Mr Timothy Redden v Harbour City Ferries Pty Ltd - [2014] FWC 8195

[2014] FWC 8195

FAIR WORK COMMISSION

DECISION

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

Mr Timothy Redden
v
Harbour City Ferries Pty Ltd
(U2014/1288)

COMMISSIONER CAMBRIDGE

SYDNEY, 20 NOVEMBER 2014

Unfair dismissal - dismissal for unacceptable behaviour said to be in breach of employer’s code of conduct - unacceptable behaviour alleged to have involved bullying, harassment, and intimidation - history of workplace allegations made by complainants - biased and injudicious approach to investigation and consideration of allegations - erroneous factual elements for dismissal - invalid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - reinstatement Ordered.

[1] This is the second Decision made in this matter. On 9 September 2014, the Fair Work Commission (the Commission) issued a Decision [2014] FWC 6210 which granted permission for the respondent employer to be represented by lawyers or paid agents.

[2] The matter involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Timothy Redden (the applicant). The respondent employer is Harbour City Ferries Pty Ltd (HCF or the employer).

[3] The application was filed on 16 April 2014, and the applicant is represented by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the AMWU).

[4] The application indicated that the date the applicant’s dismissal took effect was 7 April 2014. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[5] The matter was not resolved at conciliation and it has proceeded to arbitration before the Commission in a Hearing conducted in Sydney on 24, 25 and 29 September 2014.

[6] At the Hearing, Mr J Lavelle Wilson from the AMWU appeared for the applicant. The applicant was the only witness called to provide evidence in support of the claim. The employer was represented by Mr B Cross, a barrister, instructed by Ms A Grant, solicitor from Corrs Chambers Westgarth. Mr Cross called a total of six witnesses who provided evidence on behalf of the employer.

Factual Background

[7] The applicant is a man of some 51 years of age and he had worked for the employer and its predecessor, Sydney Ferries, for a total of 24 years. The applicant was initially employed as a Trade Assistant and in the past 12 years he has worked as a Fitter. The applicant, along with most ferry maintenance personnel, work at or from the Balmain Shipyard (Shipyard).

[8] On 28 July 2012, HCF commenced to operate the Sydney Harbour passenger ferry network under a franchise arrangement issued by the New South Wales Government. As part of the franchise arrangement, all employees of Sydney Ferries were offered employment with HCF. Consequently in July 2012, the applicant’s employment transferred from Sydney Ferries to HCF. HCF has in excess of 650 employees involved in the operation and maintenance of the ferry network.

[9] In about 2009, Sydney Ferries conducted an extensive investigation into allegations of workplace bullying, harassment and intimidation made by one of its employees, a carpenter, named Mr Michael Kelly (Kelly). These allegations (the 2009 allegations) which were made by Kelly were primarily directed against another employee, a shipwright, named Mr James Young (Young). Kelly also made allegations against other employees, including some less serious allegations against the applicant.

[10] The 2009 allegations created very significant divisions amongst the workers at the Shipyard. At the time of the 2009 allegations, the applicant was a Union delegate who made representations on behalf of Young. Following the investigation into the 2009 allegations, a report (the Walker Report) 1 was released and disciplinary action was apparently taken against Young. However, the substantial number of allegations made by Kelly, including those made against the applicant, were apparently not found as proven2 and Kelly was transferred to work at another location for a period of 12 months.

[11] In May 2013, HCF General Manager People and Culture, Mr Darrin Moy (Moy) conducted a series of discussions and meetings which arose from complaints made against the applicant by another Fitter named Mr Eric Sheehan (Sheehan). Sheehan had complained about the applicant having allegedly bullied and harassed him at work. Sheehan had indicated a desire to have his complaint against the applicant dealt with informally and Moy convened a meeting which allowed both the applicant and Sheehan to air their differences. This informal process culminated with the applicant and Sheehan apparently reconciling their differences and they shook hands and agreed to put the matter behind them.

[12] Also during May 2013, Moy had a conversation with Kelly, during which Kelly raised concern about problems that he was allegedly having with the applicant’s conduct at work. However, at this time, Kelly rejected any suggestion that Moy should take any action in respect to the alleged conduct of the applicant. It is relevant to note that in September 2013, HCF management conducted an anti-bullying and harassment training course for all Shipyard workers.

[13] On 17 February 2014, Kelly raised formal bullying and harassment complaints against the applicant (the Kelly allegations). Kelly prepared a typed document dated 18 February 2014 3 which set out the basis for his complaint against the applicant. The complaint made by Kelly primarily involved the alleged conduct of the applicant which was said to have occurred on the preceding Friday, 14th February 2014.

[14] In summary, Kelly alleged that on 14 February 2014, the applicant had engaged in conduct which was deliberately intended to bully and harass him. There were three particular aspects of the alleged conduct of the applicant which Kelly asserted to be bullying and intimidation. Kelly alleged that on 14 February, the applicant had: (a), at about 7:30am, stared at him and had stood in a particular stance which was intended to intimidate; (b), at about 8:10am, called him a “dog”; and (c) at about 11:30am and again at about 2:55pm, performed the “chicken dance” at him which implied that he was a chicken because he would not retaliate.

