Mr Matthew Smith v AWH Pty Ltd

[2016] FWC 5788

[2016] FWC 5788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Matthew Smith
v
AWH Pty Ltd
(U2016/2275)

COMMISSIONER CLOGHAN PERTH, 25 AUGUST 2016

Application for relief from unfair dismissal - jurisdictional objection - dismissal was a case of genuine redundancy.

[1] Mr Matthew Smith (Mr Smith or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, AWH Pty Ltd (AWH or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The Employer asserts that the Applicant is not protected by the unfair dismissal provisions of the FW Act, as his dismissal was a case of genuine redundancy.

[4] The application has been the subject of a previous Decision relating to the production of documents [2016] FWC 5589.

[5] At the hearing, the Applicant was represented by Mr Paul King, Agent. Mr Smith gave evidence on his own behalf.

[6] AWH was represented by Ms Marnie Briggs, National Human Resources Manager. Evidence for the Employer was given by Mr John Ward, formerly Western Australian General Manager and now General Manager South West Region.

[7] This is my decision and reasons for decision on the Employer’s jurisdictional objection that Mr Smith is not protected by Part 3-2 Unfair dismissal provisions of the FW Act.

RELEVANT BACKGROUND

[8] The Employer is located in Victoria, New South Wales, South Australia, Queensland and Western Australia.

[9] AWH is in the warehousing and logistics business. The business provides storage, handling, freight forwarding and inventory management for import, export and national distribution.

[10] AWH is owned on a 50/50 basis by DP World Australia Limited (DP World) and Landmark Pty Ltd (Landmark).

[11] In the financial year 2015/16 (FY16), the Western Australian operations of AWH made a loss of approximately $2.5m.

[12] In response to its deteriorating financial position in FY16, the Employer consolidated its Western Australian operations into one site; previously it had three (3) sites. It is notable that Mr Smith was the contact person for the Employer’s communication to industry concerning the closure of the Rous Head site. AWH had been operating at Rous Head for 40 years. The Employer states, in the communication, that the decision to close Rous Head was due to the “current economic climate”. 1

[13] In FY16, 16 employees, including Mr Smith, had their employment terminated on the grounds of redundancy. A further 13 employees resigned and two (2) employees had their employment terminated.

[14] The uncontested evidence of Mr Ward was that in FY16, the AWH’s Western Australian workforce was reduced by over 30%. 2

[15] In August 2015, the Employer closed its Port Beach operations. In his communicate to staff, Mr Wards states, “we have worked hard to make this site profitable, and kept the site operating at a loss for about 18 months looking for improvements in the economic conditions”. 3 Further, Mr Ward states:

“As part of the closing of the Port Beach site, we need to look at our staffing levels and make adjustments accordingly. There will be changes to where employees are based and possible redundancies.” 4

[16] I now turn to the position of Business Development Executive (BDE).

[17] The Employer leases significant warehouse space in Western Australia with its associated costs.

[18] At the time of creating the position of BDE, the Employer had approximately 10,000 square metres of vacant warehouse space. A key reason in creating the BDE position was to develop business to utilise the vacant warehouse space.

[19] On 23 March 2015, Mr Smith commenced full-time employment in the position of BDE.

[20] Mr Smith’s salary was $76,500 per annum, car allowance of $846.15 per fortnight and a mobile telephone allowance of $25 per fortnight.

[21] In his offer of employment, it states that the AWH Pty Ltd Staff Employee Collective Agreement 2009 (AWH Agreement) applies to Mr Smith’s employment. 5

[22] During the course of proceedings, the parties referred particularly to Clause 7 of the AWH Agreement which is entitled “Consultation regarding major workplace change”.

[23] On 8 April 2016, Mr Smith met with Mr Ward. At the meeting, Mr Smith was informed that the position of BDE was being abolished. It was acknowledged, at the meeting, that the Applicant would be on parental leave from 11 to 15 April 2016 inclusive. In view of parental leave, Mr Smith’s notice of termination of employment was rescheduled to commence on 18 April 2016.

