Mr Raghbir Gill v Jetstar Airways Pty Ltd
[2016] FWC 1472
•11 MARCH 2016
| [2016] FWC 1472 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 —Unfair dismissal
Mr Raghbir Gill
v
Jetstar Airways Pty Ltd
(U2015/10188)
COMMISSIONER CRIBB | MELBOURNE, 11 MARCH 2016 |
Application for relief from unfair dismissal.
[1] Mr Raghbir Gill (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Jetstar Airways Pty Ltd (Jetstar, the company, the Respondent).
[2] The application was listed for conciliation on 1 October 2015, but was not settled. There was an arbitration hearing on 3 and 4 December 2015. Mr Gill gave evidence as did Mr S Purvinas, Federal Secretary of the Australian Licenced Aircraft Engineers Association (ALAEA) in support of the Applicant. Mr R Berger, Northern Regional Maintenance Manager; Mr D Lau, Head of Engineering and Mr P Cramer, formerly Senior Manager - Aircraft Maintenance Organisation with Jetstar, gave evidence for the company.
[3] Mr Gill was represented by Mr D Victory, solicitor and Jetstar by Mr A Pollock, of counsel.
1. Introduction
[4] On behalf of Mr Gill, it was stated that, throughout the investigation conducted by Jetstar, Mr Gill had acknowledged that the conduct took place. 1 It was also indicated that Mr Gill admitted that he had done the wrong thing.2 However, Mr Victory was hesitant to concede that there was a valid reason for Mr Gill’s dismissal. This was because the reason for the dismissal still needed to be assessed against the consequences of the dismissal on Mr Gill.3
[5] It was also submitted on behalf of Mr Gill that the dismissal was particularly harsh and disproportionate to the conduct engaged in by Mr Gill. This was on the basis of a number of mitigating circumstances which were said to mitigate the seriousness of Mr Gill’s conduct and which pointed to the harshness of the dismissal. 4
[6] However, the procedural aspects of the dismissal were not challenged by Mr Gill. 5
[7] The focus of the evidence and of the submissions was on the question of whether or not the dismissal of Mr Gill was harsh and also on remedy, should the Fair Work Commission (Commission) find that the dismissal was harsh. As it was common ground that the issue of harshness was the key issue to be determined by the Commission, the decision will focus primarily on this question. However, the other legislative requirements, including whether there was a valid reason, will also be dealt with.
2. Legislative requirements
[8] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[9] I will consider each of the criteria in turn.
2(a) Section 387(a) - a valid reason for the dismissal?
[10] Mr Gill commenced employment with Jetstar in November 2010, as a licensed aircraft maintenance engineer (LAME) at Avalon airport.
[11] It was not disputed that, on 5 July 2015, Mr Gill commenced work at 4:30am. The Jetstar van that Mr Gill normally used to perform his duties was unavailable as it had broken down. Mr Gill was given a tow tug for the day. At around midday, Mr Gill became very hungry and made the decision to drive the tow tug out of the security gate onto a public road to the nearby BP service station to get some food. 6
[12] Following an investigation process into the incident, Mr Gill was terminated on 3 August 2015, with immediate effect. Mr Gill was advised that the investigation had substantiated that he had driven a tow motor on a public road to a nearby service station. The letter of termination stated that the tow motor was not registered for use, or permitted to be used, on a public road. In addition, it was stated that the tow motor was not equipped with adequate safety protections for use in an uncontrolled environment such as an unsealed road. Mr Gill’s employment was summarily terminated on the grounds of serious misconduct. 7 Further, Mr Gill was notified that his conduct had breached both the Jetstar and Qantas Group policies, including a breach of the Cardinal Rules under the Qantas Group Standards of Conduct Policy.8
Considerations and conclusions
[13] In a letter dated 10 July 2015, Jetstar advised Mr Gill that it had received an allegation about his conduct and that a response to the allegation was required. The allegation was set out in the following terms:
“1. On Sunday, 5 July 2015, you drove a Jetstar–owned tow motor through the security gate at Avalon, on to a public road to a service station near Avalon Airport. Further, the tow motor was not registered for use, or permitted to be used, on public roads.” 9
[14] The letter also advised that, if Mr Gill’s alleged conduct was substantiated, Mr Gill may be considered in breach of sections of the Qantas Group Standards of Conduct Policy and the Qantas Group Safety and Health Policy. 10
[15] On 22 July 2015, Mr Gill was advised by the company that the allegation had been substantiated and that he had breached the relevant sections of the Qantas Group Standards of Conduct Policy and the Qantas Group Safety and Health Policy. The letter also stated that Mr Gill’s substantiated conduct amounted to serious misconduct. Mr Gill was summarily dismissed on the grounds of serious misconduct on 3 August 2015. 11
[16] As set out in paragraph [11] above, it was an agreed fact that, on 5 July 2015, Mr Gill drove a company tow motor outside of Avalon Airport and on a public road to a nearby service station. It was also common ground that the tow motor was not registered for use, or permitted to be used, on public roads. Mr Gill confirmed to the company that this incident did occur and that he was guilty of breaching Qantas Group policies. 12
[17] Therefore, on the basis of the material before me, I find that there was a valid reason for Mr Gill’s dismissal. This is that Mr Gill drove an unregistered vehicle on a public road and that the vehicle he drove was not designed to be driven on a public road (was not fit for purpose) and was not capable of being registered. 13 In driving an unregistered vehicle on a public road, which was not fit for purpose, Mr Gill breached the Qantas Group Standards of Conduct Policy and the Qantas Group Safety and Health Policy.
2(b) Section 387(b) - notified of the reason
[18] It was common ground that Mr Gill was notified of the allegation and the potential breaches of the Jetstar and/or Qantas policies, in a letter dated 10 July 2015. 14
2(c)Section 387(c) - opportunity to respond
[19] It was agreed that Mr Gill was given an opportunity to respond in writing to the allegation. Mr Gill did so on 14 July 2015 and also on 22 July 2015. 15 At a meeting held on 24 July 2015, Mr Gill was given an opportunity to respond in person to the allegation. Further, an appeal of the decision to terminate his employment was lodged by Mr Gill on 4 August 2015. The appeal was dismissed by Jetstar on 13 August 2015.16
2(d) Section 387(d) - support person
[20] Mr Purvinas, from the ALAEA, attended the meetings on 17 July and 24 July 2015 whilst Mr B Stewart, from the ALAEA, attended the meeting on 3 August 2015.
