has limited command of English does not impugn her motivations in making the complaint. She raised the complaint immediately after the conduct occurred. She says there has been an incident in the past but she did not complain then because the person was not unzipping his trousers. The disrespect she felt in this instance was not there in the first incident. That she did not complain after the first incident does not mitigate the seriousness of this incident.

[65] There was a suggestion for the Applicant that Ms Tellez had made a formal complaint because she wanted to keep her job. This is a statement without foundation.

[66] The actions of Mr Notman clearly breach the Respondent’s policies and the clear intent of the Enterprise Agreement. Mr Notman failed to consider the consequences of his actions and by doing so placed the cleaner in an awful situation, which left her feeling humiliated and feeling that she must report the incident. There was no malice in her report, as she expected the Respondent to take whatever action was necessary. A breach of policy may provide a valid reason for termination of employment.

[67] Misconduct did occur. It is certainly not what was originally raised with the Applicant but he did have the opportunity to say this at the time of the inquiry. The conduct is as I have found above. The question to be answered is whether or not this conduct justified the termination of the Applicant’s employment.

Harsh, unjust or unreasonable?

[68] In all of the circumstances I consider the employer had a valid reason for the termination of the Applicant’s employment. Mr Notman was in breach of the employer’s policies. They are policies in which he had been trained. The policies that the Applicant breached are designed to ensure that all people on site at Neway are treated with respect and that the highest standards are maintained. Mr Notman showed a level of disregard for Ms Tellez that is not acceptable. His conduct provides a valid reason for his dismissal.

[69] The Applicant was advised that his employment had been terminated as a result of the investigation into the incident of 10 March 2011.

[70] Mr Notman was given an opportunity to respond to the allegations against him. He was aware that the matter could lead to termination of his employment. It is surprising that he chose not to attend a meeting with management to further put his case.

[71] Mr Notman was not denied access to a support person.

[72] The Respondent said that it employed 45 people at the time of the termination of Mr Notman’s employment. I understand this is in its Victorian operation. I am not aware of the total size of the company or their access to dedicated human resource specialists within the company. However, I do find that Mr Notman was afforded procedural fairness in this process.

[73] If Mr Notman had been found to have urinated in front of the cleaner I would have had no doubt that the termination of his employment was not harsh, unjust or unreasonable. But this is not what he did. At the time of the incident there was a lack of clear signage that the toilets were being cleaned although it seems that staff recognised that if the cleaner’s equipment was there the toilets were being cleaned and they should indicate when they were about to enter.

[74] Mr Notman was an employee of long standing although recently he appears to have had some problems carrying out his work as required. There is however only one prior issue raised with him relating to his unwillingness to do some particular work.

[75] I cannot ignore the actions of Mr Notman and his disregard for the cleaner at the time. I cannot disregard the inconsistency in Mr Notman’s evidence. I also cannot ignore Mr Notman’s contrition expressed at the time he offered his explanation for the event.

[76] In all of the circumstances I find that the termination of Mr Notman’s employment was harsh, unjust or unreasonable. In particular it was harsh as the penalty, termination of employment, is disproportionate to the misconduct I have found occurred.

[77] This is not to diminish the seriousness of the Applicant’s conduct or the affect of that conduct on Ms Tellez. Given his long period of service and relatively clean record I find the penalty extreme.

[78] The application is granted.

Remedy

[79] Having found that the Applicant was unfairly dismissed I must now consider the appropriate remedy. Sections 390-392 of the Act establish those matters that must be considered in determining remedy.

[80] The Applicant seeks reinstatement or, in the alternative if reinstatement is not considered appropriate, 26 weeks compensation. The Respondent argues that there has been a breakdown of trust and confidence in the Applicant such that he should not be reinstated.

[81] In this matter I do not consider reinstatement appropriate. This reflects the gravity of the conduct of the Applicant and the seriousness with which I view his conduct. It also reflects my view as to the credibility of the Applicant given that he altered his evidence to suit the circumstances that confronted him.

[82] I shall therefore consider compensation.

[83] The Applicant had been employed by Neway for about 10 years. But for recent issues with respect to his work performance I would have considered he would have remained with the Respondent for a number of years. Given the recent performance issues and their indication of deterioration in the working relationship I consider that he would have remained with the employer for a further one year.