[24] On 18 April 2016, Mr Smith returned to work and was provided with a letter from Mr Ward which confirmed their previous conversation on 8 April 2016 that the position of BDE was to be abolished on the cessation of his employment.

[25] Mr Smith’s employment ceased on 29 April 2016. Mr Smith received four (4) weeks severance pay.

RELEVANT STATUTORY FRAMEWORK

[26] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[27] The meaning of genuine redundancy is contained in s.389 of the FW Act as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”

[28] Shortly put, where it is found that a dismissal is a genuine redundancy, it is not an unfair dismissal.

CONSIDERATION

[29] The meaning of genuine redundancy in the FW Act has three statutory “tests”. They are as follows.

s.389(1)(a) - The person’s employer no longer required the person’s job to be performed by anyone because of changes in operational requirements of the employer’s enterprise

[30] The Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) provides guidance regarding changes to the operational requirements of an enterprise which will lead to a genuine redundancy. Paragraph 1547 reads:

“Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.”

[31] The Explanatory Memorandum provides examples of changes to the operational requirements of an enterprise which will lead to a genuine redundancy at paragraph 1548 of the Explanatory Memorandum. They are relevantly as follows:

“ the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.”

[32] Having considered the guidance provided by the Explanatory Memorandum, I find, on undisputed evidence, that the condition required in s.389(1)(a) of the FW Act has been met. The Employer no longer required the position occupied by Mr Smith to be performed by a discrete person because of changes in the operational requirements of the business.

[33] It is necessary to consider the remaining two “tests”.

s.389(1)(b) – Has the employer complied with any obligation in a modern award, or enterprise agreement that applied to the employee, to consult about the redundancy?

[34] The Applicant and AWH agree that the AWH Agreement applies to Mr Smith’s employment.

[35] Clause 7 of the AWH Agreement is as follows:

“7. CONSULTATION REGARDING MAJOR WORKPLACE CHANGE

7.1 Employer to notify

7.1.1 Where the employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representative or representatives, if any.

7.1.2 Significant effects include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this agreement allows for alteration of any of the matters referred to above, the alteration is deemed not to result in a major change.

7.2 Employer to discuss change

7.2.1 The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 7.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

7.2.2 The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 7.1.

7.2.3 For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the interests of the employer.”

[36] Mr Ward and Mr Smith met on 8 April 2016. During the meeting, Mr Ward informed Mr Smith that the “employer had made the decision to terminate my employment on the basis that my position was to be made redundant”. 6

[37] Mr Ward advised Mr Smith that although it was originally intended that his employment would end with two (2) weeks’ notice on 22 April 2016, in view of Mr Smith taking one week’s parental leave, his last day of employment would be 29 April 2016. Mr Smith’s two (2) weeks’ notice commenced on 15 April 2016. 7

[38] Both parties contested the duration of the meeting on 8 April 2016. Having heard both parties, I am satisfied it went for approximately 10 minutes. 8

[39] Both parties contested who arranged the meeting; that is not determinative of the test pursuant to s.389(1)(b) of the FW Act.

[40] Both parties agree that, as part of the meeting, Mr Ward advised Mr Smith that he could arrange a meeting with representatives of Signode Australia (a supplier business to AWH) who had indicated that it was looking for a Business Development Manager in Western Australia.

[41] While Mr Smith does not set out in his witness statement that he agreed to meet with Signode Australia representatives, he did so on 20 April 2016. I do not accept Mr Smith’s opinion that it was, “nothing more than a clayton’s meeting arranged by John Ward to appease himself”. 9 I am satisfied that it was nothing more or less than Mr Ward “opening a door” for Mr Smith, to which further employment may eventuate.