[15] The documented complaint made by Kelly on 18 February was primarily initiated by and focused upon the applicant allegedly performing the “chicken dance” at him. The “chicken dance” was described as a movement that sought to resemble the actions of a chicken and involved the placing of both hands on or about the chest area near the respective armpits, and then the arms are moved up and down in a flapping motion. Importantly, the second occasion that Kelly alleged that the applicant had performed the chicken dance at him on 14 February, circa 2:55pm, had been captured on CCTV footage.

[16] On 21 February 2014, Moy met with Kelly and discussed the details of the alleged conduct of the applicant on 14 February. This discussion specifically emphasised the allegation that the applicant had done the “chicken dance” at Kelly on two separate occasions on 14 February. Following this meeting, Moy dispatched a letter to the applicant which advised of the serious complaint made by Kelly and set out the allegations of the conduct of the applicant on 14 February. The applicant was required to provide a written response to the allegations within seven days.

[17] The applicant provided Moy with a written response dated 28 February 2014. Essentially the applicant denied the conduct alleged by Kelly and suggested that as he regularly performed certain stretches at work, which had been developed in consultation with his physiotherapist, these stretching actions may have been misinterpreted by Kelly. Further, the applicant denied that he had called Kelly a “dog” and he may have instead said the word “done” as he checked equipment when in the vicinity of Kelly. The applicant flatly denied that he had done the “chicken dance”.

[18] During the course of the investigation into the allegations made by Kelly, Moy became aware of an incident which occurred at sometime in December 2013, and which involved the applicant allegedly racially vilifying another employee named Mr Peter Milonakis (Milonakis). This event (the Milonakis allegations or lunchroom incident) occurred in a lunchroom and allegedly involved the applicant insulting Milonakis and saying words to the effect that he, Milonakis, was “chewing with your mouth open, you filthy wog.” 4

[19] After some further investigation into the lunchroom incident, Moy sent a further letter to the applicant dated 3 March 2014, setting out the allegations made against him regarding his conduct in the lunchroom in December 2013. Once again the applicant was required to provide a written response to these allegations within seven days.

[20] The applicant provided a written response dated 10 March 2014, which essentially acknowledged that there had been some mention of Milonakis eating with his mouth open but denied that he had made insulting or racially denigrating comments toward Milonakis.

[21] On 6 March 2014, Sheehan raised an informal complaint against the applicant which was subsequently formalised and documented in a letter dated 11 March 2014. Sheehan alleged that the applicant had constantly bullied, harassed and intimidated him. The formal complaint made by Sheehan (the Sheehan allegations) particularised events in December 2013, January 2014 and February 2014 which were provided as examples of the conduct of the applicant which represented bullying, harassment and intimidation.

[22] After some further investigation into the Sheehan allegations, Moy sent another letter to the applicant dated 12 March 2014, which included as an attachment the documented allegations made against him by Sheehan regarding his conduct in December 2013, January 2014 and February 2014. The applicant was asked to attend a meeting with, inter alia, Moy which had been scheduled for 14 March. This meeting was proposed as a forum to consider appropriate action in respect to the Kelly and Milonakis allegations, and also so that the applicant could be heard in response to the Sheehan allegations.

[23] The applicant told Moy that the particular Union official that he wished to have as his support person was unable to attend the meeting which had been proposed for 14 March. Moy agreed to defer the meeting to another time to enable the particular Union official to attend.

[24] The applicant provided a written response to the Sheehan allegations which was dated 14 March 2014, and which did not deny that there had been certain fractious interactions between himself and Sheehan. However the applicant asserted that the particular detailed circumstances were different to that portrayed by the Sheehan allegations such that, for example, one incident on 20 February 2014 was misconstrued as an insult directed at Sheehan when it was directed in a jovial manner at another employee.

[25] The applicant was absent from work on sick leave for a period up until 4 April 2014 and he returned to work on Monday, 7 April 2014. During the period between 14 March and 4 April 2014, Moy undertook further investigations in respect to the Kelly, Milonakis and Sheehan allegations. As a result of these investigations, Moy made certain factual findings which broadly confirmed all of the conduct of the applicant as asserted in the Kelly, Milonakis and Sheehan allegations.

[26] Having determined that all of the Kelly, Milonakis and Sheehan allegations were proven, Moy decided that the applicant's employment would be terminated on the basis of misconduct. Moy prepared a letter of termination and arranged to meet with the applicant upon his return to work on 7 April 2014. Moy decided that the applicant would be given one final opportunity to provide any further information which may persuade Moy against giving the pre-prepared letter of termination to the applicant and finalising his employment accordingly.

[27] On 7 April 2014, although that particular Union official that the applicant had wished to have as a support person was not available, Moy proceeded with meeting with the applicant who had his Union delegate, Mr Chris Moutter (Moutter), in attendance as his support person. (It is relevant to note that there were related proceedings taken by the AMWU under s.739 of the Act (C2014/649), which have challenged disciplinary action taken by HCF against Moutter in connection with his conduct surrounding the matters associated with the Kelly allegations and his representation of the applicant.)

