Matthew Robbins v Oscars of Essendon Pty Ltd T/A Oscars of Essendon

[2013] FWC 8411

[2013] FWC 8411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Robbins
v
Oscars of Essendon Pty Ltd T/A Oscars of Essendon
(U2013/7410)

COMMISSIONER BISSETT MELBOURNE, 30 OCTOBER 2013

Application for relief from unfair dismissal.

Robbins v Oscars of Essendon

[1] Mr Matthew Robbins (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Robbins was employed by Oscars of Essendon (the restaurant or the Respondent) as a bar manager.

[2] Mr Robbins commenced working for the restaurant on 6 August 2012. He was employed on a Temporary Work (Skilled) visa (a 457 visa). His employment was terminated on 21 February 2013.

[3] The Applicant represented himself. The Respondent sought permission to be represented by Mr Woolfe. On the basis of the submissions put to me I was satisfied that it would be unfair not to allow representation as the Respondent could not represent itself effectively by its own staff (s.596(2)(b) of the Act).

[4] Ms Courtney Smith, Mr Christopher Caddy, Ms Emily Flood, Mr Roy Smart and the Applicant gave evidence for the Applicant.

[5] Mr Peter Sampson, Mr David Liszt, Ms Kristine Daw and Mr Nick Katsis gave evidence for the restaurant.

Reason for dismissal

[6] The Applicant’s employment was terminated in a meeting on 21 February 2013. The reasons for his dismissal were given to him at the meeting. A letter detailing those reasons dated 21 February 2013 was received by the Applicant a few days later. 1 That letter said:

On 17 January [sic], you attended the annual performance review. In this review a numbers of issues were brought to your attention, and since that date, you have not improved on these issues and some of them have not been addressed. These issues include:

• Not completing the Bar Closing Checklist or Managers Closing Checklist since the 1st February, 2013. You have been repeatedly reminded of this on a regular basis by the General Manager at least twice weekly both verbally, via email and in the communications book. Yet repeatedly equipment and/or lights have been left on, air-conditioning units have been left on and the general tidiness of both restaurant and the bar have been left in a poor condition. These issues are Occupational Health and Safety issues not to mention the financial cost to the business.



• Time-sheets are not been signed off each day and are not correctly completed by staff as required. You have been reminded of this both verbally, in the communications book and via email by the Director, General Manager and payroll officer about the importance of accuracy and that fact they are a legal document.



• Complaints have been received by customers regarding your complacent attitude, lack of care and poor service standards. Your attitude and way in which you speak to staff and customers was specifically discussed in your review, yet is still an ongoing problem.



• Ordering of stock still remains inconsistent, with stock of various items running low or not ordered on a weekly basis. This again was reiterated in your review, and additional Back of House (BOH) time given and ample time has been allowed for you to complete these tasks.

Background

[7] Oscars of Essendon is a restaurant owned by Mr John Sampson. It opened in August 2012. Mr Sampson does not work at the restaurant but operates a business located next-door to the restaurant.

[8] The Applicant was approached Mr Liszt in mid-2012 to see if he wanted to work at the restaurant as a bar tender. The Applicant at the time was on a working holiday visa. In August 2012 arrangements were made to have the Applicant put on a 457 visa as the bar manager.

[9] Mr Liszt managed the restaurant on a day to day basis. He reported directly to Mr Sampson. The Applicant reported to Mr Liszt. The restaurant also employed a chef, kitchen staff and front of house staff.

[10] In early August 2012 the Applicant and other staff attended a training day with their new employer.

[11] On 8 August 2012 the restaurant opened for business. The Applicant worked Wednesday to Sunday. Mr Liszt worked Tuesday to Saturday. The restaurant was closed on Mondays.

[12] In October 2012 three monthly reviews of staff performance were conducted. Due to time constraints and the busy lead up to Christmas the Applicant’s three month review was deferred until 2013.

[13] On 14 January 2013 the Applicant met with Mr Sampson, Mr Liszt and Ms Daw (a consultant) to complete his three month review. This was done in the form of a self assessment completed by the Applicant which was then reviewed at the meeting.

[14] On 14 February 2013 the Applicant met with Mr Sampson to raise concerns he had with Mr Liszt not giving him time to do the paperwork associated with his position as bar manager and not giving him time to take his breaks during his shifts.

