Mr Jay Bonaventura v Machinetek Engineering Pty Ltd T/A Diversified Mining Services/Machinetek
[2013] FWC 6157
•10 OCTOBER 2013
[2013] FWC 6157
The attached document replaces the document previously issued with the above code on 10 October 2013.
In the sixth sentence of paragraph 62 the word ‘the’ was removed.
In the third sentence of paragraph 76 the word ‘the’ was inserted.
In the third sentence of paragraph 97 the word ‘about’ was inserted.
In the fourth sentence of paragraph 114 the word ‘mutual’ was changed to ‘neutral’.
Camilla Moses
Associate to Commissioner Simpson
Dated 11 October 2013
[2013] FWC 6157 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jay Bonaventura
V
Machinetek Engineering Pty Ltd T/A Diversified Mining Services/Machinetek
(U2013/3544)COMMISSIONER SIMPSON | BRISBANE, 10 OCTOBER 2013 |
Application for relief from unfair dismissal - no valid reason - procedural flaws - dismissal unfair - compensation sought - calculation of likely loss of remuneration impacted by business downturn - lower compensation ordered.
[1] An application was filed on 13 March 2013 by Jay Bonaventura (the Applicant) for unfair dismissal remedy against Machinetek Engineering Pty Ltd trading as Diversified Mining Services/Machinetek (the Respondent). The evidence was the Respondent employed approximately 400 employees. 1
[2] The Applicant was employed from 7 March 2011 until 7 March 2013 as a Lineborer by the Respondent. Attempts at resolving the matter through conciliation were unsuccessful and the matter was listed for hearing at the Mackay Court Housing for Thursday 29 August 2013.
[3] The Applicant and his wife, Karen Bonaventura, appeared as witnesses in the Applicant’s case and the Respondent called two witnesses, Steve Wright, the General Manager who founded the Respondent 11 years ago, and Kylie Manning the Recruitment Advisor for Diversified Mining.
[4] Mrs Bonaventura conducted the case for her husband and the Respondent was represented by Ben Cooper of Livingstones. At the commencement of the hearing it was put to the parties that the facts in issue related to whether the Applicant was in the process of setting up a business in competition with the Respondent, and also whether the Applicant was dishonest in his response to questions put to him by representatives of the Respondent in regard to those matters at meetings held on 6 and 7 March. The parties agreed they were the key issues with the exception from the Applicant’s perspective that a further issue was a claimed change in the treatment of the Applicant after he sent an email to Mr Wright and a connection between that email and later treatment of the Applicant. 2
[5] Ms Bonaventura said since reading the statements of Mr Wright and Ms Manning she said a lot of what is in their statements is inaccurate including the questions asked, and people in attendance. 3 4
[6] Ms Manning said that Mr Wright also advised her that he had approached the Applicant earlier in the year about rumours that were circulating about him setting up a business in competition with the Respondent and that the Applicant denied that he was intending to so this. 5
[7] Ms Manning said she spoke to Mick Cullity, Group Human Resource Manager, and explained the concerns. Ms Manning said they agreed that they needed to investigate further and to put the allegation to the Applicant. 6
5 MARCH 2013
[8] The Applicant said on Tuesday 5 March 2013 while at a job in Goonyella he called Morne Hildebrand, his immediate supervisor, to ask if he should stay in Goonyella or come into town. The Applicant claimed Mr Hildebrand said a job at Andersons needed doing and advised him to come home. The Applicant said he asked Mr Hildebrand if he wanted him to start at 3pm, which was his usual starting time and Mr Hildebrand said no, to start at 4pm.
[9] Mr Wright said that on that day the Respondent received an unsolicited quote from Austwide Tooling for tools including a Lineboring drive and feed, and bars etc. 7 Mr Wright said he contacted Austwide Tooling to find out who had organised the quote as it was just directed to the office of the Respondent. Mr Wright claimed the person spoken to could not remember who had sought the quote so had just sent it to the business email address instead.8
6 MARCH 2013
[10] The Applicant says that on 6 March 2013 he was nearly at Andersons and called Mr Hildebrand to check if he was to go straight there. The Applicant says Mr Hildebrand said to him no, to come to the office. 9 Ms Manning said the Applicant attended the office at approximately 3.30pm and present were the Applicant, Mr Hildebrand, Mr Wright and herself. 10
[11] The Applicant said he walked into the room and he was asked if he wanted to have someone present. The Applicant claims he said “for what” and they said it was his right to have someone present. The Applicant said that as he was unaware anything was wrong and he wasn’t worried about having a witness, he said no. This is consistent with the evidence of Mr Wright and Ms Manning who said the Applicant did not want a support person. 11 12
[12] The Applicant says he was then told this was a very serious matter. He said he asked what the matter was, and was told “we’ll get into it”. The Applicant said that he was told to sit and that he going to be asked some questions so they could judge his response.
[13] The Applicant said he was asked if he was starting his own business, and he said he replied no. The evidence of Mr Wright was that Ms Manning asked the Applicant if he was thinking of starting his own business. 13 The Applicant denied that was the question, and that the question was if he was starting his own business.14
[14] Ms Manning claimed she said that the meeting had been called to discuss information that they had received about the Applicant going into business on his own. Ms Manning claimed she said to the Applicant that they had received this information from a number of sources, and on more than one occasion. Ms Manning said she then asked the Applicant whether this was true or not and the Applicant said he was not going into business on his own. 15
[15] Mr Wright says that he reminded the Applicant that they had spoken at the beginning of the year about rumours they had heard about starting a business and since that time had heard more things. 16
[16] The Applicant claimed he was told that they’d said they had heard it from about 6 people, officially four, that he was starting his own business. Ms Manning claimed she then said she wanted to ask him some more specific questions and if he could please answer them.
Telephone call of 1 March 2013
[17] Mr Wright said that on the afternoon of 1 March 2013 he was in his office talking to a machinery dealer, Greg Townsend who had supplied equipment to the Respondent for about 11 years when Mr Townsend took a phone call in his office. Mr Wright said he only heard Mr Townsend’s end of the conversation. He said Mr Townsend said he had bought a lineborer second hand at an auction the previous day and that Mr Townsend spoke to the caller about the lineborer and his interest in selling it.
[18] It was Mr Wright’s evidence that the caller asked Mr Townsend how much he wanted for the lineborer and Mr Townsend gave him a price of about $40,000 to $50,000 over the phone. The Applicant disputed this. The difficulty with this evidence is Mr Wright’s concession he could only hear one side of the conversation, the correspondence attached to Mr Wright’s statement 17 makes no reference to a discussion of price and Mr Townsend was not called to give evidence.
[19] Mr Wright said Mr Townsend asked the caller his name and Mr Townsend said “Jay.” Mr Wright claimed Mr Townsend then said “send me an email of what you want and I will send you the details.” Mr Wright said Mr Townsend then ended the call and he then asked Mr Townsend who he was speaking to and Mr Townsend replied “some bloke Jay who wants to buy a lineborer. Why do you know him?” Mr Wright said he replied “he works for us.” 18
[20] Mr Wright said shortly after this he asked the IT department to give him the Applicants mobile telephone records. 19 Mr Wright said the records indicate the call to the phone of Mr Townsend made by the Applicant was at 4.37pm, which was a time when the Applicant was at work.20
[21] Mr Wright said he identified from the phone records of the Applicant that he had contacted another supplier Kev on 1 March 2013, and shortly thereafter called Mr Townsend. Mr Wright said he assumed that the Applicant had rung Kev to get Mr Townsend’s number.