[28] During the meeting held on 7 April, the applicant was advised that his conduct, as asserted in the Kelly, Milonakis and Sheehan allegations, had been found proven and therefore he had breached the HCF code of conduct involving abuse, harassment or discrimination, and threatening or intimidating behaviour in the workplace. The applicant was advised that as he did not show remorse and because he was not willing to admit that he had done anything wrong, his employment was terminated. The applicant was handed the pre-prepared letter of termination 5 and he was paid four weeks remuneration in lieu of notice.

[29] The applicant has encountered considerable difficulty with securing alternative employment since dismissal. The applicant has applied for numerous positions but the only alternative employment he has been able to obtain involved casual work gained about two weeks before the Hearing of his unfair dismissal claim.

The Case for the Applicant

[30] Mr Lavelle Wilson from the AMWU appeared for the applicant and he made verbal submissions in addition to documentary material that had been filed. Mr Lavelle Wilson submitted that the actual conduct of the applicant when considered objectively and taking into account the surrounding circumstances, was not capable of forming a valid reason for dismissal. Further, Mr Lavelle Wilson submitted that the applicant was denied procedural fairness which also established that he had been unfairly dismissed.

[31] Mr Lavelle Wilson submitted that there was undeniable tension in the workplace between numerous employees and in particular between the applicant and Kelly, and the applicant and Sheehan. However, according to the submissions made by Mr Lavelle Wilson, the majority of the conduct that was alleged against the applicant did not actually occur.

[32] Mr Lavelle Wilson acknowledged that the applicant may have certain physical characteristics that could be described as intimidating, but the findings made by HCF as to a pattern of bullying and intimidating behaviour were made in error. Consequently, Mr Lavelle Wilson said that the reasons that formed the basis for the dismissal of the applicant were not valid reasons for dismissal.

[33] The various allegations made against the applicant were scrutinised by the submissions made by Mr Lavelle Wilson. In particular, Mr Lavelle Wilson submitted that it was clear from the evidence before the Commission that the applicant did not perform the “chicken dance” and this was evident from the CCTV footage.

[34] Further, Mr Lavelle Wilson mentioned that the primary allegations made by Sheehan which involved an incident near the staircase of the main administration, involved comments which were directed at another person, but Sheehan thought they were directed at him. Mr Lavelle Wilson submitted that HCF had made a finding that the comments were made and directed at Sheehan because it mistakenly believed that the incident had been witnessed by another employee named Ms Michelle Battin (Battin).

[35] Mr Lavelle Wilson also made submissions which challenged the findings made by HCF in respect to the Milonakis allegations. It was submitted that the applicant did not say the words as alleged but instead he did make some comment about people eating with their mouths open. In respect of this lunchroom incident, the submissions made by Mr Lavelle Wilson also raised criticism about the failure of either Milonakis or the other witness, Battin, to make any report of the incident in the lunchroom, which had occurred at some point prior to Christmas of 2013. According to Mr Lavelle Wilson, the failure of both Milonakis and Battin to report the lunchroom incident was a reflection that comment made by the applicant, although perhaps not appropriate, was not so serious as to warrant reporting. Therefore according to Mr Lavelle Wilson, the lunchroom incident was not sufficiently serious as to constitute a valid reason to dismissal.

[36] In further submissions, Mr Lavelle Wilson criticised aspects of the investigation and discipline procedure that HCF had adopted. Mr Lavelle Wilson submitted that the applicant had not been given a proper opportunity to respond to the allegations nor the findings that were made following the investigation. In particular, Mr Lavelle Wilson made criticismof the fact that HCF was fully aware of the CCTV footage and it chose not to show that important material to the applicant or to file it as evidence prior to the Hearing.

[37] Mr Lavelle Wilson further submitted that HCF made significant procedural errors involving the construction of the letter of dismissal prior to the meeting at which the termination of the employment occurred. Mr Lavelle Wilson said that it was procedurally unfair to make determinations about findings in respect of the allegations and the dismissal of the applicant, prior to a meeting which might provide some opportunity for the applicant to be heard in respect of those matters. According to the submissions made by Mr Lavelle Wilson, this process meant that the applicant was not given a proper opportunity to consider or respond to the findings of the investigation and/or the decision that those findings represented basis of dismissal.

[38] It was also submitted by Mr Lavelle Wilson that HCF had not properly considered any of the written responses to the various allegations which had been provided by the applicant. According to Mr Lavelle Wilson, this was reflected by the fact that the letter of termination stated that the applicant had not shown any remorse and thereby failed to recognise the apology contained in the applicant's written response dated 14 March 2014 and made in respect to the Sheehan allegations.

[39] In addition, it was submitted by Mr Lavelle Wilson that there was evidence of differential treatment of employees who had from time to time engaged in robust verbal interactions with other employees. Mr Lavelle Wilsonsaid that the applicant could not be expected to know what kind of swearing was or was not acceptable, as there had been different standards applied to different employees at various times.