[15] On 21 February 2013 the Applicant met with Mr Liszt and Mr Sampson and was advised that his employment was being terminated.

[16] On or about 24 February 2013 the Applicant received a letter of termination in the mail.

Evidence

[17] Extensive evidence has been put before me by the parties to this matter. To the extent it is relevant I have had regard to that evidence. There is much of the evidence that is not relevant and I have not had any regard to it. This includes the health of one of the witnesses and the faithfulness or otherwise of another.

[18] Each of the three key witnesses (the Applicant, Mr Sampson and Mr Liszt) presents evidence of the same events, each with a different emphasis designed to encourage me to treat one version of events with more credit than the others. Such an approach to giving evidence in unfair dismissal matters before the Commission is not unheard of. In this case it did little to enhance the standing of the reliability or credibility of these witnesses.

[19] As can be seen in the excerpt from the letter of termination, the Applicant’s employment was terminated for reasons associated with poor performance. The matters for which the Applicant was dismissed are not conduct issues. They go to how the Applicant did his job: whether he carried out his duties effectively, efficiently and with diligence. No issues of misconduct were raised with the Applicant during his employment and none were raised in proceedings before me.

[20] The Applicant’s uncontested evidence is that at the training given to employees in August 2012, when they commenced their employment, employees were given an employee handbook that set out a range of employment matters. That employee handbook contained a section on dealing with misconduct and poor performance. 2 While the section of the handbook is titled ‘disciplinary action’ it establishes the process for dealing with performance and misconduct matters. Mr Liszt, in his evidence, confirms that this was the process for dealing with performance issues and that he had written the handbook.

[21] The employee handbook provides the following for dealing with poor performance:

In the event of a performance / behaviour issue:

1. An informal discussion between you and your manager will occur to:

• Identify the issues



• Reach a decision on the required action

2. Failing an improvement in your performance / behaviour a formal meeting with you and your manager will be conducted to:

• Consider the facts



• Provide you with an opportunity to respond to the allegations



• Agree on an appropriate action plan

3. If you continue to fail to improve your performance / behaviour, another formal disciplinary meeting between you, your manager and a witness of your choice, will be conducted to:

• Consider the fact



• Provide you with an opportunity to respond to the allegations



• Issue you with your FIRST WRITTEN WARNING if necessary



• Agree on an appropriate action plan



• Schedule a follow-up meeting

4. Failing improvement in your performance / behaviour after the first written warning you will be required to attend another formal disciplinary meeting where:

• The same procedure as the first written warning will be adopted



• You will be issued with your SECOND WRITTEN WARNING



• You will be advised that if improvement to the required standard does not occur, it MAY lead to termination of your employment

5. Again, if no improvement is shown, you will be advised of another formal disciplinary meeting where:

• The same procedure as for the first written warning will be adopted



• You will be issued with your THIRD AND FINAL WARNING



• You will be advised that if improvement to requirement standard does not occur, it WILL lead to termination of your employment [sic]

6. If a further incident of unacceptable conduct and/or performance occurs your employment will be terminated. Please be aware that in cases of serious misconduct, the above procedure will not be followed and you will be instantly dismissed. You have the right to appeal against a disciplinary action at any stage of the disciplinary procedure. It would be appropriate to follow the Grievance Procedure if you believe the disciplinary process has been unfair in some way.

[22] Given Mr Liszt’s confirmation of the veracity of the employee handbook and the clause, and his intimate knowledge of it because he was the author, it is reasonable that employee’s would expect he would follow this process in dealing with poor performance.

[23] On 14 January 2013 the Applicant had his three month performance review (although it was five months since he had commenced employment). The Applicant says that, in preparation for the review, he undertook a self assessment whereby he rated himself against some criteria on a scale of 1 to 5. He says that in the review meeting management indicated a higher rating on some of the criteria than he had given himself. The Applicant’s initial evidence is that no performance issues were raised with him in that meeting. In cross examination however he agreed that issues associated with the lights being turned off, completion of timesheets and checking off the bar managers’ checklist was raised. He says he wrote the bar managers’ checklist of what needed to be done at the end of the night as part of closing up the premises so did not need to complete it because he knew what was required. He says it was written for new staff who did not know what needed to be done when closing at the end of the night.