[22] Mr Wright said he rang Ms Manning in Human Resources to ask what they could do. Ms Manning said in her statement that on or about 4 March 2013 she received a phone call from Mr Wright who told her he was concerned that the Applicant was preparing to start a business in competition to the Respondent and he wanted to know what could be done. 21 It was Ms Manning evidence that Mr Wright had advised her on 1 March 2013 he had been in a meeting with a long term supplier when the Applicant had rung the supplier making enquiries regarding purchasing a lineboring machine.
[23] The Applicant said in the course of the meeting on 6 March he was asked if he spoken to a “sales rep” on Friday of the previous week, and he replied no. The Applicant also claimed it was said to him that he had money behind him.
[24] Ms Manning said she asked the Applicant if he had called a “machinery dealer” on Friday, 1 March 2013 about buying a lineboring machine. Ms Manning claims the Applicant said he had not called “anyone” on that date about buying a lineboring machine. 22 The Applicant claimed the words used were “tool supplier” and that he was unaware the person was a “machinery dealer”, “tool supplier” or “sales rep”, but was “a bloke some other bloke had told me to ring up, that acquired some equipment.” He said he got his number off an electrician. 23 24 In oral evidence the Applicant claims he said he called a lot of people on Friday but couldn’t remember calling a tool supplier. 25 He said he was nearly 100% positive that a question that included the words had he “spoken to anyone” wasn’t put to him.26 In cross examination Ms Manning maintained the question was about a lineboring machine.27
[25] Mr Wright in his evidence claimed that he asked the Applicant if he had rung “anyone” on the previous Friday enquiring about purchasing a lineborer and Mr Wright claimed the Applicant answered no. Mr Wright said he asked him if he was sure and he said no. 28 Mr Wright gave the same oral evidence.29 The Applicant claimed to have no knowledge that the person he rang on 1 March was a tool supplier.30
[26] The Applicant said that 99% of the calls he made from the mobile phone were personal calls and he was never told he could not do this. 31 He admitted that he called Mr Townsend. He said he didn’t know him. He said he got a phone call from Kev (which appeared to be a reference to Kevin Thyer) that had worked for the Respondent. The Applicant said he understood Kev would have been told by someone else the Applicant had spoken to about that he had asked them about the cost of second hand gear.32 This is consistent with an email of Mr Thyer dated 17 July 201333 that appeared to have been sent to Kevin Webb regarding Mr Thyer’s involvement. The email indicates Mr Thyer learned of the Applicants potential interest in lineboring equipment from an unnamed source who the email indicates owned ‘Josho’s Lineboring.’ The Applicant did not take issue with the contents of the email.34 The Applicant agreed he would have asked about the price and Mr Townsend instead asked him to “send an email with an offer.” The Applicant said no price was given. The Applicant said he never sent an email.35
[27] The Applicant said the phone call was made from the car park outside work and he was unsure if he had actually commenced shift yet or whether it was before that. 36 It was agreed the call was made at 4.37pm based on phone records produced.37 38 Because the start time varied it remained unclear whether the Applicant would have commenced shift or not,39 however he did give evidence he was on nightshift at the time and had been for over a year.40 The Applicant did not disagree with a version of his conversation with Mr Townsend as provided on ‘Townsend Machine Tools’ letterhead signed by Mr Townsend attached to the statement of Mr Wright.41
[28] Mr Wright agreed he did not show the Applicant the telephone records at the meeting. 42 Mr Thyer, like Mr Townsend was not called to give evidence.
Quote for Trailer
[29] Mr Wright claimed he asked the Applicant if he had got a quote for a trailer and the Applicant denied it. 43 Ms Manning claimed she asked the Applicant if he was getting a special trailer made to accommodate a line borer machine and the Applicant said he was not.44 The Applicant denied he was asked this.45 He said the only discussion about trailers in the meeting on 6 March 2013 was when he offered information about a conversation he had with someone else that owned his own company called 3D. He said the trailer they discussed was a boilermaker’s trailer, not a lineborer trailer. 46
[30] The Applicant said he told them he had got a quote off a “tool supplier” for things such as welders, and that he’d queried someone at another place on the cost of a boilermakers trailer, but didn’t ask for a quote as it was just general conversation. 47 This appears somewhat consistent with Ms Manning’s evidence that the Applicant said he had enquired with a trailer supplier about how much it would cost to get a lid put on a certain type of trailer. Ms Manning said the Applicant denied having a trailer made.48
[31] Mr Wright said in oral evidence the question he was asking referred to Bryant Industries however he admitted he did not mention this to the Applicant in the meeting. The reference to Bryant Industries did not appear in his witness statement either. It is apparent it was never put directly to the Applicant by either Mr Wright or Ms Manning that they alleged he sought a quote from Bryant Trailers when Mr Wright later claimed at the hearing he was told but he did not say by whom, that the Applicant had sought such a quote. The manner in which Mr Wright and Ms Manning pursued their enquiry on that particular point was unfair to the Applicant. Had they been more transparent in their questioning he would have had the opportunity to answer the matter directly. He was denied that opportunity but from Mr Wrights evidence it appears this formed part of his arriving at a conclusion that the Applicant was being dishonest.
Swapping Car for Four Wheel Drive
[32] Mr Wright said he also asked the Applicant if he was swapping his car over for a four wheel drive and the Applicant denied this. 49 This is consistent with the evidence of Ms Manning.50 The Applicant said he already owned a four wheel drive and questioned why he would swap for another four wheel drive.51 He said Mr Wright knew full well he owned a Hilux four wheel drive.52 He said he was definitely not asked this question.53
[33] In his oral evidence Mr Wright said this was not written properly and it was intended to say swap for a Land Cruiser instead of a Hilux. Again Mr Wright said it was based on something he had been told, but did not identify who he claimed told him this.