[40] Mr Lavelle Wilson also submitted that there were various other relevant matters which operated to establish that the dismissal of the applicant was unfair. In this regard, Mr Lavelle Wilson submitted that HCF had not properly considered the extensive and generally good work record of the applicant. Further, it was submitted that HCF had not given any consideration to the particular difficulties for a person of the applicant's age and limited skills in finding alternative employment. Failure to give any consideration to these aspects of the impact of the dismissal of the applicant created harshness, according to the submissions made by Mr Lavelle Wilson.

[41] Mr Lavelle Wilson summarised his submissions by concluding that the dismissal of the applicant was unfair. He said it was unfair because it was based upon findings that did not establish valid reason and it was implemented by way of a procedure that did not provide fair and reasonable opportunity for the applicant to make any challenge to the findings or the determination that those findings represented basis for dismissal.

[42] Mr Lavelle Wilson urged that the Commission find that the dismissal of the applicant was unfair and that it would be appropriate for the applicant to be reinstated to his former position, with no loss of continuity and compensation.

The Case for the Employer

[43] The employer was represented by Mr Cross, counsel, who submitted that the dismissal of the applicant was not unfair. Mr Cross made verbal submissions which elaborated upon documentary material that had been filed on behalf of HCF.

[44] Mr Cross commenced his submissions by stating that the dismissal of the applicant did not involve any reverse onus as may apply in a case involving summary dismissal for serious misconduct. According to the submissions made by Mr Cross, the dismissal of the applicant was a matter involving misconduct found to be in breach of the employer’s code of conduct and for which dismissal with notice was justified.

[45] Mr Cross submitted that the dismissal of the applicant was justified as it was made for valid reason in relation to a matter involving health and safety in the workplace. Mr Cross said that bullying in the workplace context was an important issue and a matter which required an employer to act promptly and to rectify. Mr Cross said that bullying was an insidious behaviour and that the evidence established that the applicant had engaged in bullying behaviour in the form of harassment and intimidation of other employees and over an extended period.

[46] Mr Cross submitted that any termination of employment for reason of bullying constituted a valid reason. Consequently, the determination of the matter involved a finding as to whether the applicant's conduct could be established as bullying. Mr Cross submitted that there were a variety of instances which involved simply one person's word against another and therefore the issue of credit was relevant to any determination of the allegations which were made and which led to the employer making findings that the applicant engaged in bullying. Mr Cross submitted that the applicant was not a witness of credit whose evidence could be considered as reliable.

[47] Mr Cross made submissions which challenged the credibility of the applicant. In particular Mr Cross drew attention to a statement made in the unfair dismissal application document which asserted that he had an excellent work record. Following challenge to this statement during cross examination, the applicant admitted that his work record was not excellent and that he had made a false statement. Mr Cross submitted that this was a “classic false statement” which reflected the absence of credibility attached to the evidence of the applicant.

[48] Mr Cross made further submissions which challenged the applicant's credibility in respect to the CCTV footage, which was provided as verification of the allegations made by Kelly. Mr Cross submitted that the applicant had falsely stated that as he was walking across the dock gate on 14 February 2014, he had “rolled his shoulders” and this may have been construed to have been the “chicken dance” as alleged by Kelly. Mr Cross said that upon examination of the CCTV footage, the applicant admitted that the video recording did not show him “rolling his shoulders” and the applicant accepted that what he had put in his response to HCF was false.

[49] Mr Cross submitted that the assertion that it was procedurally unfair not to have shown the CCTV footage to the applicant during the investigation process was wrong. Instead, according to the submissions of Mr Cross, the subsequent evidence provided by the applicant when questioned about details of the CCTV footage provided basis upon which to establish the unreliability of the evidence of the applicant. Mr Cross submitted that the applicant should not be considered as a witness of credit.

[50] Mr Cross made further submissions which sought to contrast what he said was the applicant's lack of credibility with the credibility found with the evidence provided by other witnesses, in particular that of Kelly. Mr Cross submitted that Kelly should be accepted as a witness who provided unshakeable testimony. It was submitted that Kelly was smaller than the applicant, he was obviously nervous, and upset and distressed as a result of the health and safety concerns which had arisen from the conduct of the applicant.

[51] In respect to the allegations made by Kelly against the applicant, Mr Cross submitted that on the basis of the issue of credit, the Commission should adopt a preference for the evidence of Kelly over that of the applicant. Therefore according to the submissions of Mr Cross, the allegations made by Kelly regarding the conduct of the applicant on 14 February 2014 should be adopted by the Commission. Mr Cross submitted that the CCTV footage showed that the applicant raised his arms up and down three times after looking at Kelly and that action was consistent with the allegations made by Kelly and it provided further support for findings based upon the issue of credit.