2(f) Section 387(e) - warnings related to unsatisfactory performance
[21] As the dismissal was for serious misconduct, this section is not relevant in this matter.
2(g) Sections 387(f) and (g) - size of the employer and specialist Human Resources
[22] Jetstar is a substantial employer with dedicated Human Resource specialists.
2(h) Section 387(h) - any other relevant matters
(i) Submissions and evidence - Mr Gill
Submissions
[23] On behalf of Mr Gill, it was submitted that the dismissal was harsh and disproportionate to the gravity of the conduct. It was stated that it was not being said that Mr Gill had done nothing wrong. Rather, it was that, when all of the relevant factors were taken into account, the sanction of dismissal is harsh.
[24] The relevant factors which, it was argued, should be taken into account, are:
● Mr Gill’s age. It was stated that Mr Gill is 60 years old and, except for a period of three years, has only ever worked in the aircraft maintenance industry. 17
● Mr Gill has had a career spanning more than 30 years in the aircraft maintenance industry and has been an exemplary employee. 18
● Mr Gill had approximately 4 ½ years of unblemished service with the company with no issues raised in relation to his work performance during that time. 19
● It is unlikely that Mr Gill will be able to find comparable employment in either Australia or overseas. This is due to his age and to the current difficulties of finding a job in the industry. Mr Purvinas’ evidence was highlighted in this regard. 20
● Mr Gill’s skills as a licensed aircraft engineer are not easily transferable to other industries as it is a very specialised job. 21
● Mr Gill is the sole breadwinner in the family, supporting his wife and child. Mr Gill’s wife does not work and Mr Gill has a mortgage of $380,000. 22
● Mr Gill was contrite and acknowledged immediately that the event had occurred. 23
● Mr Gill believed that he could not obtain lunch on the premises at the relevant time. 24
● Other employees who have breached safety protocols had not been dismissed. 25
● As part of his duties as an engineer, Mr Gill has driven, or been required to drive, on an unsealed road with potholes - to get to the Jetstar office. Therefore, the Commission should take into account that many of the dangers the company alluded to were equally applicable when Mr Gill drove the tow tug within the confines of the airport. 26
● There were no cars on the road when Mr Gill drove to the service station and Mr Gill could see for kilometres. Mr Gill wore a seatbelt and his hi-vis uniform at the time he drove the tow tug. 27
● It was an unusual circumstance in that the work vehicle had broken down and Mr Gill had not been provided with a replacement. 28
● There was no physical damage caused and from the evidence, it appeared that the particular road that Mr Gill drove on is only used to get to and from the airport. It could therefore be inferred that it is not a busy road or one that is commonly used. 29
[25] In response to Jetstar’s contention that Mr Gill had breached a Cardinal Rule of safety because he recklessly drove a Jetstar vehicle for an unauthorised purpose, it was stated that the evidence before the Commission is that there was no express purpose provided to him at the time he was given the vehicle to use. It was stated also that the evidence was that Mr Gill had received no particular training in relation to this vehicle. Further, the evidence was said to be that there is nowhere where an employee can go to find out what is an unauthorised or an authorised purpose for this vehicle. 30 In making these submissions, Mr Victory was at pains to say that, in putting these factors forward, Mr Gill was not saying that he did not do the wrong thing. The factors simply go to mitigation of his misconduct which the Commission should take into account when weighing up the gravity of the misconduct.31
Was Mr Gill’s conduct deliberate and intentional?
[26] It was stated that there was a dispute between the parties over whether or not there had been a conscious disregard for the rules by Mr Gill. Mr Gill contended that there had not been a conscious disregard for the rules. 32 Mr Victory argued that there was no evidence before the Commission to the effect that, the fact that Mr Gill had done it, meant that he must have consciously disregarded the rules. It was stated that it was the employer who has elevated the issue of conscious wrongdoing to a level which requires the Commission to decide about whether or not there was conscious wrongdoing. It was contended that, if the Commission found that there was not conscious wrongdoing, that significantly mitigated the misconduct or the reason for the valid reason. If the Commission found that there was not a conscious disregard for the rules, then the Commission should be persuaded that, taking into account all of the other factors, the effect of the dismissal on Mr Gill and his family is harsh.33
[27] In relation to the issue of whether there had been a conscious disregard for the rules, it was Mr Gill’s evidence that:
● Prior to 5 July 2015, over his entire career, he had never driven a tow tug outside of an airport. 34
● He had never been told by anyone at Jetstar that it was okay to drive a tug outside an airport. 35
He used his own transport to get to and from work but once at work, he never used his own transport. 36 He had previously always had registered transport whilst at work.37
● When he was going to get his lunch, he did not think about using his own car. Going to get his lunch was the only thing on his mind and he was hungry. 38 He was very hungry and needed to get his lunch before the next plane arrived at 2pm. He did not think about the safety regulations - only lunch.39
● From the hanger, it would have taken about 7 minutes to drive the tug motor back to the terminal. The hangars are very close to the exit gate on the far side of the airport and so he exited the airport using the gate near the hangars. 40
● When he returned from getting his lunch, at that point in time, it did not occur to him that he had done anything wrong. 41
● In his letter in response to the allegations, dated 14 July 2015, he had confirmed that the incident had occurred and that he was guilty of breaching the Qantas Group policies (Standards of Conduct and the Health and Safety). 42
● In his letter, Mr Gill said that, after lengthy discussions with Mr Purvinas, it had become clear as to why the incident was such a serious offence. Mr Gill confirmed that Mr Purvinas had helped him understand that what he had done was dangerous. 43
● At the time of the incident, he did not think it was as dangerous as it turned out to be. 44
● After speaking with Mr Purvinas, he had realised some of the potential consequences of his actions. 45
● He had agreed that his actions could not be excused because his conduct had critical safety risks. 46
● He confirmed that, in the 14 July 2015 letter, he had said that, on reflection, he should have used his personal vehicle to purchase his lunch. 47
(ii) Submissions and evidence - Jetstar
Submissions
[28] On the other hand, it was submitted by Jetstar that, as the incident involved serious misconduct warranting summary dismissal, there was a valid reason for Mr Gill’s dismissal. Given the serious misconduct and the absence of procedural defects, Jetstar argued that the Commission would need to be satisfied of significant mitigating factors in order to disturb Jetstar’s decision to dismiss Mr Gill. It was stated that none of the mitigating factors put forward by Mr Gill rise to that level. 48