[42] Shortly after the meeting on 8 April 2016, Mr Smith emailed Mr Ward and confirmed his understanding of their discussion that his employment would end, in view of the BDE position being abolished. Further, “I will be finishing my employment on 29 April…we will talk again on Monday 18 April.” 10

[43] After his period of parental leave, Mr Smith returned to work on 18 April 2016. On the same day, he received a letter from Mr Ward confirming their previous conversation that Mr Smith’s employment would cease on 29 April 2016. At the conclusion of the correspondence, Mr Ward states, “if there is any matter arising from this letter that you wish to discuss please feel free to contact me”. 11

[44] After the meeting with the Signode Australia representatives, Mr Smith was not required to ‘work out” his notice period and his employment ended on 29 April 2016.

[45] Mr Smith’s evidence is that the Employer “failed to properly consult with me whatsoever about the major changes they were implementing in the workplace which includes my redundancy”. 12 Mr Smith asserts, in evidence, that the Employer:

• failed to provide him with written notification about all the changes including the nature of the changes proposed, the expected effects of the changes on employees including myself and any other matters likely to affect employees;



• failed to notify me that they had made a definite decision to introduce major changes that were likely to have significant effects on my employment;



• there was no notification of the proposed changes the Employer was planning to implement;



• as an affected employee, I should have been advised of the workplace changes to be implemented, the effects those changes were to have on me and the measures to avert or mitigate the adverse effects of the changes on me;



• at no time whatsoever was I provided with the opportunity to respond to the significant workplace changes namely my redundancy; and



• failed to advise me as to whether they were taking redeployment into consideration which I contend should have included the possibility of redeployment interstate. 13 (my emphasis)

[46] Mr Smith’s evidence and indeed his submissions are essentially a “slicing” of Clause 7 of the AWH Agreement regarding consultation with respect to major workplace change.

[47] Mr Smith has taken the abolition of his position of BDE and integrated into a clause which deals with an employer making a definite decision to introduce “major change in the workplace”.

[48] For the provisions in Clause 7 to become operative, it is necessary for the Employer to make a definite decision to introduce “major change”.

[49] Mr Smith did not draw the Commission’s attention to any definite decision made by the Employer to introduce “major change”.

[50] It is true that the Employer made a definite decision to consolidate its operations from three (3) sites into one. I am satisfied that this was a major change and appropriately attracts the provisions of Clause 7 of the AWH Agreement. With respect to the Rous Head operations, its closure was in or around October 2015. It is notable that Mr Smith was the contact person for the industry announcement of this decision. The closure of Rous Head operations was preceded by the closure of Port Beach in August 2015. In both those occasions, Mr Ward was not immediately an “affected employee”.

[51] If, as the Applicant submits, the decision to consolidate operations into one site was a “major change” decision, when Port Beach was closed, the Employer advised employees including Mr Smith that the Employer would need to look at staffing levels, make adjustments accordingly and there would be possible redundancies. 14 In general terms, I am unable to accept any submissions that Mr Smith was not aware of the major change or the expected effects of the consolidation of work sites.

[52] I now wish to turn to whether it was reasonable to conclude, on the balance of probabilities, that further redundancies, including the abolition of the BDE position, was a possibility due to the Employer’s need to reduce costs which included the decision to consolidate work sites.

[53] Unlike, I suspect other employees who were terminated on grounds of redundancy, Mr Smith had the benefit of being a member of the Employer’s Administration Committee. At those meetings, Mr Smith was regularly updated on the financial position of the Western Australian operations. In December 2015, the Western Australian operations missed budget by $300,000. In February 2016, the Western Australian operations missed budget by $200,000.

[54] The March 2016 Administration Committee meeting records:

“We have just completed the forecasts for the rest of this year and are not expected to meet budget unless we get additional clients…

…we are currently budgeting to lose $1.5k this financial year.” (my emphasis)

[55] Mr Smith states in his written witness statement that he “reserves his right” to give evidence orally at the hearing, matters not recorded at the Administration Committee meetings. At the hearing, he gave evidence which, obviously could not be tested, that Ms Clark, State Administration Manager, stated at the meeting on 13 January 2016, that there would be no more redundancies. Mr Smith infers that this should be relied upon – for what reason I am not sure. I find the evidence has no probative value, Mr Ward was not at the meeting and Mr Smith’s evidence could not be tested in the circumstances.