[52] Mr Cross made further submissions about what he referred to as the Milonakis incident. It was submitted that the evidence about this lunch room incident, which was provided by Battin and Milonakis, should be preferred over that provided by the applicant. Mr Cross rejected criticisms that were made regarding the failure of either Battin or Milonakis to report the matter which occurred at some time in December 2013. Mr Cross submitted that the incident was not reported at the time because Milonakis was scared of the applicant.

[53] It was further submitted by Mr Cross that the allegations that were raised by Sheehan should also be accepted by the Commission. Mr Cross submitted that as there were contemporaneous records of these events, there was strong basis for the Commission to find that the allegations raised by Sheehan were proven.

[54] By way of summary, Mr Cross submitted that there was no basis to find that the applicant had been unfairly dismissed. Mr Cross stated that on balance, HCF had valid reason terminating the employment of the applicant. Mr Cross submitted that HCF had made factual findings that had favoured the complainants and that any one of the various complaints would have constituted a valid reason for dismissal. Further, it was submitted that HCF had adopted appropriate procedures when dealing with the allegations made against the applicant. Mr Cross said that as the various allegations were investigated, HCF had provided opportunity for the applicant to respond in writing and indeed, he had done so. Mr Cross submitted that it was not in any way a breach of the Act in relation to procedural fairness, to attend a termination meeting with a letter which may or may not be acted upon depending upon events at the meeting.

[55] Mr Cross concluded his submissions by stating that the applicant had created quite adverse health consequences for other employees and therefore it was entirely appropriate for HCF to have taken the action to dismiss the applicant. Mr Cross further stated that if any remedy was contemplated, it was clear that HCF had a loss of trust and confidence in the applicant which would make any reinstatement inappropriate.

Consideration

[56] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[57] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[58] In this case, the applicant was dismissed with payment in lieu of notice for reason ofinappropriate behaviour. The inappropriate behaviour involved findings of conduct in breach of the employer's Code of Conduct, regarding threatening or intimidating behaviour and/or harassment or bullying. The findings of inappropriate behaviour were made following the employer's investigations into a series of allegations which were made by other employees against the applicant. There were three separate sets of allegations which are respectively referred to as the Kelly, Milonakis and Sheehan allegations.

[59] Consideration has been approached by way of analysis of the particular behaviour and actions of the applicant as alleged by the respective complainants; Kelly, Milonakis and Sheehan. It is relevant to note that although no specific findings were particularised in the letter of dismissal, the employer established findings which, in effect, held that in each of the three sets of allegations, all instances of the conduct alleged against the applicant were found proven as had been alleged.

The Kelly Allegations and the Chicken Dance

[60] The Kelly allegations were raised shortly after the time when the primary events which were complained of were alleged to have occurred. At the request of the employer, Kelly particularised the allegations in a document dated 18 February 2014, which referred to four events that were alleged to have occurred on the preceding Friday, 14 February 2014.

[61] The almost contemporaneous alignment of complaint about an alleged event would often operate to provide support for the complainant. In simple terms, a delay in reporting a matter will often introduce questions of conviction, accuracy and veracity about the particular nature of the actual event that gave rise to complaint.

[62] It is therefore of some assistance to Kelly that he did not delay his complaint and importantly, from the outset, he believed that the conduct of the applicant in respect to the second occasion that he performed the “chicken dance” on 14 February, circa 2:55pm, had been captured on CCTV.

[63] The Kelly allegations detail four separate events which were alleged to have occurred on 14 February. The first event was said to have occurred at 7:30am and involved the applicant intimidating Kelly by staring at him and adopting a wide stance. The second event was alleged to have occurred at 8:10am, when the applicant called Kelly a dog. The third event was alleged to have occurred at 11:30am and involved the applicant doing the “chicken dance” at Kelly. The fourth event involved the second occasion that the applicant did the “chicken dance” at Kelly and this was alleged to have occurred at 2:55pm as the applicant walked across the dock gate.

The Chicken Dance Caught On CCTV

[64] Importantly, the fourth event that Kelly alleged to have occurred on 14 February was captured on CCTV. The CCTV footage of the fourth event became Exhibit 8 and was viewed on numerous occasions during the Hearing. The CCTV footage (Exhibit 8) has been examined in considerable detail and it represents evidence which has become crucial to the determination of this matter.

[65] The first time that the applicant had seen the CCTV footage of his “chicken dance” was during the Hearing on 24 September. 6 The applicant can be clearly identified pushing a trolley across a walkway and as he reaches the end of the walkway, the trolley appears to go over a small bump and the applicant's arms move up and down two or three times, whilst his hands remain holding onto the trolley handle. These actions were alleged by Kelly to represent the applicant doing the “chicken dance” at him. HCF made findings which confirmed all of the allegations made by Kelly, including that the actions of the applicant as recorded in the CCTV footage contained in Exhibit 8, represented the applicant performing the “chicken dance” at Kelly.

[66] Upon initial viewing of Exhibit 8, it was difficult to recognise that at any point the applicant performed what might be understood to be the “chicken dance.” A more detailed examination revealed that the applicant did move his arms up and down two or three times as he left the walkway and whilst his hands remained gripped to the trolley handle. Further, the applicant does appear to look to his right towards a vessel which is docked nearby as he makes what might be described as the two or three flapping movements of his elbows.