[29] It was stated that Mr Gill’s conduct was serious misconduct. Given the serious risk to his own health and safety and potentially the health and safety of others, Mr Gill was said to have acted contrary to his contract of employment which required him to comply with directions around safety. 49
[30] The company submitted that Mr Gill’s actions constituted a serious safety breach due also to the role that Mr Gill performed. It was stated that the evidence clearly showed that the role of a LAME is critically important in terms of safety. Critical decisions were said to be made by LAME’s and so the incident called into focus Mr Gill’s judgement. 50
[31] It was agreed that Mr Gill had had a previously unblemished record in the performance of his engineering duties. However, it was Jetstar’s view that the incident disclosed a course of behaviour. This was said to be because it was not a momentary error/a split second decision. Rather, the course of conduct was stated to have occurred over a period of half an hour. 51 The company argued that, given that Mr Gill’s role required him to be beyond reproach from a safety standpoint, the “light bulb moment” really should have gone off.52 It was submitted that the light bulb had not gone off despite the conduct occurring over a long period of time; it was not an emergency and there was another vehicle he could have used - his own personal vehicle which was a very short stroll away.53
[32] If Mr Gill’s evidence was accepted, Jetstar argued that there were two ways of looking at it. The first one was that Mr Gill just did not turn his mind to it. It was argued that Mr Gill’s evidence on this point should not be accepted. The second option was described as taking Mr Gill’s evidence at its highest - that he just did not turn his mind to it. This was said to not assist Mr Gill’s case because it raised broader issues of his judgement on safety issues. If it was found that Mr Gill had a temporary blind spot, the company submitted that this was not something which was a mitigating factor. Rather, it was something which called into question the performance of his actual role. 54
[33] The Commission was referred to the Full Bench decision in Toms v Harbour City Ferries Pty Limited 55 (Toms) as an example of where some of the mitigating factors raised for harshness purposes, ultimately played second fiddle to the safety breach and what it meant for the performance of the employee’s role. Jetstar submitted that the two cases were similar in that both Jetstar and Harbour City have statutory obligations from a safety standpoint and also within their respective industries. It was said that each organisation has to be beyond reproach when it comes to safety.56 It was also highlighted that the Full Bench found that some of the mitigation factors were irrelevant as its view was that the employer required a high level of compliance with the policy, without discussion or variation.57
[34] With respect to Mr Gill’s age and length of service, it was contended by Jetstar that Mr Gill was employed for four years and nine months. Except for an allegedly vexatious complaint matter that remained unresolved at the time of his dismissal, it was stated that Mr Gill’s employment record was otherwise unblemished. Mr Gill’s length of service was said to be not unusually long and so should not supervene the employee and public safety considerations in relation to Mr Gill’s conduct. 58
[35] It was stated that, despite Mr Gill’s submissions about his age and poor job prospects, Mr Gill had obtained employment as a LAME on 30 October 2015. 59
Was Mr Gill’s conduct deliberate and intentional?
[36] With respect to the issue of differential treatment, it was contended that none of the examples that have been provided to the Commission (the Coolangatta and Newcastle incidents) rose to the level of the required apples with apples comparison criteria. It was stated that no one has disputed the seriousness of the potential consequences of those incidents. 60 The Commission was taken to authorities in relation to the correct application of the apples with apples comparison principle. This included Mihajlovski v I R Cootes Pty Ltd61 (Mihajlovski) where the comparison principle was discussed.62
[37] In relation to the difference between the Coolangatta and Newcastle incidents and that of Mr Gill’s case, Mr Cramer’s evidence was said to best sum it up. It was stated that Mr Cramer’s view was that it was the difference between intentional and unintentional behaviour and the distinction between errors and reckless behaviour. This was said to be important given the Just Culture policy of Jetstar which says that errors are not to be dealt with in a disciplinary fashion but that wilful or reckless behaviour is not to be tolerated. Mr Pollock stated that, when each of the company’s witnesses were taken through the Just Culture matrix, they had all landed on the issue of recklessness. This was said to be the critical distinction between the Coolangatta and Newcastle incidents and the driver in the Mihajlovski case ie. the cases were not factually on all fours and the outcome was different based on the industry in which they operated. 63 It was Jetstar’s view that Mr Gill’s conduct was deliberate behaviour by him.64
[38] With regard to the Just Culture algorithm or matrix and “consciously disregarded the substantial and unjustifiable risk”, it was stated that it cannot be that the only way in which this is triggered is if the employee says they are going to do a particular act. The employer cannot reach into the mind of the employee in circumstances where they are not forthcoming. Rather, “consciously and deliberately” is engaged when an employee, trained in the requirements of the Standards of Conduct Policy that he was not permitted to drive a vehicle for an unauthorised purpose, engages in that behaviour. The company stated that none of the witnesses had seen an example of a tow tug being driven on a public road. 65
[39] Therefore, in these circumstances, it was argued that it was open to the employer to infer that consciousness. If this type of procedure was interpreted in any other way, it was contended that it would be unworkable as it would become the last stop for any kind of disciplinary action. 66
Evidence
[40] During their evidence, the company’s witnesses expressed the view that Mr Gill’s conduct was deliberate and intentional. Mr Lau, who considered Mr Gill’s appeal, believed that Mr Gill had consciously disregarded the rules. The evidence of this was said to be that Mr Gill had other alternatives to use to go and get his lunch and the fact that he drove the tow tug off the base was said to demonstrate that Mr Gill had consciously disregarded the rules. 67 It was also Mr Lau’s evidence that it defied common sense and logic that Mr Gill did not realise that it was highly inappropriate for a tow motor to be driven on a public road.68 Finally, Mr Lau stated that Mr Gill had disregarded the Cardinal Rule of unauthorised use of a vehicle which meant that he had engaged in reckless and risky behaviour.69