[24] Ms Daw who was present at this meeting says that some of the ratings given by management were lower and some higher than the Applicant’s self assessment. Her evidence is that she, Mr Sampson and Mr Liszt discussed with the Applicant his time management and his communication skills. She says that the Applicant agreed that he could improve his communication skills and other areas of performance that were raised with him

[25] Mr Sampson says management rated the Applicant lower than his self assessment on a number of matters. He says that management outlined to the Applicant a number of areas where they were not happy with his performance including arriving to work late and his attitude to customers. He says that the Applicant seemed a bit taken aback by the matters raised but just shrugged his shoulders.

[26] No evidence of the Applicant’s self assessment or the Respondent’s adjustments was provided. Overall I prefer the evidence of Ms Daw as to what happened at this meeting. She gave her evidence clearly and dispassionately. She did not dissemble or embellish the evidence she gave. Both the Applicant and Mr Sampson had self-serving reasons for giving the evidence they did. I do not consider either of them to have been totally truthful. The differences in their evidence cannot be put down to different interpretations of the same event. Their evidence on the ratings, for example, is totally opposite. Mr Sampson says management marked the Applicant down while the Applicant says he was marked up on his self assessment. Mr Sampson says the Applicant just shrugged his shoulders when performance matters were raised with him while the Applicant insisted at first that no matters relating to performance were raised. Both of them cannot be right.

[27] Having considered the evidence of everyone who was at the meeting on 14 January 2013 I am satisfied that management did not agree with the Applicant’s self assessment, rating him higher on some matters and lower on others, and that some performance matters were raised with the him including completing timesheets, lights being left on, the checklist not being completed and communication skills.

[28] Nothing was put in writing to the Applicant following this meeting.

[29] Mr Liszt’s evidence is that on 1 and 8 February 2012 he held meetings with the Applicant where he raised with him concerns over his failure to complete the checklist each night, failure to complete timesheets, customer complaints and the need to improve his general attitude. Mr Liszt says he told the Applicant that if things did not improve his job was in jeopardy.

[30] Mr Liszt gave evidence of two written complaints from customers with respect to the Applicant dated 18 and 20 February 2013. No direct evidence of the complaints was given and the Applicant disputes the substance of them. 3

[31] In his written evidence Mr Liszt detailed a number of occasions on which he says he talked to the Applicant about the checklist, timesheets, lights and air conditioning being left on after close at the end of the evening shift and other performance matters. 4

[32] Mr Sampson’s evidence is that Mr Liszt, who reported to him, had advised him on a number of occasions of discussions he had with the Applicant in which the Applicant was told his performance needed to improve or his employment would be terminated. He says that Mr Liszt had counselled the Applicant on six occasions about his performance but that the performance did not improve. He agreed that while there were two written complaints from customers about the Applicant in February there were none prior to 14 January 2013 when the three monthly performance meeting was held with the Applicant.

[33] The Applicant’s evidence is that the claimed meetings with Mr Liszt on 1 and 8 February 2013 never occurred. Further, he disputes the occurrence of most of the discussions Mr Liszt says in his evidence took place. The Applicant agrees that a discussion regarding a customer who claimed food poisoning did occur around 7 February 2013 although disputes Mr Liszt’s evidence that the Applicant sent an email to the kitchen about the matter. The Applicant agrees that he did have a conversation, although it was with Mr Sampson and not Mr Liszt, with respect to the sprinklers around 18 January 2013.

[34] I have considered carefully the evidence of Mr Liszt, Mr Sampson and the Applicant with respect to the meetings and discussions that Mr Liszt says occurred between 14 January and 21 February 2013. I accept Mr Sampson’s evidence that Mr Liszt says he had a number of discussions with the Applicant about the Applicant’s performance. This, however, is not evidence that the discussions did occur or, if they did, how these discussions took place. Mr Sampson was not present at the discussions and is doing no more the relaying what Mr Liszt said to him.

[35] As I have already said I have reservations about the reliability of much of the evidence given by the Applicant and Mr Liszt.