[67] Consequently, it was unsurprising when counsel representing HCF, Mr Cross, put the following questions to the applicant:

“PN667

Okay, wooden, and when the trolley goes off the end, it bumps. Correct? ---Yes.

PN668

And following that you raise your arms up and down three times while looking at the ferry upon which Mr Kelly is. Correct? --- I don't know where Mr Kelly is.

PN669

Mr Kelly was on the ferry, wasn't he? --- I don't know.”

[68] Unfortunately, the evidence has subsequently established that Kelly was not on the ferry as was suggested by Mr Cross. Had Kelly been on or near the ferry, he would have been in the line of sight of the applicant at the time that he made the two or three flapping movements of his elbows. Kelly gave evidence 7 that at the time that the applicant allegedly did the “chicken dance” at him, as was captured in the CCTV recording, he, Kelly, was located in a workshop some 30 meters behind the applicant and in the opposite direction to that which the applicant was looking.

[69] The evidence that was provided by Moy 8 about his understanding of exactly where Kelly was when the applicant performed the “chicken dance” as shown in Exhibit 8, established a striking level of inaccuracy and a highly regrettable propensity to accept the propositions made by Kelly with little or no questioning or testing of those assertions.9 A proper and objective analysis of all of the evidence could not, in the mind of any fair and reasonable person, provide any basis for a finding that the CCTV footage contained in Exhibit 8 established that the applicant did the “chicken dance” at Kelly.

[70] As mentioned earlier in this Decision, upon viewing the CCTV footage it is difficult to identify any actions of the applicant that might, upon first presentation, be considered to be a “chicken dance.” The absence of any manifest presentation of a “chicken dance” in the CCTV recording may explain why the CCTV recording was not shown to the applicant during the investigation conducted by Moy, and why the recording was not filed as part of HCF’s evidentiary material submitted in accordance with Directions made in preparation for the Hearing.

[71] Notwithstanding the somewhat curious delay with the disclosure of the CCTV recording, there was prospect that a more detailed examination of the actions of the applicant’s arms as he pushed the trolley off the end of the walkway, could be construed to mimic the actions of a chicken and as such provide verification of the particular allegation made by Kelly. However, such a prospect would logically require Kelly to have been on or near the vessel that was in the line of sight of the applicant as he made the arm movements. Hence, the logic which underpinned the questions put by counsel for HCF at PN668 and PN669 of transcript.

[72] The answers that the applicant gave at PN668 and PN669 not only accord with Kelly’s evidence about Kelly being at a location 30 meters in the opposite direction from where any “chicken dance” would have logically been directed, they also verify that the applicant had not looked at Kelly and caught his eye (albeit through sunglasses), and then performed the “chicken dance” in the belief that Kelly was watching him. If, as was suggested by Kelly, the applicant had looked towards Kelly and caught his attention before or around the time that he commenced to push the trolley across the walkway, he would have used such knowledge to rebut the questions of counsel and respond with answers that placed Kelly at the workshop and away from the vessel as was suggested by counsel for HCF.

[73] Upon proper analysis and objective consideration, there is simply no reasonable or rational basis to make any finding that the actions of the applicant, as recorded in Exhibit 8, could, even upon the most generous interpretation, be construed as the applicant doing the “chicken dance” at Kelly or making some other actions or gestures which were intended to intimidate, offend, or cause any adverse action to Kelly. At the time, the applicant did not even know where Kelly was.

Other Kelly Allegations

[74] It was regrettable and disturbing to observe that in giving evidence in respect to Exhibit 8, Kelly, Moy and another HCF witness named Mr Carl Groom (Groom), each unhesitatingly adopted a conviction that the recorded CCTV material confirmed that the applicant had done the “chicken dance” at Kelly, as had been alleged by Kelly. It was unsurprising that Kelly would endorse his allegation. However, in the case of Moy in particular, who was the person who made the decision to dismiss the applicant, it was uneasily perplexing to reflect on his emphatic endorsement of Kelly’s allegation when he could not say where Kelly was at the time that the applicant had done the “chicken dance” at Kelly.

[75] In respect to the three further events as were alleged to have occurred on 14 February, and the other background allegations which are encompassed by the Kelly allegations, there is an unavoidable difficulty associated with extrapolation and consideration of the evidence provided by Kelly in respect to the “chicken dance” captured on CCTV on 14 February 2014. How should an adjudicator of fact approach other evidence from a person who had, on the most generous assessment, completely misconstrued the actions of the applicant as established by objective analysis of the evidence surrounding the CCTV recording of the “chicken dance”?

[76] In simple terms, if Kelly could get it so wrong in respect to the second “chicken dance” event that he alleged occurred on 14 February, how could the other three events be resolved in favour of his allegations? As will be seen from my conclusions in respect to the Milonakis allegations which are made later in this Decision, I have cautiously avoided adoption of any cursorily uniform preference for the evidence of one side over another.