[41] Mr Berger conducted the investigation into the incident and then gave all of his findings to Mr Cramer. It was Mr Berger’s evidence that:
● The Just Culture policy recognises that, even with the best systems and training in the world, there can still be human error because human beings are fallible. 70
● The Just Culture policy distinguishes between conduct that is wilful (deliberately engaged in) conduct and conduct that is a mistake. 71
● It was his view that Mr Gill consciously disregarded a substantial and unjustifiable risk. 72 The act of driving a tow tug onto a public road had a high level of risk that was reckless. He could not answer what Mr Gill was thinking at the time.73
● It was his view that Mr Gill had consciously disregarded the risk. 74 That is, Mr Gill made a conscious decision to disregard the risk that came with driving the tow tug to get his lunch.75
● It was his view that Mr Gill’s experience in the industry would have highlighted to him that driving a tow tug on a public road was probably the wrong thing to do. 76
● He had no direct evidence that Mr Gill had consciously made a decision to disregard the rules. He had inferred that from what had happened. His inference was based on the safety policy and Just Culture policies which were part of Jetstar’s DNA and which staff were all aware of. 77
● During the meeting, Mr Gill did not appear remorseful for what he had done. He did not offer an apology during the meeting on 17 July 2015. 78
● Mr Gill did express remorse in his letter of 14 July 2015. 79
● Mr Gill broke one of the Cardinal Rules which prohibited the use of any vehicle or equipment unless authorised or trained to operate. It was stated that the tow tug was not authorised to be used for non work person purposes (this was not in the policy). 80
[42] Mr Cramer was the senior manager who made the decision to dismiss Mr Gill. During his evidence, Mr Cramer stated that:
● He does not accept that Mr Gill did not know that it was wrong to drive the tow tug on a public road. This was because there is enough training provided for employees to understand what Jetstar’s safety standards are. The Cardinal Rules were said to be quite well known throughout the organisation and were part of the DNA of Jetstar’s culture. 81
● In the Cardinal Rules, it says that you are not to use a vehicle for unintended purposes. It was stated that it is known that you cannot drive a tug outside of an airport as it is not registered and is not roadworthy. 82 It was stated that it is authorised to drive a tow tug around the inside of the airport.83
● It was a reckless act that had endangered Mr Gill’s life, the safety of members of the public and Jetstar’s reputation. 84 It was a very bad judgement call by Mr Gill caused solely by his desire to get his lunch.85
● He had “never seen anything like that in 25 years such a blatant - you know, for a personal errand basically.” 86
● It was his view that Mr Gill’s actions were intentional in that Mr Gill knew that he was going to get his lunch. Mr Gill made the decision knowing that the tow target was not registered and was not fit for purpose to drive on an open road. 87
● It was a difficult decision but, as a senior manager, he had to be satisfied of the safety of the flying public and the staff. He could not be satisfied in his mind that, as it was such an intentional act, it would not happen again in that Mr Gill would import that disregard for the basics back into his engineering duties. This was on the basis that the company relied on the engineers for their decision-making processes. If Mr Gill could make a decision like that - to drive a tug outside of the airport, he could not be confident in Mr Gill’s work as a LAME. 88
● It was said to be such a basic thing – the tow tug should not have been driven outside of the airport. For Mr Gill had to have made the decision to do that - he could not comprehend that someone would do that. 89
● He could not get past the fact that Mr Gill was willing to break a safety rule like that in the context of it being ingrained in Jetstar’s culture where employees have had the training. It was stated that people know that, if you break one of the Cardinal Rules, it could result in dismissal. 90
● The Just Culture policy recognises that human error does occur. 91 Jetstar has an open safety reporting culture for both maintenance errors and non-maintenance errors.92
Considerations and conclusions – was the conduct was deliberate and intentional
[43] I do not accept that Mr Gill would not have known that he should not have driven the tow tug on a public road. It may not have been explicitly set down that tow tugs should only be driven airside but it is reasonable to assume that he understood that, particularly given his 30 plus years in the industry.
[44] However, I have not been persuaded that Mr Gill intentionally or deliberately sought to break the company’s safety rules or had a conscious disregard for the safety rules. Mr Gill’s evidence, that all he was thinking about was getting his lunch and that he did not think about the safety regulations, is accepted. Mr Gill’s evidence was that he was absolutely focused on getting lunch (he had started work at 4:30am and this was 12 noon and he had not had a break). This was in the context of the situation not being the normal situation. This was because it was usual for a Jetstar van to be available.
[45] It is apparent that Mr Gill, in driving the tow tug on a public road, did not consider the ramifications or consequences of doing that. Mr Gill seems to have had a blind spot about the consequences of taking the tow tug to get his lunch. The evidence is that it took the conversation with Mr Purvinas for Mr Gill to understand the consequences of his actions. It was a grave error of judgement. Mr Gill’s actions were ill judged and without thought as to the consequences but were not consciously or knowingly or deliberately taken so as to contravene the company’s safety and other policies.
[46] Further, there is no evidence before me that there is anything in Mr Gill’s work history over the past 30 or so years, which would have signalled that he was likely to breach the company’s safety requirements. In addition, there is no evidence to support the contention that this was anything other than a one-off incident.
[47] Therefore, I find that Mr Gill’s decision to drive a tow tug to get his lunch was not a deliberate decision made or a conscious disregard by Mr Gill to contravene the company’s safety and other policies. Rather, Mr Gill’s focus was on getting his lunch because he was hungry and he gave no thought to the consequences of his decision.
Financial consequences
[48] The evidence is accepted that the financial consequences of Mr Gill’s dismissal have been severe. Mr Gill stated that he had a mortgage of $380,000 and that he was the sole breadwinner of the family, supporting his wife (who does not work) and his child.
Age and future employment prospects
[49] Mr Gill is 60 years of age and it was contended that, because of his age, he would find it difficult to obtain another position as a LAME. As well, it was stated that Mr Gill has specialised skills and knowledge which were not easily transferable to other industries. In addition, it was argued that, given the current state of the aircraft maintenance industry, Mr Gill’s future employment prospects were bleak.