Quote to Machinetek
[34] The Applicant claimed it was said to him the Respondent had emails of some kind. Ms Manning said Mr Wright told the Applicant he had received an unsolicited quote to Machinetek for a trailer. 54 The Applicant said in oral evidence he was not told the Respondent had a “quote”, he was told they had an “email” and there was no elaboration on what kind of email.55
[35] The Applicant said the quote which was tendered as part of the Respondents case 56 was addressed to Machinetek not him.57 The Applicant claimed he offered to show Mr Wright quotes he had received for welding equipment because he did not deny getting those quotes.58 Mr Wright agreed he did not show the Applicant a copy of the quote from Austwide Tooling.59
[36] The Applicant said he did not seek that quote. It was put to him it could have been sent to the Respondent thinking that the Applicant had taken it on the Respondents behalf. The Applicant responded sarcastically, that would be because he was so secretive he told them he worked for the Respondent. 60
[37] Mr Wright said in evidence he didn’t say it was definitely the Applicant’s quote, just that it was strange that everything lined up, and when he rang Austwide Tooling they couldn’t remember who asked for the information, but said some bloke from Machinetek rang up enquiring about all this new gear. 61
[38] The Applicant gave evidence that the quote was for 2 inch bars and if he was to start a business he would purchase 2 and a quarter inch because they are sturdier. 62 The Applicant said that he had made enquiries about purchasing welding gear from ‘Blacksmith Jacks’.63 He said he got the quote because he wanted to see how much it would cost to start his own business. The Applicant said he did not have the money to start his own business. 64
[39] The Applicant said he had a separate general conversation about the cost of setting up a boilermaker’s trailer with 3D. He said he raised this in the meeting because he thought they might have been confused. 65
Stood Down and Return of Property
[40] Ms Manning claimed she then asked the Applicant again, “So, you’re not going into business on your own?” and he said “no.” Ms Manning said she then asked “Are you thinking of going into business on your own? and he said “no”. Ms Manning said the Applicant then asked “what this was all about?” Ms Manning said she advised they had received information he was going into business on his own and they had to ensure they protected the Respondents commercial interests and ensure they could still trust him to work with the best interests of the Respondent in mind. 66
[41] Ms Manning claimed she said to the Applicant “This is very serious, we are not looking at a warning here, we are looking at a possible termination of your employment.” She said when told this the Applicant did not change his responses. 67
[42] Mr Wright claimed he said to the Applicant that he would never stop anybody for having a go at starting their own business and if it was done the right way, then they could maybe work in with the person whilst they got up and started. 68 Mr Wright said he wanted the Applicant to be truthful about what was going on and then they could work out where they went from there. Mr Wright said he asked the Applicant if he wanted to change any of his responses and the Applicant said he did not.69
[43] The Applicant said that at this point he was told they were standing him down with pay. Mr Wright confirms this was said but added it was whilst the Respondent considered its position. 70
[44] The Applicant said he was told that he was to come back at 8am in the morning for another meeting so this would give him a chance to think about things.
[45] The Applicant said he was asked to clean everything out of his work ute, to which the Applicant claims he asked “Am I getting the sack?” He claims they said no, that he was just being stood down at this point in time. The Applicant said he then asked, “Why can’t I drive it home, take my gear out and bring it back in the morning?” The Applicant said they responded no, to clean it out now and he would be dropped home.
[46] In his statement Mr Wright described it this way; “We took back our vehicle, our tools and intellectual property that Jay had in his possession.” Mr Wright confirmed the Applicant asked if he was being dismissed and Mr Wright claims he said no decision had been made yet. Mr Wright also confirmed the Applicant said that it was obvious he was being dismissed, because they had taken property back and Mr Wright claimed he answered no, that we have to consider the answers you gave us and make a decision. 71
[47] Ms Manning’s version was that she then advised that they needed time to consider his responses to their questions and whilst they were doing this he was stood down on full pay. Ms Manning said she advised the Applicant they needed to remove his laptop, credit card, work vehicle, car keys, mobile phones and that they would like him to report to them again the next morning at 8am, which was later changed to 9.30am. She claimed she said to the Applicant to consider his answers overnight and let them know tomorrow if he would like to make any changes to those answers. 72
[48] Mr Wright said that after the meeting with the Applicant that Ms Manning, Mr Hildebrand and himself reached the view that the Applicant was not being honest with them and that they had lost trust in him to work in their best interests. 73 This is consistent with Ms Manning evidence that after the meeting Mr Wright and herself discussed the Applicants responses and agreed that they did not consider that he was answering their questions truthfully. Further that they considered that the Applicants denial about making a telephone call on 1 March 2013 was not consistent with the telephone records and Mr Wright’s witnessing of the conversation with the supplier.
[49] Ms Manning said she then rang Mick Cullity and explained what had happened during the meeting and it was agreed that they had lost trust in the Applicant to work in the best interests of the Respondent in mind. She said it was also agreed that if the Applicant did not change his responses in the meeting scheduled for the next morning then his employment would be terminated. 74
[50] The Applicant said it was confirmed the meeting would be 9.30am not 8.00am as it was unsuitable. The Applicant claimed that as he was cleaning out the ute he said to Mr Wright, they’d obviously made their decision that they were sacking him because why else would they make him clean his ute out and leave it there right then. The Applicant claimed Mr Wright replied “we’ll see.” The Applicant claimed Mr Hildebrand was present while the Applicant cleaned out the ute but didn’t say anything.
[51] Ms Manning said that on Mr Hildebrand’s return from escorting the Applicant to his vehicle he advised her that the Applicant had wiped his mobile phone prior to handing it to him. 75
[52] Karen Bonaventura gave evidence that on 6 March 2013 her husband came home and told her he just had a meeting at worked and he had been asked if he was starting a business, or if he had called a tool supplier. Ms Bonaventura said her husband told her that he had answered no to both questions, but said he had told Mr Wright he’d made some enquiries and could bring quotes in if he wanted. 76 She confirmed she did not attend the meeting on 6 March. 77
[53] The evidence, particularly that of Mr Wright and Ms Manning set out above supports a conclusion that a decision had already been made on the evening of Wednesday 6 March by Ms Manning and Mr Wright in consultation with Nick Cullity that the Applicant was being untruthful in regards to both the matter of whether the Applicant was intending to establish his own business and his responses to question regarding the telephone call of 1 March. It was decided on the evening of 6 March the Respondent had lost trust in the Applicant to work in the best interests of the business. There is a dispute about how a question or questions were put in regard to the second matter which has some relevance in the resolution of this matter. Mr Wright said in oral evidence he had lost trust in the Applicant that afternoon. 78 Ms Manning confirmed the same. 79
[54] In any event it is clear enough the Respondent had made up its mind it would terminate the Applicant the following day unless the Applicant changed his response. Mr Wright said no further investigations were done between the meetings of 6 and 7 March. 80
MEETING OF 7 MARCH 2013
[55] Ms Bonaventura said that on the morning of 7 March 2013 a meeting was held attended by herself, her husband, Mr Wright and Ms Manning. She said no notes seemed to be being taken and towards the end of the meeting Jay Bonaventura asked for minutes of the meeting of the previous afternoon. She said after the meeting she and her husband went home and wrote down as much as they could remember that was asked or said in that meeting and this became her husband’s statement. She said she supported that statement regarding the meeting of 7 March 2013 as being what happened during the meeting. 81
[56] Ms Bonaventura said that her husband was only asked two questions in the meeting on the morning of 7 March, firstly, was he starting a business, to which she says he replied no, and did he call a tool supplier, to which she also says he also answered no. She said the reason he answered no to the second question was because he was not aware at the time that the person he spoke to was a tool supplier. 82 The Applicant gave evidence that he did not have an officially registered business at the time and never did any work for anyone else.83
Presence of Mr Morne Hildebrand
[57] Ms Bonaventura gave evidence that the statements of Ms Manning and Mr Wright were incorrect in that they both say Mr Hildebrand was present at the meeting when he was not. 84 85
[58] The Applicant said he got to the meeting at 9.30am with his wife Karen, and Mr Wright and Ms Manning were present from the Respondent. Mr Wright said the meeting started at about 8.30am, 86 which is inconsistent with the evidence of the three other witnesses.