[77] Although there may have been some element of intentional “baiting” of Kelly by the applicant on 14 February and on other occasions, I am not convinced that there is sufficient basis to support any finding that the other allegations made by Kelly, and erroneously adopted by HCF, could be proven. There is clear potential, indeed, likelihood, that the interpretation by Kelly of many, if not all, of these alleged actions of the applicant, was infected with the irrationality and unrealistic suspicion that was evident from the analysis and conclusions that emanated from Exhibit 8.

[78] Consequently, I am abundantly satisfied that the applicant did not perform the “chicken dance” or make any other gestures or actions at or around 2:55pm on 14 February 2014, which were directed at Kelly, or in any way intended to intimidate, offend, or cause any adverse action to Kelly. Further, I am unable to find that the other allegations made against the applicant in respect to alleged conduct on 14 February 2014, have any basis in fact.

[79] In respect to the more general allegations of inappropriate behaviour which were made by Kelly against the applicant, there was sufficient evidentiary basis to support a level of complaint in a more general sense.

[80] The Shipyard is a workplace which has in recent years, suffered from a significant degree of disharmony amongst employees. There was evidence of numerous incidents which involved terse and aggressive interactions between different employees. The applicant was often a participant in such incidents. The applicant exhibits physical and personality characteristics which may be described as that of an alpha male. Without in any way wishing to be unkind, the applicant might broadly be considered by some of his work colleagues to be a difficult person and at times even unpleasant.

[81] I believe that, inter alia, Kelly and Sheehan might endorse such an assessment of the applicant’s character. The evidence of numerous incidents involving the applicant engaging in terse and aggressive interaction with other employees provided valid basis and justification for complaint. The Shipyard is unquestionably a robust workplace where the language used and the behaviour displayed would be very different to that found in more refined workplaces such as office and other clerical environments. However, I have formed the view that the applicant had engaged in unacceptable workplace behaviour which, in the context of a robust workplace such as the Shipyard, provided legitimate basis for complaint. Consequently, Kelly and Sheehan and others, were legitimately entitled to consider that the conduct of the applicant was, on occasions, unacceptable and beyond the bounds of a robust workplace.

[82] The broader allegations made by Kelly against the applicant in respect to a variety of generally unacceptable workplace behaviours are upheld. The applicant’s day to day approach in engaging with other individuals at the workplace may be, from the applicant’s perspective, just natural banter, and or “blokes being blokes.” However, behaviour such as verbal engagement with repeated use of strong swearing and insulting remarks must be stopped at the first suggestion that it is found to be offensive.

The Milonakis Allegations (Lunchroom Incident)

[83] Although this aspect of the reasons for the applicant's dismissal has been described as the Milonakis allegations, it is important to note that Milonakis did not raise the allegations.

[84] The allegations concern an incident that occurred in a lunchroom at some time in December 2013. There was disputed evidence about the precise words that were exchanged between the applicant and Milonakis in the lunchroom. Battin, inter alia, was in the lunchroom at the time and a witness to the incident.

[85] Neither Milonakis, or Battin, or any other witness to the incident in the lunchroom reported the matter. There was a curious conflict in the evidence about how the lunchroom incident of December 2013 came to the employer’s attention in February 2014, during the investigation into the Kelly allegations. Moy said that Battin told him about the lunchroom incident. 10 Battin said that Moy raised the lunchroom incident with her.11

[86] There was a further troubling aspect to the evidence about the detail of the lunchroom incident. Once Moy had become aware of the lunchroom incident, he commenced an investigation into that event which included questioning the applicant about his recollection of the precise words that were exchanged during what was accepted to be an unpleasant interaction.

[87] The applicant told Moy that he did not call Milonakis a “filthy fucking wog” as had been suggested by the Milonakis allegations. Moy then spoke with Milonakis and Battin in an attempt to confirm the precise words that they believed that the applicant had used during the lunchroom incident. Moy had a meeting with Milonakis and Battin on 10 March 2014, for the purpose of this clarification regarding the precise words that the applicant had used during the lunchroom incident.

[88] The evidence that was provided by each of the three individuals present at the meeting on 10 March 2014 can be found, in respect of each individual, at: Moy - Exhibit 11 @ paragraph 46; Milonakis - Exhibit 14 @ paragraph 11; and Battin - Exhibit 15 @ paragraph 13. It is instructive to cut and paste these paragraphs from the respective Exhibits for the purposes of comparative analysis. This analysis reveals significant similarities involving a significant amount of verbatim text such that this material could not be the independent recollection that each individual had of the words spoken during the meeting on 10 March 2014.

[89] Despite the regrettable problems associated with aspects of the evidence regarding the lunchroom incident, when the evidence is considered in totality, a reasonably clear picture of the event can be established. The applicant made a highly inappropriate racial insult which understandably upset Milonakis. However Milonakis gave as good as he received, and the applicant left the lunchroom after Milonakis told him to “fuck off then”. 12

[90] There can be no justification for the applicant’s conduct in respect of the lunchroom incident. However, the event was not reported, and it is perhaps a reflection of the particular standards of workplace behaviour at the Shipyard. Although Milonakis gave evidence that he did not report the lunchroom incident because he said he was scared of the applicant, I think such fear may have been a more recent, convenient, contemplation and was certainly not reflected by his own robust defence against the applicant at the time of the lunchroom incident.