[50] In response to the latter contention, Jetstar pointed to the fact that Mr Gill had secured alternative employment as a LAME by 30 October 2015. It was therefore argued that this particular mitigation factor was no longer applicable.
[51] The evidence before the Commission was that Mr Gill had obtained casual temporary work in Brisbane through a labour hire company, Aviation Labour Group, which commenced on 28 October 2015. 93 Mr Gill worked in Brisbane from 28 October 2015 until 29 November 2015 and then from 10 December 2015 until 31 December 2015.94
[52] On the basis of Mr Gill’s evidence, the work that he has been able to obtain is of a temporary nature and does not appear to be necessarily ongoing. It does not detract, in my view, from the evidence before me that, due to Mr Gill’s age and the state of the aircraft maintenance industry, Mr Gill has poor prospects of obtaining comparable alternative employment.
Unblemished record
[53] It was common ground that Mr Gill had an unblemished record during his employment with Jetstar.
Differential treatment
[54] It was argued on behalf of Mr Gill that other employees who have breached safety protocols have not been dismissed. This was on the basis of a number of serious safety incidents which did not result in the dismissal of those concerned. It was contended that the incidents highlighted, on behalf of Mr Gill, are examples of where LAMEs have made significant mistakes that could have had serious consequences. However, the employees involved continue to work for the company and the company continues to have trust and confidence in them. 95
[55] Jetstar disagreed that there had been differential treatment between the employees involved in these incidents and Mr Gill. The chief bases on which the safety incidents were distinguished from Mr Gill’s case were that the other incidents related to aircraft maintenance errors (i.e. during performance of work duties) and that they were unintentional maintenance errors and not intentional breaches of the safety rules.
[56] Mr Purvinas gave extensive evidence in relation to a number of incidents, in particular an incident at Coolangatta Airport (Coolangatta incident) and an incident at Newcastle Airport (Newcastle incident). The company’s witnesses also gave evidence in relation to these incidents.
Mr Purvinas
[57] Mr Purvinas gave evidence, from his position as Federal Secretary of the ALAEA, about a number of breaches of safety protocol and Qantas Group Standards of Conduct policies.
[58] In relation to the Coolangatta incident in July 2015, it was Mr Purvinas’ evidence that:
● An engineer signed off that he had certified an aeroplane as fit to fly when he had not properly undertaken the mandatory checks. The engineer concerned admitted that he had not carried out a specific checked to determine whether an engine oil cap had been fitted. However, the engineer had certified paperwork declaring that the check had been completed. On its way to Japan, the plane had to make an unscheduled stop in Cairns because the plane lost oil at a rapid rate. Jetstar was said to have been extremely lucky that the engineer had checked one of the engines and had the cap fitted because, if it had happened on both engines, it would have resulted in a very dire situation in flight. The failure of the engineer to have checked one of the oil caps and then to have certified that he had, was said to have jeopardised the lives of about 300 people who were on the aircraft. 96
● It was stated that the engineer came out and had owned up to it. His punishment was that he would make a video and show other people how not to make the mistake. 97
● It was agreed that the engineer’s purpose was not to cause harm but Mr Purvinas disagreed that the engineer had not knowingly caused harm. 98
● He disagreed that coaching the employee because it was at risk behaviour was the appropriate outcome. 99
● The employee concerned was not dismissed. 100
● It was his view that the failure of the engineer to have done a check properly and then to have signed it off was a far more serious breach or mistake than that of Mr Gill’s. 101 The consequences of the engineer’s mistake could have been people losing their lives.102
[59] With respect to the Newcastle incident, in June 2014, Mr Purvinas stated that:
● In this incident, the main landing gear was not safetied so that, when the engineers were testing the nose landing gear, the main landing gears swung up as well and missed an apprentice by 12 inches. 103
● The outcome of the investigation into this incident was that it was found that the engineer had breached the Qantas Group Standards of Conduct Policy (Cardinal Rules) and the Qantas Group Safety and Health policy. A formal warning was placed on the employee’s file. 104
● The consequences of this event was said to be that it came very close to somebody being crushed and killed. 105
● Mr Purvinas was not involved in the investigation of this incident. 106
[60] In terms of the incident at Sydney in 2012, regarding two engineers, one of whom climbed up on a ladder on top of an elevated work platform, Mr Purvinas indicated that he had discussed this incident. 107 He stated that the second engineer took photographs of the first engineer using the ladder on top of the stand and then reported to management. This was without advising the first engineer that he had taken the photos or that he should work in a safe manner.108 It was indicated that neither engineer was dismissed as a result of this incident.109
[61] Further, Mr Purvinas stated that he was also aware of another incident in Sydney in 2013, where an engineer was involved in an incident where he breached many Qantas Group procedures, including the Standards of Conduct Policy, by verbally abusing another staff member. It was stated that the other staff member was so aggrieved by the abuse, that it required her to leave the workplace distressed. The engineer wrote a written apology but his employment was not terminated. 110
[62] Finally, in relation to an incident in Melbourne in 2015 when a Qantas manager had placed pressure on a group of engineers to depart an aircraft that had a defect which was a fire hazard, without the hazard being isolated or fixed, Mr Purvinas explained that he had acted on his member’s behalf. It was stated that he had sought that the Qantas Group took appropriate action against the manager. The manager in question was said to not have been dismissed. 111 Mr Purvinas indicated that he had not spoken to anyone at Jetstar about this incident.112
Mr Berger
[63] It was Mr Berger’s evidence that:
● He was aware of the Coolangatta incident in his role as a member of the management group. 113
● The Coolangatta incident was a very serious incident with potentially catastrophic consequences. 114
● He confirmed that the employee concerned continues to be employed by Jetstar and that Jetstar still has trust and confidence in that employee. 115