[59] The Applicant said Ms Manning asked if he would like to change anything from what he had said the previous afternoon. The Applicant said no, apart from saying again that he is not starting his own business. 87 This is consistent with the evidence of Mr Wright88 and Ms Manning.89 90
Disputes concerning how questions were framed in meeting regarding phone call 1 March, trailer and 4WD
[60] Mr Wright said in his statement Ms Manning asked the Applicant again if he had “spoken to anyone” on 1 March 2013 about buying lineboring gear and the Applicant denied that he had done so. 91 Ms Bonaventura said that Ms Manning never asked that question in the meeting.92
[61] Ms Manning said in her statement Mr Wright said “we just want you to be honest with us. We can’t stop you starting your own business but just be honest with us.” 93 The Applicant agreed with this.94 Ms Manning said the Applicant then denied going into business and that he was having a trailer built to accommodate a lineborer or swapping his vehicle for a 4WD. Ms Bonaventura gave evidence that her husband could not have denied having a trailer built to accommodate a lineborer or swapping his car for a four wheel drive because he was never asked about either of these things at the meeting.95 In any event it would appear from the evidence the Applicant was not swapping his vehicle for a four wheel drive as his existing vehicle was a four wheel drive.
[62] Ms Manning then said she again asked if he was going into business on his own and if he had called a “sales rep” on Friday to enquire about buying a lineboring machine and the Applicant answered no to these questions. 96 Ms Bonaventura said Ms Manning did not ask if he called a “sales rep”. She said it began as a “tool supplier”, to “machinery dealer”and then in this part “sales rep”.97 When asked in cross examination if she disagreed with what Ms Manning claimed to have said in paragraph 43 in her statement or just the title sales rep, Ms Bonaventura said “possibly a little bit of both. They actually asked Jay if he called a tool supplier.”98The Applicant said in oral evidence the question about calling a “sales rep” wasn’t asked again at the meeting on 7 March, he was asked if he was starting his own business and if his story had changed. 99
[63] Ms Bonaventura quite openly accepted that she and her husband had discussed the idea of having a business but that was as far as it went. She said they had discussed the idea for five years and she had encouraged her husband but they had taken no active steps into starting their own business. 100
Reason given for termination
[64] The Applicant claimed that Ms Manning then said that because his response had remained unchanged they were terminating his employment. The Applicant said he asked why and he claims she responded they had been hearing “to much noise regarding me to ignore, therefore I could not be trusted within the company and they were terminating his employment effective immediately.” He repeated this in his oral evidence. 101 In oral evidence he continued to maintain that he had to actually ask why he was terminated and that nothing was said about ethics, and this was only in the termination letter.102
[65] This is somewhat different to the evidence of Mr Wright who said that he advised the Applicant that he was being dismissed and that it was because they considered that he was not being honest and that they could not trust him anymore. 103 Ms Manning’s evidence was that it was her that told the Applicant that he was being terminated. She claims she said “we don’t feel we have any other option than to terminate your employment effective immediately because there appears to be a clear breach of ethical conduct in relation to your employee obligations.”104 Ms Bonaventura’s oral evidence was that when her husband asked why he was being fired Ms Manning replied, “There is too much noise to ignore” which is consistent with the Applicants version. Ms Bonaventura said her husband asked what the noise was but they would provide no documents, or say who said what. Ms Bonaventura maintained the question put to her husband was “Did you call a tool supplier?” Ms Bonaventura also said Mr Wright did not fire her husband.105
[66] Ms Manning claimed she said that they had received too much information from too many people that the Applicant was starting his own business and that they cannot trust him to act as a faithful agent for the Respondent anymore. 106 The Applicant’s oral evidence was that he agreed this might have been said.107 This is consistent with Ms Manning’s oral evidence.108
[67] The Applicant said he asked about the emails that Mr Wright had mentioned the afternoon before and Mr Wright replied that “They’re not his emails, they are emails sent to us because someone from DMS was asking for a quote on some tools”.
[68] The Applicant claims he then asked who was saying things about him. He claims Mr Wright replied “why, so you can ring them up and ask them why they’ve said something.” The Applicant said he replied no, because he’d like to ask them why they’ve spread rumours about him. The Applicant claimed that Mr Wright said that if he’d gone about things the right way they could have worked together. The Applicant said he then asked for the minutes of the meeting the afternoon before. The Applicant says Ms Manning then said that they would finalise things later that afternoon and a final payment of 2 weeks pay plus accrued leave would be paid to the Applicants account as soon as possible. Mr Wright said Ms Manning told the Applicant he would be sent a termination letter and she told him what his termination payments would be. 109
[69] Mr Wright said he lost trust in the Applicant because of what Mr Townsend and Mr Thyer had told him. 110 He then said however he couldn’t recall if he had spoken to Thyler before the termination.111
[70] Mrs Bonaventura said she had contacted people regarding a quote 112 addressed to the Respondent and the person who took the quote, and another who typed it, had no idea who requested the quote. 113
[71] The Applicant said they left the meeting, however he remembered that he should have got paperwork or a termination letter before leaving so he went back in and asked if they had one. He claimed he was told they would email that on later that day.
[72] The Applicant said he went back a second time to get certificates on his file which he would need to find other work. The Applicant said he received a termination letter later that day. He said he then emailed Ms Manning asking for a separation certificate which he claims she said would be sent when final payment is made.
[73] The Applicant claimed that the ute he was asked to clean out on the Wednesday afternoon of 6 March was already given to someone else the following morning, which the Applicant claims is proof the Respondent had already decided to terminate him and the meeting on Thursday morning was only going through the motions. The Applicant said he had never received a written warning and that anytime he had asked if there was a problem with his work he was always told no, even in the meeting when they sacked him.
[74] The Applicant conceded he had made enquiries as to prices of equipment and tools. He said he had not purchased any gear, did not have an ABN, did not have a loan, or enough personal money to use to create a business.
[75] Mr Wright said the decision to dismiss the Applicant was based on a decision that they could not trust him. 114 He said the issue of credit card use or absences was not relevant.115 Mr Wright gave an example of another employee who had told the Respondent he was thinking of starting his own business. He said when the time came for that employee’s business to compete with the Respondent, it was mutually agreed he leave.116
[76] Mr Wright said the Applicant had limited experience in lineboring when he commenced employment with the Respondent, and the Respondent invested considerable time and money in improving his skills through formal and on-the-job training. Mr Wright said line borers mainly spend their time working on client sites or jobs and at other times they may work in a workshop. He said when line borers are working away from the workshop they generally work without supervision. He said the Respondent must place a high degree of trust in its employees and expects that employees respect that trust. 117
[77] Mr Wright said that lineborers are provided with work mobile phones, tools and vehicles to be able to undertake work. They are also given credit cards to book accommodation, pay for meals, to purchase equipment or arrange repairs quickly if the need arises.
EARLIER ISSUES
[78] The Applicant said he asked Ms Manning near the conclusion of the meeting on 7 March if she had seen the email he had sent to Mr Wright regarding the payslips and she said yes, a couple of weeks ago. The Applicant claimed that Mr Wright then said that had all been sorted out, to which the Applicant said he had never received a response in writing as he’d asked.