[36] There are inconsistencies between the oral evidence of Mr Liszt and factual evidence produced. For example Mr Liszt says in his evidence that on 7 February 2013 the Applicant sent an email to the kitchen about the food poisoning incident which upset the chef. I requested, and had produced, a copy of the email said to have caused this disquiet. The email was not sent by the Applicant to the kitchen but was rather an account of matters relevant to the food poisoning incident sent by the Applicant to Mr Liszt. Mr Liszt then sent the email to the kitchen.

[37] The Applicant was firm in his evidence that discussions in late January and February with Mr Liszt did not occur. When he was pressed as to his evidence of what occurred at the meeting on 14 January 2013 however his evidence changed completely. It raises doubts about the accuracy of his recall of other events. When faced with performance issues under cross examination he claimed that Mr Liszt was also at fault on matters like turning out lights etc. The Applicant refused to accept that there could be any grounds for complaint about his work.

[38] The Applicant was also firm in his views of what he should or should not be required to do. He believed he did not have to complete the end of night checklist and did not believe he should be required to fill out time sheets as he was management.

Unfair dismissal

[39] I find that the Applicant is protected from unfair dismissal. His dismissal was not a redundancy and the Small Business Fair Dismissal Code is not relevant to the matter.

[40] In determining if the Applicant has been unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable. In making such a decision it is necessary to consider each of those matters set out in s.387(a)-(h) of the Act.

Section 387(a) A valid reason related to capacity or conduct

[41] The letter of termination given to the Applicant clearly indicates that his employment was terminated for reasons related to his capacity – that is his performance in his job.

[42] Having assessed the evidence with respect to the Applicant’s performance I am satisfied, on balance, that on a number of occasions after the meeting of 14 January 2013 Mr Liszt raised with the Applicant matters to do with his performance. Matters included the lights not being turned off at the end of the night, time sheets not being completed by the Applicant and a failure by the Applicant to complete the checklist. I do not find however that these issues were raised in a formal way such that the Applicant understood or had conveyed to him the gravity of the problems or the consequences of a failure to improve.

[43] I am not satisfied that there were grounds for customers to complain about the Applicant. Whilst I accept that two written complaints were made about the Applicant they do not indicate the truth of those complaints, particularly in light of the Applicant’s contest as to the accuracy of them. The Respondent chose not to call either of the complainants or any others who may have witnessed the incidents that led to the complaints. Clearly the relationship with customers is critical in a restaurant. However there is no direct evidence that the Applicant’s behaviour caused the complaints or that the complaints were ever brought to his attention.

[44] I am satisfied that work performance issues were raised with the Applicant. I am not convinced that those issues, alone, would provide a valid reason for the dismissal of the Applicant. These were seemingly minor issues (although I do not dismiss their importance in terms of costs of some of these to Mr Sampson as the restaurant owner). The lack of substantial evidence leads me to conclude these performance issues do not provide a valid reason for dismissal.

[45] Had evidence been brought of a pattern of poor attention to customers it might have provided a valid reason for the Applicant’s dismissal. In this case however I have two seemingly minor complaints – both of which are disputed by the Applicant – and assertions from Mr Sampson of other customer complaints which are not detailed and which were not brought to the Applicant’s attention.

[46] In these circumstances I find that there is no valid reason for the dismissal of the Applicant.

Section 387(b) Whether the Applicant was notified of the reason

[47] On 21 February 2013 the Applicant was called to a meeting and advised that his employment had been terminated. He received a letter three days later detailing the reasons for the termination of his employment. In this respect the Applicant was advised of the reasons for his dismissal but not until the time it was affected.

Section 387(c) An opportunity to respond

[48] There is no evidence that the Applicant was given an opportunity to respond to the reasons for his dismissal prior to the decision being taken to terminate his employment. He was called into the meeting on 21 February 2013, told the reasons for his dismissal and the meeting ended. There is no evidence to the contrary.

[49] I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision being taken to dismiss him.

Section 387(d) Unreasonable refusal to allow a support person to be present

[50] Given the Applicant was not aware of the purpose of the meeting of 21 February 2013 it is difficult to know how he could have sought to bring a support person to the meeting.

[51] Whilst there is no evidence that the Respondent unreasonably refused to allow the Applicant to have a support person, or refused to adjourn the meeting to allow him to get a support person, failing to forewarn him of the purpose of the meeting may be seen as mechanism of circumventing his right to bring a support person with him, should he chose to do so.