● On the basis of the recommendation in the investigation report, it seemed that no disciplinary action was taken in relation to the particular engineer involved. 116
● If Mr Gill had had an accident, he could have hurt himself or others. If the engine on the other side of the Boeing 787 had not kept going, there are more people on a plane than would have been involved with Mr Gill on a tug. 117
● The difference between the Coolangatta incident and Mr Gill’s incident was the recklessness of Mr Gill’s conduct. 118
● He was aware of the verbal abuse incident but was not involved in the investigation or the finer details. He agreed that the employee concerned was not dismissed. He said that Jetstar still had trust and confidence in that employee. 119
● He distinguished between the verbal abuse case and Mr Gill’s on the basis the verbal abuse was a spur of the moment thing which was different to Mr Gill’s conduct. 120 It was his view that the two events were quite different.121
● In relation to the Newcastle incident, it was agreed that it was a very serious incident. 122 It was stated that he was not familiar with the incident.123 It was confirmed that the letter indicated that the employee concerned was given a formal warning.124
Mr Cramer
[64] It was Mr Cramer’s evidence that:
● He was familiar with the Coolangatta incident. 125
● He described the incident as a maintenance error. It was stated that there are very specific procedures around maintenance errors which protect the just culture which is an open reporting culture where errors are openly reported so that the company has an opportunity to investigate them. No disciplinary action occurs in relation to maintenance errors. 126
● The difference between maintenance errors and Mr Gill’s conduct was that Mr Gill’s incident was a safety breach and was not involved in the course of maintenance. It concerned Mr Gill running an errand to get some lunch which was very different from an employee missing a process step whilst performing their maintenance duties. 127
● The employee who ticked the box to signify that he had actually checked that it was fitted correctly- that was said to not be right. It was agreed that it was a conscious decision of that employee. 128
● Jetstar continue to employ this employee and so continue to have trust and confidence in the employee. 129
● With respect to the Newcastle incident, Mr Cramer became involved with it during the appeal process and so was familiar with the incident. 130
● It was agreed that it was a pretty serious incident which had potentially exposed an inexperienced employee to the risk of serious injury or death. 131
● It was confirmed that Jetstar continues to employ the engineer concerned and that the company continues to have trust and confidence in the engineer. A formal warning was placed on his file. 132
Considerations and conclusions – differential treatment
[65] Having considered all of the evidence and submissions in relation to this issue, I have been persuaded to take account of the seemingly different treatment of the employees involved in the Coolangatta and Newcastle incidents compared with Mr Gill. This is on the basis that, in assessing whether or not a dismissal is harsh, account needs to also be taken of the potential consequences of the conduct in question. This is in addition to whether or not the conduct was intentional or unintentional.
[66] In terms of the potential consequences of the maintenance errors made in the Coolangatta and Newcastle incidents, it would seem that they could have been far more serious than the potential consequences of Mr Gill having an accident in the tug. I agree with Mr Berger’s assessment about the Coolangatta incident, that there were more people on the plane to Japan than would have been involved with Mr Gill on a tug. With respect to the Newcastle incident, it is clear that a potential consequence was the potential crushing and killing of the apprentice.
[67] All three incidents (Coolangatta, Newcastle and Mr Gill’s) were serious incidents yet none of the engineers involved were dismissed, with the exception of Mr Gill. Given that the potential consequences, particularly of the Coolangatta incident, were far more serious and the potential consequences of Mr Gill’s actions, it would seem that, on this measure, there was differential treatment of Mr Gill compared with the engineers involved in the Coolangatta and Newcastle incidents.
[68] Therefore, for these reasons, the differential treatment of Mr Gill, in a situation where the potential consequences of the other engineers’ actions were far more serious than in relation to Mr Gill’s actions, will be taken into account as a relevant factor.
Considerations and conclusions – any other relevant factors
[69] On the basis of paragraphs [23] to [68] above, in relation to any other relevant matters (section 387(h)), account will be taken of Mr Gill’s age; the financial consequences of the dismissal on Mr Gill and his family; his likely poor prospects of success in obtaining another ongoing position as a LAME; the finding that Mr Gill’s actions were not deliberate or intentional or a conscious disregard for the safety rules but rather that Mr Gill was not consciously aware of the ramifications of his decision at the time; his previously unblemished record with Jetstar and the seemingly differential treatment of Mr Gill compared with employees involved, particularly, in the Coolangatta incident.
Conclusion
[70] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387, I determine that Mr Gill’s dismissal was harsh.
[71] On the one hand, there was a valid reason for Mr Gill’s dismissal. This was that Mr Gill drove an unregistered vehicle on a public road and that the vehicle he drove was not fit for purpose. On the other hand, Mr Gill’s decision to drive the tow tug outside of the airport, was not deliberate or intentional or a conscious disregard of the safety rules in that Mr Gill was not consciously aware of the ramifications of his decision. Further, because of his age (60 years old) and the current state of the aircraft maintenance industry, Mr Gill’s prospects of finding comparable alternative employment are poor. The financial consequences of the dismissal on Mr Gill and his family have been severe due to his mortgage liabilities. Further, Mr Gill had an unblemished record prior to the incident and Mr Gill was treated differently compared with other employees.
[72] In balancing all of these factors, I find that Mr Gill’s dismissal was harsh.
[73] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Gill was unfairly dismissed.
REMEDY
[74] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[75] With respect to the requirements of section 390, I am satisfied that Mr Gill was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Gill has made an application under section 394 of the Act (section 390(2)).