[79] The Applicant said that about 6 weeks prior to the meeting that resulted in his termination he started asking questions about the Agreement that employees worked under and he said the answers given by Mr Wright were wrong. The Applicant said Mr Wright said they did not work under the Agreement even though they “made us” sign it. 118
[80] In the originating Application filed, the Applicant refers to a meeting in December 2012 where he said he signed a form, and asked for the copy of the agreement, and asked why the base rate of pay was different to what it said in the Agreement. The Applicant claimed Mr Wright replied by saying, “We don’t even work under that agreement, that’s Andersons agreement, so that pay rate means nothing.” The material supplied with the Application claims this occurred in a room with all the lineborers and Ms Manning.
[81] The Applicant claims to have emailed Mr Wright about this but never got a reply. What was said to be a copy of an email sent by the Applicant to Mr Wright was tendered, and it raised that the payslips do not reflect the Agreement rates of pay and allowances. 119 Mr Wright accepted that he received the email.120 He said he did not remember showing it to Ms Manning two weeks before the Applicants termination.121 122 Ms Manning said she thought she was shown the email before the issues were resolved.123
[82] The Applicant says he had a subsequent conversation with Mr Wright and Kev, about his email and that they said that he was on a 25% loading and that they can pick and choose what they want from the Agreement. The Applicant claims they agreed they could not understand his payslip either and the Applicant says he asked them to respond in writing to his email. The Applicant said he never got a written response to his email as he had requested. 124
[83] The Applicant claimed to have noticed a difference in his treatment after this, which included that he was pulled in several times and there were always three of the highest people in the workshop, namely Kev, Mr Wright and Mr Hildebrand “attacking him about stuff.” 125 He said he was called to meetings unplanned and would be asked if he was “happy being there and stuff like that.”126 The Applicant agreed he had been asked whether he was proposing to go into business sometime after he sent the email.127 It was put to him that this was why the relationship was souring, and not because of his questioning the payslips. He rejected this on the basis others who worked for the Respondent operated their own business at the same time.128
[84] The Applicant claimed that sometime after the meeting regarding his email about pay he was called in once again and confronted by Mr Wright, Kev and Mr Hildebrand to ask him if he was unhappy at work and if he had a hidden agenda, to which he claims he replied; “no, I’m happy. Is there a problem with my performance, or work being done” to which the applicant says they replied no.
[85] The Applicant claims he was then accused of being the sole reason for the rules brought in just before Christmas regarding work credit cards and meal allowances. The Applicant also claims they said he was a troublemaker, saying that a group of 5 lineborers were badmouthing the company, but they couldn’t say it was him. The Applicant said he asked Mr Hildebrand and he said he didn’t think it was him as the Applicant was on permanent nights.
[86] Mr Wright said that around December 2012 it was considered some lineborers were taking advantage of the credit cards and charging unreasonable expenses to the cards. For this reason, the Respondent re-inducted all of the lineborers on the policy regarding reasonable use of credit cards. Mr Wright said he did speak to the Applicant about the use of credit cards, but denies saying to him he was the sole reason for the re-induction as other employees were misusing credit cards. 129
[87] Mr Wright said around late January early February 2013, the Respondent heard a number of rumours that the Applicant was considering starting up his own lineboring business in competition with the Respondent. 130
[88] Mr Wright said in his statement that Mr Hildebrand, the Applicants supervisor, Kevin Webb and himself met the Applicant at this time and asked the Applicant whether he was planning on setting up a business in competition with the Respondent and that the Applicant said he was not. Mr Wright said that during this conversation the Applicant raised issues about his payslip and whether he was employed as a field service technician under the agreement and Mr Wright said he answered that he was employed as an experienced tradesperson under the agreement. 131
[89] Ms Bonaventura gave evidence that her husband had been dealing with the Fair Work Ombudsman before being terminated. 132 Further, she said she believed Mr Wright’s claim that the concerns raised earlier in the year by the Applicant not factoring in the decision of the Respondent because they had been dealt with, were untrue.133
CONSIDERATION
Valid Reason
[90] The Applicant has sought to argue that his termination was in some way connected to his raising of an issue regarding the payslips and proper entitlements. The evidence is insufficient for me to be satisfied of a connection between that matter and the Respondents decision to terminate the Applicant. Mr Wright’s evidence was he thought the matters were resolved and it would appear to me the Respondents central concern about the Applicant was that he was setting up as a competitor, not the pay query. The Applicants claim is possible, but I can’t say it more likely to be true than not true. That matter has therefore not been a factor in reaching a conclusion.
[91] This is a matter where findings are required in relation to disputed facts going to the specific questions the Applicant was asked in the meetings of 6 and 7 March 2013. In making a finding on the balance of probabilities regarding the evidence I have been influenced by a number of factors. The first is the evidence of the Applicant and Karen Bonaventura that what became the statement of the Applicant was prepared by them jointly on the same day of the meeting at which the Applicant was terminated on 7 March 2013 134 that they both attended. The evidence indicates this written record was attached to the Application when filed some 5 days later on 13 March, 2013 and later became the statement of the Applicant at the hearing. It is the most contemporaneous record of the events of 6 and 7 March.
[92] This needs to be contrasted with the statements in the Respondents case which were prepared some months later and no evidence was produced of contemporaneous records kept by Ms Manning or Mr Wright. The evidence indicates no notes were kept during either of the two meetings themselves. Mr Wright confirmed he did not keep notes and was unsure if Ms Manning did. 135 Ms Manning claimed she took notes and wrote a file note 24 hours later but none of this material was produced.136 137The Applicant said he asked Mr Wright to see the emails he referred to in the meeting of 7 March and this request was refused.138The Applicant said he asked for minutes of the meeting on 6 March and was told none were taken.139
[93] Further the evidence showed some errors and some inconsistency in the statements of Mr Wright and Ms Manning. The most significant error was that they both placed Mr Hildebrand in the meeting of 7 March 2013 but both later conceded he did not in fact attend. 140 141 Mr Wright’s statement states the meeting commenced at 8.30am which is inconsistent with the other three witnesses who all said it commenced at 9.30am.
[94] Both Mr Wright and Ms Manning’s statements appear to also claim that they were the person who advised the Applicant he had been terminated during the meeting of 7 March. On reading the statements it seems unlikely both could be correct. In oral evidence Ms Manning affirmed her view that she advised the Applicant.
[95] Ms Manning admitted that she never saw a copy of an unsolicited quote Mr Wright maintained he had received at Machinetek for a trailer. She admitted she may have been confused in giving this evidence and intended to refer to a quote for equipment from Austwide Tooling. 142 Mr Wright also admitted his statement was wrong where it said he asked the Applicant if he was swapping his car for a four wheel drive. The evidence was clear the Applicant already owned a four wheel drive at the time. Mr Wright subsequently claimed he intended to say swapping his Hilux for a Land Cruiser however this change in his evidence raises doubts about the reliability of other evidence when several other mistakes are conceded in his statement. These factors all strengthen the Applicants argument for acceptance of his and Karen Bonaventura’s version of the form in which questions were put to the Applicant when there is conflict in the evidence.
[96] On balance the evidence of the Applicant and Ms Bonaventura is preferred, that being the question asked concerning the phone conversation was not whether he called “anyone” as claimed, but whether he had called a “tool supplier”. The Applicants evidence was he did not know who Mr Townsend was and was given his phone number by a work colleague on the basis he had purchased some equipment at an auction.