[52] I find this a matter of little weight in my determination of the question of whether the dismissal was harsh, unjust or unreasonable.

Section 387(e) Whether he had been warned about that unsatisfactory performance before the dismissal

[53] The purpose of a warning of unsatisfactory performance is to provide an employee with an opportunity to improve their performance in the knowledge that a failure to do so puts their employment at risk. This is the principle which underpins the procedure in the employee handbook. It was not done in this case.

[54] Mr Liszt says he told the Applicant about his unsatisfactory performance and warned him that if it did not improve he would be dismissed.

[55] Mr Sampson says Mr Liszt told him on a number of occasions that he had such a discussion with the Applicant.

[56] The Applicant says he was never told of his unsatisfactory performance or that he would be dismissed if his performance did not improve.

[57] The Respondent’s employee handbook sets out a process to be used in managing poor performance. That process, set out above, is designed to ensure that an employee is properly advised of any unsatisfactory performance, that warnings are in writing and followed up, and an employee is aware that a failure to improve may result in termination of employment.

[58] The one fact that is clear in this case is that the performance management process in the employee handbook was not followed.

[59] Mr Liszt, in his evidence, suggests that he did not need to follow the process in the employee handbook because the Applicant had been dismissed for serious misconduct and he was not required to give any warnings in situations of serious misconduct. I consider that Mr Liszt has attempted to re-characterise the reason for termination as serious misconduct for no reason but to justify his actions in not following the procedure he wrote in the employee handbook.

[60] It is clear, and I have found, that the Applicant was dismissed for performance related matters. Even if his refusal to fill in the checklist is characterised as a failure to follow a reasonable and lawful direction it can hardly be characterised as gross misconduct such that the Applicant was not entitled to any warning that a failure to follow the direction would result in his dismissal.

[61] I find the Applicant was not warned of his unsatisfactory performance such that he had an opportunity to improve that performance or that he was aware of the consequences of non-improvement in his performance. He clearly was not warned with respect to the two written complaints which arrived one and three days prior to his dismissal.

[62] I find that the Applicant was not warned.

Section 387(f) & (g) - The size of the employer’s undertaking and access to human resources expertise

[63] The Respondent is a small business and, at the time of the dismissal, employed 15 employees. Mr Samson runs other, unrelated, businesses but none appear to be large.

[64] Ms Daw is a contractor who provides human resource services to the restaurant, particularly in the area of performance reviews. Ms Daw gave evidence that she had a number of discussions with Mr Liszt and Mr Sampson in the lead up to the dismissal of the Applicant.

[65] I accept that the restaurant is small undertaking and had some, but limited access to human resources management expertise. I do note that the Respondent did have detailed employment conditions and policies which were reflected in the employee handbook.

[66] I have taken these matters into account in coming to my conclusion.

Section 387(h) Any other matters

[67] The Applicant was on a 457 visa when working for the Respondent. The loss of his sponsorship has substantial consequences for the Applicant. However, it is not claimed that the Applicant was treated any differently to any other employee because he was on the 457 visa. I am satisfied that the Applicant would have been treated no differently had he been a permanent resident.

Conclusion

[68] A dismissal may be:

• unjust because the employee was not guilty of the alleged misconduct



• unreasonable because the evidence or material before the employer did not support the conclusion



• harsh on the employee due to the economic and personal consequences resulting from being dismissed, or



• harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).⁵

[69] In this case I find that the dismissal was unjust because the Applicant’s performance was not shown to be of such a standard that dismissal from employment was a reasonable result. In this respect it was also unreasonable. Furthermore it was unreasonable because the Respondent had a well detailed policy for managing poor performance which it chose to ignore.

[70] The dismissal was also harsh because of the effect of the dismissal on the Applicant’s circumstances. I have found that there are no grounds to find the Applicant was treated any differently because he was on a 457 visa. However it is because he is on a 457 visa that the consequences of the dismissal are so harsh. I am satisfied that the dismissal contributed to the breakdown of the Applicant’s relationship and has left him in a position where he has limited or no income.

[71] In all of the circumstances I am satisfied that the dismissal was harsh, unjust and unreasonable.

Conclusion as to unfair dismissal

[72] Based on my findings above I find that the Applicant was unfairly dismissed.

Remedy

[73] The Applicant seeks compensation. In all of the circumstances I am satisfied that reinstatement is not appropriate.