[76] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
[77] In this matter, reinstatement was actively sought by Mr Gill and equally actively resisted by the company. On behalf of Mr Gill, it was submitted that the company’s arguments regarding a loss of trust and confidence should not be accepted. The Commission was referred to the Full Bench decision in Brambleby v Australian Postal Corporation T/A Australia Post 133 (Brambleby). This decision refers to a previous Full Bench decision in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter134 (Nguyen) which set out the applicable propositions from previous decided cases in relation to the impact of a loss of trust and confidence on the question of whether reinstatement is inappropriate. The Commission was urged to consider the propositions in Nguyen in relation to the company’s arguments regarding a loss of trust and confidence in Mr Gill.135
[78] It was also argued that the Commission could take into account that Jetstar continues to maintain trust and confidence in the employees involved in the Coolangatta and Newcastle incidents. 136 Specifically, it was stated that, in the Newcastle incident, the employee was found to have breached a Cardinal Safety Rule yet the company continues to have trust and confidence in that employee.137
[79] A further factor that shows that the employment relationship can be re-established was said to be that it was common ground that Mr Gill had admitted the misconduct on 6 July 2015. It was stated that Mr Gill continued to work unsupervised from then until he was dismissed. It was contended that the Commission could have confidence because Mr Gill was honest and candid about what had happened and had shown contrition. The Commission could also have confidence because this was the only time in Mr Gill’s career that something like this had happened. Given that Mr Gill has had a long and exemplary career, the Commission could be confident that Mr Gill can continue to work without ever making a mistake like this again. 138
[80] With respect to the company’s submission that Mr Gill’s position has been filled, it was contended, on behalf of Mr Gill, that that should not preclude the Commission from ordering reinstatement. The Commission was referred to the Full Bench decision in Smith v Moore Paragon Australia Ltd 139 as support for the proposition that the unavailability of a job vacancy does not justify an order that reinstatement is not appropriate, rather, it is one of the factors to be considered.140
[81] Further, as Mr Gill lives in a regional area near Avalon Airport, it was stated that reinstatement to another part of the employer’s business would likely cause Mr Gill travel difficulties. 141
[82] On behalf of Jetstar, it was submitted that reinstatement is inappropriate given the serious nature of Mr Gill’s conduct in the context of a safety critical, largely autonomous job role. The company further contended that there has been a breakdown in mutual trust and confidence as a result of Mr Gill’s conduct. 142 In addition, it was stated that Jetstar holds concerns in relation to Mr Gill’s “blind spot” with respect to it being transferred into Mr Gill’s engineering work.143 It was Mr Cramer’s evidence that he could not be satisfied that the conduct would not happen again because Mr Gill would import that disregard for the safety basics back into his engineering duties. He could therefore not be confident in Mr Gill’s work as a LAME.
[83] Further, Jetstar argued that, if reinstatement is ordered, it should not be ordered to Avalon Airport but to Tullamarine Airport. It was explained that the heavy maintenance has been moved from Avalon Airport with a very small team of engineers remaining there. The reasons why, (if ordered), reinstatement should be to Tullamarine Airport were that there was a greater ability at Tullamarine Airport for Jetstar to absorb the reinstatement. Secondly, it was indicated that Tullamarine Airport allowed a greater degree of oversight and supervision. 144
[84] I have carefully considered the submissions and evidence before me. The Act requires that the question of reinstatement be considered first. On the one hand, it was argued by Jetstar that, as a result of Mr Gill’s conduct, there had been a breakdown in trust and confidence between the company and Mr Gill. In addition, it was contended that the nature of Mr Gill’s misconduct was such that the company could not be sure that such a “brain fade” would not be imported into his engineering duties. As the company relied on the safety critical decisions made by LAME’s, it would be a great concern to the company if Mr Gill was reinstated.
[85] I have not been persuaded by the company’s argument that Mr Gill’s unconscious disregard for the company’s safety policies would manifest itself, and be repeated, in his engineering duties in the future. No evidence was provided to support this assertion. It could well be argued that the opposite is true, given that Mr Gill was dismissed as a result of not consciously thinking about the consequences of a decision that he made. It is suggested that the last thing that Mr Gill will do in the future, is to repeat that lack of judgement and lack of thought about the consequences.
[86] There is no evidence, either, to support the contention that this incident was anything other than a one-off aberration. It was common ground that Mr Gill had an unblemished record in terms of his engineering duties with Jetstar. There is no evidence before the Commission of anything like this happening over the course of Mr Gill’s long career in aircraft maintenance. There is nothing in Mr Gill’s employment history which would suggest a pattern of such conduct or that the conduct is likely to be repeated.
[87] Further considerations, which weigh in favour of reinstatement, are Mr Gill’s age and his poor prospects for finding comparable alternative employment. It is noted that Mr Gill has specialist skills in a specialised area which are not easily transferable. In addition, the Commission has found that Mr Gill did not intentionally or deliberately or consciously disregard the company’s safety and other policies. This would therefore seem not to provide a barrier to reinstatement.
[88] Taking all of this into account, I find that I am not satisfied that reinstatement of Mr Gill is inappropriate. Therefore, I must order ready the reinstatement of Mr Gill.
[89] Section 391 of the Act sets out the requirements for an order for reinstatement in the following terms:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[90] As provided for in section 391 above, the Commission has the option of either reinstating the person to the position in which the person was employed immediately before the dismissal or appointing the person to another position on no less favourable terms and conditions. On behalf of Mr Gill, reinstatement to his position as a LAME at Avalon Airport was sought. For its part, if reinstatement was ordered, Jetstar’s preference was that Mr Gill be reinstated to Tullamarine Airport. The reasons for this were that Jetstar would have a greater capacity to absorb Mr Gill back into the workforce at Tullamarine Airport rather than at Avalon Airport. Secondly, reinstatement to Tullamarine Airport was said to allow for closer supervision and monitoring of Mr Gill. This was because of the removal of heavy aircraft maintenance from Avalon Airport with a consequential reduction in the number of engineers.
[91] Having considered the submissions of the parties on this aspect of the matter, I have been persuaded to appoint Mr Gill to a position as a LAME at Tullamarine Airport rather than at Avalon Airport. Mr Gill’s appointment will be on terms and conditions no less favourable than those on which Mr Gill was employed immediately before his dismissal.
[92] Pursuant to section 391(2), I consider it appropriate to order that Mr Gill have continuity of employment and that his period of service with Jetstar should be continuous.
[93] With respect to section 393(3) of the Act, in all the circumstances of this case, I consider that it is not appropriate to make an order to restore Mr Gill’s lost pay. In this regard, it is appropriate to take into account Mr Gill’s conduct which led to his dismissal. It is also noted that Mr Gill has obtained some employment during the period between his dismissal and the date of this decision.
[94] An order 145 in relation to the appointment of Mr Gill to a LAME position at Tullamarine Airport, together with continuity of employment and continuous service, will be issued separately.
Appearances:
D Victory of Maurice Blackburn Lawyersfor the Applicant
A Pollock of Counsel for the Respondent
Hearing details:
2015.
Melbourne:
December 3, 4.