[97] The two witnesses for the Applicant have argued that same question did not extend to whether the call was about purchasing a lineboring machine but was confined to whether he called a tool supplier. The two witnesses for the Respondent have said the question specifically raised line boring equipment. I am more inclined to accept that the matter of the lineboring equipment was raised as Mr Wright and Mr Townsend had discussed the phone conversation on 1 March and the Applicant accepted he rang Mr Townsend about lineboring machinery. It is therefore more likely that the question put to the Applicant did specifically raise lineboring machinery. It is also plausible however, that the Applicant believed he was answering honestly when he said he did not call a “tool supplier” because he did not know Mr Townsend, and therefore would not have known what his occupation was.
[98] If I am wrong on the views expressed above, and the question put to the Applicant was whether he called “anyone” and not a “tool supplier” about purchasing line boring equipment as argued by the Respondent, it can still be the case that he was not dishonest in his answer because even on the version as put in the letter provided by Mr Townsend 143he did not make an offer to purchase the equipment, he merely inquired about its availability. On the Applicants version he merely inquired about cost. On Ms Manning and Mr Wrights evidence they used the words to “buy” or to “purchase” line boring equipment. Again it would seem the Applicant could answer honestly no to that question if put in those terms because the evidence is he did not make any offer to buy or purchase line boring equipment, and in fact chose not to take the matter any further when invited to make an offer in writing.
[99] The Respondent in closing submissions referred to a spectrum of conduct between the time at which a decision is taken to set up a business and the time at the other end of the spectrum at which competition occurs. That submission is not on point here as the evidence does not support a finding that the Applicant fell anywhere on such a spectrum. In the High Court decision of Blyth Chemicals Ltd v Bushnell Dixon and McTiernan JJ 144said;
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”
[100] It appears clear from the evidence the Applicant had not arrived at a decision to buy line boring equipment let alone begin any competition. He also gave evidence he could not afford to purchase the equipment even if he wanted to. Further, even if he had answered yes to the first question it would not have provided a valid reason for termination because the termination would have been made based on anticipated future competition, and on the High Court authority of Blyth Chemicals dismissal in those circumstances is not justified.
[101] I am satisfied the Applicant was not dishonest when he answered either the first question as to whether he was setting up a business, and also the second regarding the phone call on 1 March.
[102] In terms of the second question, if both the conclusions reached above are wrong, firstly regarding the most likely form the second question was put, and secondly that even on the Respondents version of the question it was still answered truthfully, then in any event there is authority that dishonesty in particular circumstances does not always form a basis for termination.
[103] All of the circumstances must be looked at in context. It must be remembered the second question was asked by the Respondent for the purpose of helping it form an opinion in regard to the first. The evidence strongly indicates the Applicant answered the first question truthfully, that is he was not setting up a business. If the Applicant was dishonest in answering the second question, it was because he was trying to convince the Respondent he was truthful on the first question, which he was. The real substance of the Respondents concern was the issue at the heart of the first question. The evidence supports a conclusion that concern was not properly founded. It is trite to say that the Applicant should have been honest in answer to the second question if he was not. However, it would be an unjust outcome if the real issue that gave rise to the controversy in the first place had no substance, but that a collateral issue relating to a lack of honesty on a subsequent question then went on to become of itself, the justification for termination. A Federal Court decision of Buchannan J in McDonald v Parnell Laboratories 145 found no ‘actual repugnance’ between McDonald’s dishonesty in that case, and maintenance of confidence between her and her employer.
[104] Similarly, in this instance it would not be a valid reason for termination if the alleged dishonesty did in fact occur, which I have already indicated I do not accept. This circumstance would also be distinguishable from the AIRC Full Bench decision in Streeter v Telstra Corporation Ltd (2007-2008) 170 IR 1 146 at 11 where failure to answer honestly was found to have destroyed the relationship of trust and confidence. In Streeter the dishonesty related to the central issue being investigated, here, again if it occurred at all, it was incidental and arose after the main issue was truthfully answered.
[105] The Respondent raised the issue of the Applicant using a company mobile phone to make the call on 1 March. The evidence was inconclusive on both whether the call was made on work or non work time, and whether the employer had a clear policy on personal use of work mobiles. The Applicants evidence was the mobile phone had generally always been used for private purposes and it had never been an issue. I regard the matter as neutral.
[106] In summary, my primary finding is that the Applicant answered honestly the two key questions which the Respondent ultimately determined he answered dishonestly. Those answers were relied upon as justification for termination on the basis that he could no longer be trusted. Therefore the Respondent has failed to meet the onus it carries in a case involving misconduct to prove the misconduct occurred. In the alternative, if the finding in regard to the Applicants answer to the second question is wrong, given the circumstances, such dishonesty in the particular circumstances of this case did not justify termination in the wider context of the matters at issue. On that basis there is no valid reason for termination.
Procedural Fairness Issues
[107] Ms Manning said that she had been a Recruitment Advisor with the Respondent for two years. She said she had never instantly dismissed anybody before. She said she investigated the procedures with guidance from her manager, Mick Cullity.
[108] Ms Manning said she did not conduct any investigations herself as that was being handled by Mr Wright. 147 She said it was not her role to do an investigation; her role was to facilitate a process.148 She said Mr Wright did not show her the email from Austwide Tooling Services. She said she did not have any evidence going into the meeting of 6 March because at that stage they were just calling the Applicant in for a chat.149
[109] Ms Manning said the decision to call the Applicant in for the meeting on 6 March was taken that morning. 150 The Applicant was given no advance warning about what was to be discussed at the meeting. When Ms Manning was asked why she said she wasn’t sure.151The Applicant was notified of his reasons for termination at the meeting of 7 March, however I am not satisfied he was given a proper opportunity to respond related to the alleged conduct.
[110] When Ms Manning was asked why the Applicant was required to return all the Respondents property on the Wednesday afternoon she said it was standard practice pending an investigation. 152 However she then admitted no investigation of the allegations occurred between the first meeting and the termination meeting. 153 The Applicant was never provided any documentation at any stage.
[111] Ms Manning was asked if the Applicant had come to the meeting on 7 March with different responses, what did she feel could have been the outcome? She replied that they perhaps could have come to some amicable arrangement where if the Applicant was going into business he could have exited by a certain time. 154 This answer indicates that in the Respondent’s state of mind as at the evening of 6 March it had already closed its mind to the main issue, that being whether the Applicant was going into business against it.
[112] However the evidence indicates the Respondent was well short of being able to be satisfied this was in fact occurring, either as at the evening of 6 March, or as at 7 March 2013. To the contrary the evidence indicates that the likelihood of that actually happening at that time was most unlikely. The focus of the 7 March meeting was not really an open examination of the main issue because the Respondent had already concluded the answer before the meeting started. The focus for the meeting had become whether the Applicant was being dishonest.