[74] In determining remedy the Act sets out the matters that must be considered at s.392(a)-(g). I have taken all of those matters into account in reaching my conclusion.

[75] The Applicant was employed with the Respondent for seven months. There were issues between Mr Liszt and the Applicant with respect to things Mr Liszt believed the Applicant should be doing that he was not doing. There was an obvious tension between the Applicant and Mr Liszt. Mr Sampson, as was clear from his evidence in these proceedings, had faith in Mr Liszt and his day to day management of the restaurant. Mr Sampson’s faith in Mr Liszt would have the likely consequence of him, in all likelihood, accepting Mr Liszt’s view of the further employment of the Applicant.

[76] The evidence from Mr Sampson is that the restaurant is not profitable. He had reduced staffing levels substantially since the time the Applicant was dismissed such that now he had only two permanent staff with the remainder being casual employees.

[77] It is evident that there was a serious deterioration in the relationship between the Applicant and Mr Liszt to the extent that the Applicant approached Mr Sampson to complain of Mr Liszt.

[78] For all of these reasons I consider that the Applicant would have remained in employment with the Respondent for a further five months.

[79] Had the Applicant remained with the Respondent for a further five months he would have earned $5000 in that period. 6

[80] The Applicant says that he has applied for a number of jobs. He says he has not been successful because he has been honest in telling prospective employers he has an unfair dismissal case on foot and that if he loses the case he may have to leave the country.

[81] The Applicant’s evidence is that he was despondent and anxious following his dismissal. He and his partner separated. The Applicant’s housemate, Ms Flood, gave evidence that she suffers from diagnosed depression and anxiety and is aware of its symptoms. She says she recognised these symptoms in the Applicant who went from being a happy person to one who spent less time socialising, was disinterested in friends and put weight on following his dismissal. She concluded from this that he was suffering from depression and anxiety. Mr Smart, another housemate of the Applicant said the Applicant was apathetic and stressed following the dismissal. There is, however, no evidence that suggests the Applicant could not work. I reject the evidence of his housemates as to his state of mind. Whilst I accept their concern for their friend there is no medical basis on which to conclude he could not work. It should be noted that if there was some medical reason this may result in some reduction in any amount awarded for contingencies.

[82] Whilst I acknowledge that the loss of a job is a stressful and harsh event that may adversely affect a person’s outlook and approach to seeking new employment, at the time of hearing this application the Applicant had been out of work for over seven months. The failure to take positive steps to secure some income in that period is unsatisfactory. If the Applicant is unable to work for medical or visa reasons no evidence of this was put before me.

[83] No evidence has been given to me of any restrictions on the Applicant working such that I should take those matters into account in determining if he has sought to mitigate his losses. In all of the circumstances I am not satisfied that the Applicant has taken reasonable steps to mitigate his losses. I have deducted 20% from his lost earnings for this failure.

[84] The Applicant has not worked since his dismissal. I reject the evidence of Mr Sampson with respect to what he says was employment by the Applicant at a bar in Melbourne. If the Respondent considered the Applicant was working he could have sought to subpoena pay records or the owner/manager of the bar. The Respondent did neither. Cloak and dagger attempts to catch the Applicant out are not satisfactory and do not provide reliable evidence.

[85] No amount should be deducted for contingencies. The five month period I consider the Applicant would have remained in employment at the restaurant has well passed.

[86] I therefore determine that the Applicant should be compensated the amount of $4,000 plus 9% superannuation. The $4,000 should be taxed according to law and the additional superannuation amount paid into the Applicant’s superannuation fund. The amount shall be required to be paid within 21 days of the making of the order.

[87] I am satisfied that the making of this order shall not adversely affect the viability of the Respondent business.

[88]
An order to this effect will issue with this decision.

COMMISSIONER

Appearances:

M. Robbins on behalf of himself, the Applicant.

A. Woolfe for the Respondent.

Hearing details:

2013.

Melbourne.

10-11 October.

 1   Exhibit A5, attachment I.

 2   Exhibit A5, attachment A, page 15.

 3   Exhibit R2, attachment 6.

 4   Exhibit R3.

5 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 6   The Applicant’s contract of employment (attached to exhibit R2) shows an annual salary of $52,000.

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