[56] In contrast, it would appear that the Finance Manager’s report in March 2016, provided the subtle comment that the Employer needed new clients if the FY16 financial position was not to deteriorate further. The strong inference is that further redundancies were a possibility.

[57] As I stated previously, Mr Smith has taken the global “major change” provision in his contract of employment and “localised” it to his circumstances. With respect to his circumstances, I am satisfied that when the Employer made the decision to consolidate its sites (major change) in August/October 2015, it did not notify him that the position of BDE may be abolished simply because it was not foreseen at the time. For that reason, the Employer did not have to set out measures to avert or mitigate the effect that major change would have upon Mr Smith at that particular time.

[58] However, it would appear that despite the cost saving measures, deteriorating financial conditions in Western Australia led to further positions being made redundant. I note in the period from 1 January to 29 April 2016, seven (7) employees had their employment terminated for reasons of redundancy. Excluding Mr Smith, a further five (5) ceased between 29 April and 30 June 2016 by way of redundancies.

[59] When Mr Smith commenced employment, the empty warehouse space was approximately 10,000 square metres. Mr Smith gave evidence that at the time his position was abolished 13 months later, the empty warehouse space was between 15,000 and 20,000 square metres. Mr Smith acknowledged that his job was to “sell warehouse space”. 15

[60] Mr Smith conceded, in evidence, that the two (2) other BDE roles in AWH were made redundant on or around 19 February 2016. 16

[61] If I accept the Applicant’s submission that the provisions of Clause 7 of the AWH agreement apply to the abolition of his position of BDE, what was the nature of the consultations from August 2015 when the Employer made the decision to cease operations at the Port Beach facility, to the time his position was abolished?

[62] The Applicant, in common with a number of applicants, asserts that the Employer failed to “properly consult with me”. 17

[63] The Employer did not consult with Mr Smith between August 2015 and March/April 2016 because the proposal to abolish the position was not a “live” issue. The abolition of the BDE position only became an “effect” in March/April 2016.

[64] Unlike other employees, Mr Smith, as a member of the Administration Committee, had the benefit of the entire landscape of the Employer’s Western Australian operations. He would have been aware of the deteriorating financial situation. He would have been aware of employees losing their jobs because of positions no longer being required. He would have been aware, I assume, of the increased volume of empty warehouse space.

[65] While I am required to consider, examine and have regard to the provisions of the consultation provisions in Clause 7 of the AWH Agreement, it would be improper, in my view, not to consider all the circumstances surrounding the “major change”.

[66] The Employer’s decision to introduce “major change” is shaped by the circumstances it faces; it is not a “point in time” exercise. The change and its effect continued, at least, for eight (8) months. Consultation is shaped by circumstances.

[67] In my view, Mr Smith has reshaped consultation after the event. Mr Smith has ignored the surrounding circumstances from August 2015, including the increasing warehouse empty space which was his job to reduce.

[68] Any aspect of consultation is open to criticism. The content and context of consultation will vary according to the circumstances – it is the circumstances I must consider – and not treat the matter as some sort of text book exercise.

[69] Having assessed the facts and circumstances, I am satisfied, with one exception considered below, that the purpose of Clause 7 of the AWH Agreement has been met. In my view, Mr Smith was adequately informed about the “major change” before the abolition of his position and the reasons for making the position redundant.

[70] In summary, if the provisions of Clause 7 of the AWH Agreement apply, I am satisfied, save one exception, it has been met.

s.389(2) – Was it reasonable in all the circumstances for Mr Smith to be redeployed within the Employer’s enterprise or associated entities (if any)?

[71] If the Commission finds, on the evidence, that a termination of employment is a case of genuine redundancy, that finding is statutory “negated”, if it was “reasonable in all the circumstances, for the person to be redeployed”.