[113] Had the Respondent taken more time and care in how it went about investigating its concerns about what the Applicant was doing, the Applicant would have had a proper opportunity to respond to all of those concerns. For example, Mr Wright expressed concern in the hearing that the Applicant had sought a quote from Bryant Industries but never put that to the Applicant. He also claimed that he raised a concern with the Applicant that he intended changing his private vehicle (which the Applicant denies was ever raised). If it was a genuinely held concern he never identified to the Applicant or even the Tribunal the source of his concern. The procedural failings have contributed to the subsequent unfair result.
[114] The Respondent offered the Applicant an opportunity to have a support person attend the meeting of 6 March but only at the commencement of the meeting when the Applicant had no notice about what matters would be raised in the meeting. This is far from ideal, however the Applicant could have requested the meeting be postponed but elected not to. Ms Bonaventura attended with the Applicant on 7 March. On that basis Section 387(d) is a neutral factor.
Other Factors
[115] Section 387(e) is not a relevant factor in this case, and section 387(f) and (g) do not assist the Respondent, as the evidence was the Respondent had several hundred employees and in-house Human Resource expertise.
REMEDY
[116] The Applicant made clear that he did not seek reinstatement, but sought compensation for the difference between the Applicants current level of wage compared to his wage with the Respondent. 155
[117] The Applicant agreed he was told he would be paid two weeks’ notice. 156 He said he commenced employment with a new employer a week after termination and since that time has been employed as a boilermaker/line borer. He said his new rate of pay there was $33 an hour. The Applicant claimed his base rate of pay was $300 less at his new employer than at the Respondent.157
[118] A document was tendered comparing the Applicants gross and net earnings at the Respondent from 25 March 2012 to 24 June 2012 with his gross and net earnings at his new employer from 23 March 2013 to 22 June 2013. 158 It was put to the Applicant that the difference was far greater than $300 per week and this would be because of overtime and work available to which he agreed.159 He agreed that the Respondent has stood down employees because work is not available.160 He said at the moment he was getting a few hours overtime a week if he’s lucky. He agreed it was possible he would be getting less hours if he was still employed by the Respondent.
[119] It was argued for the Applicant that the amount of work he may have received if he had remained at the Respondent might not have been reduced as argued by the Respondent because it is possible the Respondent may not have lost work if he was still there as he was a good worker. This is speculative and not a reliable basis to assess compensation. Mr Wright said the Respondent has had to make a few redundancies, cut back hours and cut back wages. He said this affected the field of work the Applicant was in. 161
[120] Short written submissions from the parties were invited to be provided the week after the hearing to address any further points on assessment of compensation should it be required. The Respondent argued in its submission the Applicant would have suffered a significant wage reduction had he remained in employment with the Respondent for the six months following dismissal. To make good this argument the Respondent provided with its written submissions going to compensation an assessment of the earnings of the three remaining lineborers employed by the Respondent as indicative of the earnings the Applicant would have been reasonably expected to receive.
[121] As the employment relationship was not of long standing being approximately 2 years, and there were a number of events creating tension in the relationship quite separate to the issues that led to the termination, I estimate that the relationship would have been likely to continue for approximately 3 to 4 more months, but in all likelihood not longer. I therefore estimated likely income up to Sunday 23 June 2013, a period of between 15 and 16 weeks after termination to assess compensation.
[122] The gross earnings of the three line borers employed at the Respondent over that period immediately following the Applicants termination up until the pay date paid on 26 June 2013, for the period ending on Sunday 23 June 2013 had a total value of $101,240.54 divided by three to arrive at an average figure of $33,746.84. The Respondent argued this gross figure represents what the Applicant would have been likely to earn if he was not terminated.
[123] Income earned by the Applicant in the corresponding period (including the two weeks paid to the Applicant on termination) based on exhibit 16 from his new employer was $29,641.65 paid on 24 June 2013 for the period ending on Saturday 22 June 2013. As the pay periods are out of alignment by 1 day, I have included the equivalent monetary value of one fifth of the following week’s remuneration for the Applicant which was $544.73 in order to align the comparisons to the same date. Also added is the two weeks’ notice pay of $2,831.76 as set out in the Employment Separation Certificate. The total of these amounts is $33,018.14. These calculations indicate the likely loss because of the termination over the sixteen week period to be an amount of $728.70.
[124] Because the Applicant provided material indicating a significant difference between his weekly earnings comparing March to June 2012 while at the Respondent, and March to June 2013 with his new employer, I was concerned that this was at odds with the Respondents argument concerning his likely income had he not been terminated. On the basis of this disparity the parties were recalled for a brief telephone hearing on 25 September 2013. It was requested that the Respondent provide a statutory declaration in regard to the Applicants income compared to the three lineborers in the six month period preceding termination in order to assist in determining if the income of those three was indicative of the Applicants income prior to termination, and therefore a reasonable basis for prediction of future earnings.
[125] The Respondent made the point on 25 September that since the Applicants termination the Respondent has not had, and currently does not have a lineborer working permanent nights as the Applicant did. The Respondent argued the work has not been available. 162 The Respondent argued had the Applicant remained in employment he would have been working day shifts and not attracting an evening penalty of 25%.163
[126] The Respondent provided the statutory declaration as requested with the accompanying data comparing the Applicants income for the six months before termination with the income of the three remaining lineborers still employed over the same period.
[127] This material shows that, even taking into account that the Applicant earned significantly more income from shift allowances then the other three lineborers, two of those three still earned more income than the Applicant overall for the comparative period. This material taken in combination with the evidence concerning the downturn in the Respondents business, and likely subsequent reduction in penalty payments, satisfies me that it is reasonable to refer to the mean of post termination income of the three lineborers remaining in the Respondents employment to predict the Applicants likely income had he remained employed. Once remuneration earned since dismissal is deducted from the Applicant estimated income the calculations support a finding that the Applicant has suffered a likely loss of income because of the termination of $728.70. This approach is based on the Sprigg formula 164 adopted in Ellawalla v Australian Postal Corporation.165
[128] Section 392(4) makes clear the Commission cannot order compensation for shock, distress or humiliation caused by the manner of an employee’s dismissal. Despite a finding that the Applicants termination was unfair, as the Applicant has been clear that reinstatement is not sought that remedy has not been considered. Taking into account the considerations in Section 392 it is appropriate to order the Respondent pay compensation to the Applicant of $728.70 gross taxed according to law. An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mrs K. Bonaventura, for the Applicant.
Mr B. Cooper, for the Respondent.
Hearing details:
2013.
Mackay:
29 August.
2013.