[84] I do not consider that the order I make below will affect the viability of the Respondent’s enterprise.

[85] The Applicant did receive four weeks pay on termination of his employment.

[86] The Applicant claims he was earning $775 gross per week at the time of the termination of his employment. The Respondent says this is incorrect and he was earning $684 gross at the time of the termination of his employment. No pay slips were provided. I have considered the Enterprise Agreement that covered the Applicant. His gross wage cannot have been more than $684 per week at the time of his termination. This is the maximum rate payable to a permanent employee under the Agreement. I therefore find that, had the employee not had his employment terminated he would have earned $35,560 (684 x 52).

[87] Mr Notman’s evidence is that for the first three weeks following the termination of his employment he was at home and that, following that, he has had regular work as a causal driver earning ‘around $800 per week.’ He said he had applied for three jobs and not received a response to those applications. Mr Notman has earned $9600 and received $2,736 in lieu of notice of the termination of his employment.

[88] There was no evidence to suggest that Mr Notman will not continue in his current position. I therefore assess that he is likely to earn $29,600 from the time of making the order, a greater income in his current position than he earned at Neway.

[89] Even if I discounted Mr Notman’s earnings in his current position for the casual loading he is now receiving (and there is no reason why I should do this) his lost earning from the date of dismissal until the hearing would be $440 and future loss would be approximately $1480. The figure of $1480 should be reduced by 20% for contingencies leaving $1184.

[90] Mr Notman’s lost earnings from the date of his dismissal and the making of the order is $440 gross, together with the remainder of his lost remuneration adjusted for contingencies of $1184 results in a provisions compensation of $1624.

[91] Mr Notman has had over 10 years employment with Neway. It does not provide a basis to reduce the amount further.

[92] Mr Notman gave minimal evidence of attempts to mitigate his loss. He applied for three positions and received no response. That was the totality of his evidence on mitigation. For the reasons given above I will not deduct any amount for apparent lack of effort to mitigate his loss.

[93] However, I will deduct the remaining amount for misconduct. Mr Notman’s actions are the reason his employment was terminated. He humiliated and caused distress to Ms Tellez. When given the opportunity to meet with the employer he twice refused to do so. He then claimed he had been denied procedural fairness. His evidence of the events changed three times. Mr Notman’s own misconduct and actions led him to the position he is in today. They cannot be ignored.

[94] No order for compensation will issue.

COMMISSIONER

Appearances:

S. Baarini for the Applicant.

R. Browning for the Respondent.

Hearing details:

2011.

Melbourne:

6 & 14 July.

 1   Exhibit A1.

 2   Exhibit A2, paragraph 2.

 3   Transcript PN103-7.

 4   Transcript PN109.

 5   Transcript PN117, 119.

 6   Transcript PN210-11.

 7   Transcript PN208.

 8   Transcript PN140.

 9   Neway Transport Victoria Enterprise Agreement 2009 (AE877504). SeeTranscript PN173.

 10   Transcript PN196. See also Exhibit R2.

 11   Transcript PN221. See also Exhibit R3.

 12   Transcript PN 177-80.

 13   Exhibit R4.

 14   Exhibit A3, paragraph 7.

 15   Exhibit A4, attachment 1.

 16   Transcript PN809.

 17   Transcript PN810.

 18   See Exhibit R9 and Exhibit R5, paragraph 2.

 19   Transcript PN891-2.

 20   Transcript PN890.

 21   Transcript PN920-1.

 22   Transcript PN1241-2.

 23   Transcript PN1275.

 24   Transcript PN1283.

 25   Transcript PN1283.

 26   Transcript PN1246.

 27   Transcript PN970.

 28   Transcript PN973-4.

 29   Transcript PN984.

 30   Transcript PN1270-1.

 31   Transcript PN1286-95.

 32   Transcript PN1286-05.

 33   Transcript PN1113.

 34   Transcript PN1323-32.

 35   Exhibit R9, transcript PN1765.

 36   Exhibit R11, transcript PN1772.

 37   Transcript PN1819.

 38   Transcript PN1909-10.

 39   Transcript PN2141-20.