[72] Section 392(2) of the FW Act could be described as the “exception rule”. Put shortly, it does not follow that a “genuine redundancy” is a “genuine redundancy” if the person can be redeployed into another position. For it to be a genuine redundancy, the Commission is required to find that it would be unreasonable, in all the circumstances, to redeploy the person affected by the abolition of his or her position, into another position.

[73] Obviously for a person to be redeployed, or not be redeployed, it is necessary in the first instance, to determine whether another position exists. I say “position” because that is consistent with the language used in the Explanatory Memorandum at paragraph 1552.

“1552 There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.” (my emphasis)

[74] For the example in paragraph 1552 to make logical sense, a position must be available (exist and be vacant) for which the employee can be redeployed into (if reasonable in all the circumstances).

[75] The Applicant concedes that the Employer was experiencing a downturn in its business and restructured its business. As part of that restructuring, positions were abolished and employees were terminated on the grounds of redundancy. The numbers speak for themselves. 18

[76] The Applicant draws the Commission’s attention to the Employer’s response to the initial application was that, “any business development activities in WA are being undertaken by the General Manager as part of his overall responsibilities” and “certain business development related tasks still exist”.

[77] In its Statement of Facts to the Commission, the Employer asserts “the General Manager of AWH WA took on some of the business development responsibilities as a small part of his role”. 19

[78] The Applicant asserts that the Employer’s statement of fact is contrary to its immediate response to the application and Mr Smith’s contention that Mr Ward advised him that, “he would be taking over all the duties associated with the Applicant’s job”. 20

[79] Clearly there is a difference between the parties as to whether all, or part, of the BDE job was transferred to Mr Ward.

[80] Having stated the Employer’s differing positions, the Applicant proceeds to assert that because Mr Ward had taken over “all the duties” of the BDE, the job of BDE still exists. For this proposition, Mr King relies upon Hamberger SDP in Kekeris v A Hartrodt Australia Pty Ltd [2010] FWA 674.

[81] Firstly, I prefer the evidence of Mr Ward that he has assumed some of the tasks and not all of the duties of the BDE. 21

[82] Secondly, the facts and circumstances are on “all fours” with the example in paragraph 1548 of the Explanatory Memorandum.

[83] I find, on the evidence, that the tasks and responsibilities of the BDE were distributed to other employees including Mr Ward. No discrete position of BDE exists either structurally or as a whole, but as part of Mr Ward’s position of General Manager South West Region and other employees.

[84] In his written witness statement, Mr Ward, truthfully in my view, does not state that in his meeting with Mr Smith on 8 April 2016, he discussed redeployment alternatives.

[85] In considering the absence of any statement by Mr Ward relating to the redeployment opportunities for Mr Smith, I am also mindful that Mr Ward gave oral evidence:

• of his discussion with Mr Tamplin concerning how many personnel would remain in the business 22;



• his lack of knowledge of any positions Mr Smith could be redeployed into 23;



• he did not put to Mr Smith the position of Business Development and Relationship Manager in Queensland 24;



• he took for granted that Mr Smith would not consider the position in Queensland 25; and



• his uncertain evidence regarding Mr Smith’s skill set.

[86] In summary, I consider the circumstances of the Employer’s position is best summed up by the following question and answer in Mr Ward’s cross examination:

“Mr Ward, to the best of your knowledge did anyone from AWH consider redeployment for Mr Smith?---Not to my knowledge.” 26

[87] When asked by Mr King, how this evidence could be reconciled with the Employer’s statement of fact that, “consideration was given to possible redeployment of the applicant within the employer’s operations” and “it was determined he [Mr Smith] was not suitably qualified for any roles within the organisation”, Mr Ward referred to a discussion he “would” have had with Mr Tamplin; I did not find this evidence convincing.