Brisbane:
25 September.
1 Transcript dated 29 August 2013 PN 1054
2 Transcript dated 29 August 2013 PN 6 -10
3 Exhibit 1 Witness statement of Mrs Bonaventura Paragraph 3
4 Transcript dated 29 August 2013 PN 54
5 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 6 - 7
6 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 8
7 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 20 attachment SW1
8 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraphs 21 and 22
9 Exhibit 2 Witness statement of Jay Bonaventura Paragraph dated 6 March 2013
10 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 11
11 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 38
12 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 13
13 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 40
14 Transcript dated 29 August 2013 PN 416 - 417
15 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 13 - 15
16 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 41
17 Exhibit 11 Document Headed Townsend Machine Tools Pty Ltd
18 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 23 - 31
19 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 33 att SW2
20 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 34
21 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 4
22 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 17
23 Transcript dated 29 August 2013 PN 142
24 Transcript dated 29 August 2013 PN 406
25 Transcript dated 29 August 2013 PN 408
26 Transcript dated 29 August 2013 PN 410
27 Transcript dated 29 August 2013 PN 977
28 Exhibit 13 Witness statement of Steven Mr Wright dates 2 July 2013 Paragraph 42
29 Transcript dated 29 August 2013 PN 730
30 Transcript dated 29 August 2013 PN 179
31 Transcript dated 29 August 2013 PN 184 - 185
32 Transcript dated 29 August 2013 PN 342
33 Exhibit 10 Email from Kevin dated 17 July 2013
34 Transcript dated 29 August 2013 PN 384
35 Transcript dated 29 August 2013 PN 360
36 Transcript dated 29 August 2013 PN 366 - 369
37 Transcript dated 29 August 2013 PN 380
38 Exhibit 9 Record of telephone calls
39 Transcript dated 29 August 2013 PN 381
40 Transcript dated 29 August 2013 PN 569
41 Exhibit 11 Email from Kevin dated 17 July 2013
42 Transcript dated 29 August 2013 PN 733
43 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 43
44 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 19
45 Transcript dated 29 August 2013 PN 146
46 Transcript dated 29 August 2013 PN 148 - 149
47 Exhibit 2 Witness statement of Jay Bonaventura Paragraph dated 6 March 2013
48 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 20 - 21
49 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 44
50 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 22 - 23
51 Transcript dated 29 August 2013 PN 150
52 Transcript dated 29 August 2013 PN 414
53 Transcript dated 29 August 2013 PN 412
54 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 18
55 Transcript dated 29 August 2013 PN 404
56 Exhibit 8 Quotation from Machinetek Engineering Pty Ltd
57 Transcript dated 29 August 2013 PN 180
58 Transcript dated 29 August 2013 PN 181
59 Transcript dated 29 August 2013 PN 733
60 Transcript dated 29 August 2013 PN 299
61 Transcript dated 29 August 2013 PN 694
62 Transcript dated 29 August 2013 PN 558
63 Transcript dated 29 August 2013 PN 310
64 Transcript dated 29 August 2013 PN 320
65 Transcript dated 29 August 2013 PN 324 - 338
66 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 24 - 30
67 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 28 - 29
68 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 45
69 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 48
70 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 49
71 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraphs 50 - 52
72 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 30 - 31
73 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 53
74 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraphs 35 - 37
75 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 33
76 Exhibit 1 Witness statement of Mrs Bonaventura Paragraph 1
77 Transcript dated 29 August 2013 PN 62
78 Transcript dated 29 August 2013 PN 783
79 Transcript dated 29 August 2013 PN 937 - 943
80 Transcript dated 29 August 2013 PN 784 - 793
81 Exhibit 1 Witness statement of Mrs Bonaventura Paragraph 2
82 Transcript dated 29 August 2013 PN 57
83 Transcript dated 29 August 2013 PN 548 - 550
84 Transcript dated 29 August 2013 PN 69
85 Transcript dated 29 August 2013 PN 77
86 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 51
87 Transcript dated 29 August 2013 PN 436
88 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraphs 55 - 56
89 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 55
90 Transcript dated 29 August 2013 PN 975
91 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 57
92 Transcript dated 29 August 2013 PN 77
93 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 41
94 Transcript dated 29 August 2013 PN 437
95 Transcript dated 29 August 2013 PN 71
96 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 43
97 Transcript dated 29 August 2013 PN 71
98 Transcript dated 29 August 2013 PN 87
99 Transcript dated 29 August 2013 PN 439 - 440
100 Transcript dated 29 August 2013 PN 92 - 97
101 Transcript dated 29 August 2013 PN 443
102 Transcript dated 29 August 2013 PN 444
103 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 58
104 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 44
105 Transcript dated 29 August 2013 PN 77
106 Exhibit 15 Witness statement of Kylie Manning dated 1 July 2013 Paragraph 45
107 Transcript dated 29 August 2013 PN 446
108 Transcript dated 29 August 2013 PN 1020
109 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 59
110 Transcript dated 29 August 2013 PN 721
111 Transcript dated 29 August 2013 PN 723
112 Exhibit 8 Quotation from Machinetek Engineering Pty Ltd
113 Exhibit 1 Witness statement of Mrs Bonaventura Paragraph 4 - 5
114 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 68
115 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 70
116 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 74
117 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 7 and 8
118 Transcript dated 29 August 2013 PN 172
119 Exhibit 4 Document headed Dear Steve, Email sent by Applicant
120 Transcript dated 29 August 2013 PN 684
121 Transcript dated 29 August 2013 PN 687
122 Transcript dated 29 August 2013 PN 804
123 Transcript dated 29 August 2013 PN 949
124 Transcript dated 29 August 2013 PN 214
125 Transcript dated 29 August 2013 PN 174
126 Transcript dated 29 August 2013 PN 176
127 Transcript dated 29 August 2013 PN 217
128 Transcript dated 29 August 2013 PN 223
129 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraphs 12 and 13
130 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraph 14
131 Exhibit 13 Witness statement of Steven Wright dates 2 July 2013 Paragraphs 16 to 18
132 Transcript dated 29 August 2013 PN 76
133 Transcript dated 29 August 2013 PN 77
134 Transcript dated 29 August 2013 PN 418
135 Transcript dated 29 August 2013 PN 763 - 778
136 Transcript dated 29 August 2013 PN 932
137 Transcript dated 29 August 2013 PN 980
138 Transcript dated 29 August 2013 PN 584
139 Transcript dated 29 August 2013 PN 576
140 Transcript dated 29 August 2013 PN 817
141 Transcript dated 29 August 2013 PN 981
142 Transcript dated 29 August 2013 PN 991
143 Exhibit 11 Document headed Townsend Machine Tools Pty Ltd “ To Whom It May Concern”
144 Blyth Chemicals Ltd v Bushnell Dixon and McTiernan JJ
145 McDonald v Parnell Laboratories (Aust) [2007] FCA 1903
146 Streeter v Telstra Corporation Ltd (2007-2008) 170 IR
147 Transcript dated 29 August 2013 PN 965
148 Transcript dated 29 August 2013 PN 1032
149 Transcript dated 29 August 2013 PN 970 - 972
150 Transcript dated 29 August 2013 PN 1034
151 Transcript dated 29 August 2013 PN 1036
152 Transcript dated 29 August 2013 PN 1007
153 Transcript dated 29 August 2013 PN 1014
154 Transcript dated 29 August 2013 PN 1027
155 Transcript dated 29 August 2013 PN 1058
156 Transcript dated 29 August 2013 PN 448
157 Transcript dated 29 August 2013 PN 495
158 Exhibit 12 Two page document wage summary spreadsheet
159 Transcript dated 29 August 2013 PN 497
160 Transcript dated 29 August 2013 PN 502
161 Transcript dated 29 August 2013 PN 627 - 629
162 Transcript dated 25 September 2013 PN 1206
163 Transcript dated 25 September 2013 PN 1175
164 (1998) 88 IR 21.
165 AIRCFB Print S5109, 17 April 2000 (Ross VP, Williams SDP and Gay C).
Printed by authority of the Commonwealth Government Printer
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