1 Exhibit A1 at paragraph 18
2 Transcript PN 28
3 Ibid PN 28 - 32
4 Ibid PN 45 - 46 and 1461 and Exhibit A1 paragraphs 26 - 28
5 Ibid at paragraphs 20 - 25
6 Ibid at paragraph 10 and Transcript PN 43 - 44
7 Exhibit A2 at Attachment 7
8 Ibid
9 Ibid at Attachment 3
10 Ibid
11 Ibid at Attachments 5 and 7
12 Ibid at Attachment 4
13 Exhibit R1 at paragraph 2 and Exhibit R4 at paragraph 34
14 Exhibit A2 at Attachment 3
15 Ibid at Attachments 4 and 6
16 Ibid at Attachments 8 and 9
17 Ibid at paragraph 27(b) and Transcript PN 1464 - 1465 and
18 Ibid PN 1465
19 Ibid PN 1465 and Exhibit A2 at paragraphs 27(a) and (f)
20 Ibid PN 1467 and ibid at paragraph 27(c)
21 Ibid PN 1467
22 Ibid PN 1467 and Exhibit A2 at paragraphs 27(e) and (g)
23 Exhibit A1 at paragraph 27(a)
24 Ibid
25 Ibid at paragraph 27(a)
26 Transcript PN 1472
27 Ibid PN 1473
28 Ibid PN 1473 and Exhibit A1 at paragraph 27(a)
29 Ibid PN 1474
30 Ibid PN 1475 - 1476
31 Ibid PN 1476
32 Ibid PN 1464 and Exhibit A1 at paragraph 27(a)
33 Ibid PN 1478 - 1481
34 Ibid PN 262 - 264
35 Ibid PN 261
36 Ibid PN 281
37 Ibid PN 295
38 Ibid PN 283 - 284 and 295
39 Exhibit A2 at paragraph 48
40 Transcript PN 285 - 287 and 322 - 325
41 Ibid PN 326
42 Ibid PN 329 - 333
43 Ibid PN 334 - 337 and 339 - 341
44 Ibid PN 338
45 Ibid PN 341 - 352
46 Ibid PN 354
47 Ibid PN 356 - 358
48 Ibid PN 1506 and 1508 and Exhibit R1 at paragraph 5
49 Ibid PN 1507
50 Ibid PN 1537 - 1538
51 Ibid PN 1538 - 1542
52 Ibid PN 1545
53 Ibid PN 1547
54 Ibid PN 1551 - 1559
55 [2015] FCAFC 35
56 Transcript PN 1565 - 1576
57 Ibid PN 1574 - 1575
58 Exhibit R1 at paragraph 21
59 Ibid at paragraph 22
60 Transcript PN 1509 - 1512
61 PR943954
62 Transcript PN 1514 - 1527 and Exhibit R1 at paragraph 19
63 Ibid PN 1527 - 1529
64 Exhibit R1 at paragraph 11
65 Transcript PN 1530 - 1535
66 Ibid PN 1535
67 Ibid PN 1186 - 1191 and 1193
68 Exhibit R4 at paragraph 33
69 Transcript PN 1194 - 1201
70 Ibid PN 805 - 806
71 Ibid PN 807
72 Ibid PN 811 and 813
73 Ibid PN 820
74 Ibid PN 821
75 Ibid PN 822
76 Ibid PN 828
77 Ibid PN 907
78 Ibid PN 611 - 613 and 618 and Exhibit R3 at paragraph 40
79 Ibid PN 619 - 620
80 Ibid PN 670 - 677 and Exhibit R3 at paragraph 76
81 Ibid PN 1295 and Exhibit R5 at paragraph 38
82 Ibid PN 1299 and 1392 - 1393
83 Ibid PN 1396 and Exhibit R5 at paragraph 22
84 Exhibit R5 at paragraph 23
85 Ibid at paragraph 24
86 Transcript PN 1299
87 Ibid PN 1310
88 Ibid PN 1318 and 1321 - 1322
89 Ibid PN 1319
90 Ibid PN 1320 and 1345 - 1346
91 Ibid PN 1338
92 Ibid PN 1343 - 1346
93 Ibid PN 181 and Exhibit A3 at paragraphs 3 - 10
94 Exhibit A3 at paragraphs 10 - 11
95 Transcript PN 774
96 Ibid PN 475 and Exhibit A5 at paragraph 6
97 Ibid PN 537
98 Ibid PN 539 - 540
99 Ibid PN 548
100 Ibid PN 475 and Exhibit A5 at paragraph 6
101 Ibid PN 476
102 Ibid PN 477
103 Ibid PN 508 - 510 and Exhibit A8
104 Ibid PN 510 - 512, Exhibit A8 and Exhibit A9
105 Ibid PN 515
106 Ibid PN 550
107 Ibid PN 554 - 555 and Exhibit A5 at paragraph 7
108 Ibid PN 556 and ibid
109 Exhibit A5 at paragraph 7
110 Ibid at paragraph 9
111 Ibid at paragraph 8
112 Transcript PN 567
113 Ibid PN 715 and 726
114 Ibid PN 716 - 720
115 Ibid PN 792 - 793
116 Ibid PN 751
117 Ibid PN 722 - 724
118 Ibid PN 794 and 895 - 900
119 Ibid PN 799 - 800
120 Ibid PN 901 - 903
121 Ibid PN 801
122 Ibid PN 786
123 Ibid PN 761
124 Ibid PN 789
125 Ibid PN 1303
126 Ibid PN 1304
127 Ibid PN 1306
128 Ibid PN 1340 - 1342
129 Ibid PN 1349 - 1350
130 Ibid PN 1351 - 1355
131 Ibid PN 1356 - 1357
132 Ibid PN 1360 - 1366
133 [2014] FWCFB 9000
134 [2014] FWCFB 7198
135 Transcript PN 1486 - 1490
136 Ibid PN 1490
137 Ibid PN 773 and 1492
138 Ibid PN 1493 - 1495
139 PR942856
140 Transcript PN 1496 - 1498
141 Ibid PN 1499
142 Exhibit R1 at paragraph 25
143 Transcript PN 1585
144 Ibid PN 1583 - 1584
145 PR577836
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