[88] In these circumstances, I am satisfied that the Employer failed to discuss with Mr Smith measures to “avert or mitigate” the adverse effect of the abolition of his position as BDE in Clause 7 of the AWH Agreement.

[89] In addition, I am not satisfied that the Employer applied itself diligently to determining whether Mr Smith could be redeployed into another position within the enterprise.

[90] The primary purpose, in my view, of s.389(2) of the FW Act, is that an employer should turn its mind to redeployment opportunities for employees who are about to lose their employment. In Mr Smith’s circumstance, there may have been a number of reasons why it would have been unreasonable to redeploy him into another position within the Employer’s enterprise. However, I am unable to reach such a finding on the inadequacy of the evidence to demonstrate that the Employer turned its mind to the issue.

[91] With respect to this “test” of a genuine redundancy, it appears that the Employer has, post redundancy, explained its position why, in all the circumstances, it would have been unreasonable to redeploy Mr Smith to another position within the AWH business; however, that discussion did not take place at the time of his dismissal.

[92] Notwithstanding my finding with respect to the Employer not meeting the provisions of s.389(2) of the FW Act, I do not accept entirely the evidence of Mr Smith regarding the reasonableness of being redeployed into the positions he suggested he could be redeployed into.

[93] Mr Smith’s evidence regarding s.389(2) of the FW Act, must take into account self-interest.

[94] Mr Smith’s self-interest was evident with respect to his evidence that he could have fulfilled the role of a number of positions, would have considered an interstate position with a salary of $30,000 less than he was currently earning and was prepared to “job share”. In my view, his evidence was best summarised when he stated that the “could have gone into…anything”. 27

[95] Rather than be measured with respect to redeployment, his evidence reached a crescendo in cross examination as follows:

“But did you expect us to make somebody else redundant to provide you with a position?---Why not?  You made me redundant.” 28

[96] Irrespective of the extremity of Mr Smith’s evidence, I find, for its own actions, the Employer’s evidence did not demonstrate that it gave, at the time of abolishing the BDE position, sufficient attention to whether he could be reasonably redeployed into another position. Accordingly, the provisions of s.389(2) of the FW Act have not been satisfied to make the Applicant’s dismissal a genuine redundancy.

CONCLUSION

[97] For the reasons set out above, I must dismiss the Employer’s jurisdictional objection that Mr Smith’s dismissal was a genuine redundancy pursuant to s.389 and not protected by the unfair dismissal provisions of the FW Act.

[98] As the dismissal was not a genuine redundancy, it is necessary, pursuant to s.385(b) of the FW Act to determine whether the dismissal was “harsh, unjust or unreasonable” taking into account the criteria in s.387 of the FW Act.

[99] My Associate will contact the parties to advise of a conference to progress the next steps in determining Mr Smith’s application.

COMMISSIONER

Appearances:

P King on behalf of the Applicant.

M Briggs on behalf of AWH Pty Ltd.

Hearing details:

2016:

Perth,

15 August.

 1   Exhibit R4 (2)

 2   Exhibit R4 (7)

 3   Exhibit R4 (5)

 4   Exhibit R4 (5)

 5   Exhibit R4 (7)

 6   Exhibit A7 (18)

 7   Exhibit A7 (19)

 8   Exhibit A7 (16)

 9   Exhibit A7 (32)

 10   Exhibit A7 Att 1

 11   Exhibit A7 Att 2

 12   Exhibit A7 (36)

 13   Exhibit A7 (36)

 14   Exhibit R4 (5)

 15   Transcript PN546 to PN548

 16   Transcript PN604 and PN605

 17   Exhibit A7 (36)

 18   Exhibit A1 (11)

 19   Exhibit R2 (18)

 20   Exhibit A1 (15)

 21   Transcript PN331 to PN336 and Exhibit R4(15)

 22   Transcript PN108

 23   Transcript PN131

 24   Transcript PN145

 25   Transcript PN163

 26   Transcript PN221

 27   Transcript PN490

 28   Transcript PN643

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