[91] The lunchroom incident, as broadly represented by the Milonakis allegations, is found proven. The conduct of the applicant in respect of the lunchroom incident warranted serious disciplinary action. However in the context of the particular standards of workplace behaviour in this instance, disciplinary action involving dismissal from employment would be inappropriate and represent an overreaction that would be inconsistent with the treatment of other employees.

The Sheehan Allegations

[92] Sheehan formalised his complaints against the applicant in a letter to HCF management dated 11 March 2014. 13 It should be remembered that there had been an established history of disagreement between Sheehan and the applicant.

[93] The particulars of the Sheehan allegations involved a surprising degree of precision. The documented allegations provided four examples of incidents, three of which specified both date and time of day of the alleged behaviour of the applicant. Sheehan provided a photocopy of a notebook page which contained handwritten entries, which he said he made within 5 to 10 minutes after each event had occurred. 14 Unfortunately, evidence regarding Sheehan's notebook has some questionable aspects such that it does not display a “ring of truth”.

[94] Firstly, when Moy was investigating the Sheehan allegations which had been documented in the letter of 11 March, Sheehan did not produce to Moy the notebook which he had kept and which would verify the particular incidents of the behaviour of the applicant. It is inconceivable that when raising the allegations against the applicant and discussing the details with Moy, that Sheehan would not tell Moy about the best evidence to support his allegations, namely his notebook entries. 15

[95] Secondly, the notebook contained entries which are neatly written and each separated by one blank line. However, these records involve separate incidents which in the first case were eight days apart and in the second case over a month apart. The photo copy of the page from the notebook 16 does not give the appearance of entries that were made over time at different times.

[96] Thirdly, despite Sheehan apparently making the notebook entries very soon after each relevant event, the most recent and serious event of 20 February 2014 (the stairway incident), was not recorded in the notebook at all. Further, there was a two week period after the 20 February stairway incident before Sheehan raised his allegations against the applicant. When questioned about these unusual aspects of his evidence, Sheehan provided unconvincing testimony. 17

[97] The investigation of the Sheehan allegations also revealed at least one important mistake made in respect of the stairway incident. Moy found the stairway incident as alleged by Sheehan to have been proven. However, regrettably, Moy proceeded on the erroneous belief that the stairway incident was witnessed by Battin. 18

[98] The extent of inaccuracy and mistake surrounding the stairway incident of 20 February 2014, is well exampled by the following extract from the “File Note/Report” made by Moy wherein he stated that: “Michelle Battin ... confirmed that Mr Redden had verbally abused Mr Sheehan on the steps of the Administration building on 24 March 2014;”. 19

[99] The evidence in respect of the Sheehan allegations and in particular the stairway incident, when considered carefully and with objective scrutiny, does not support any finding of a factual basis to confirm the alleged conduct of the applicant. The Sheehan allegations must be rejected in respect of all particularised incidents including the stairway incident.

[100] As a consequence of the various findings made in respect of the Kelly and Sheehan allegations, to the extent that HCF relied upon the various incidents particularised in those allegations as reason for dismissal of the applicant, such reason or reasons have no proper basis in fact and therefore do not provide valid reason for dismissal. In respect to the lunchroom incident particularised in the Milonakis allegations, as a finding of fact, that event is upheld. However, the circumstances of the lunchroom incident, as a single event, and in the context of the particular workplace in this instance, do not establish behaviour or misconduct of a nature or gravity which would provide valid reason for dismissal from employment.

387 (b) - Notification of Reason for Dismissal

[101] At the time of the dismissal meeting held on 7 April, the employer provided the applicant with the pre-prepared letter of dismissal which represented notification of the reasons for dismissal.

387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[102] The employer had required the applicant to respond in writing to the Kelly and Milonakis allegations. Following the Sheehan allegations, the employer sent a letter to the applicant dated 12 March 2014 20 which again asked the applicant to respond to the most recent tranche of allegations.

[103] However, rather than stipulate that the applicant was required to respond in writing, the employer instead sought to meet with the applicant on 14 March. There was a twofold purpose of such a meeting, as is clearly discernible from the contents of the letter of 12 March. The meeting would provide an opportunity for the employer to hear the applicant’s response to the Sheehan allegations and it would also assist the employer as part of its consideration of the appropriate action to be taken.

[104] Due to the unavailability of the particular Union official that the applicant wished to have in attendance with him at the meeting, the meeting was not held as scheduled. The applicant proceeded to provide a written response to the Sheehan allegations. This process would seem to have satisfied any requirement for the applicant to have had an opportunity to provide response to the Sheehan allegations.

[105] However, the second purpose which had been identified for the meeting originally scheduled for 14 March, namely the question of consideration of the appropriate action that may be taken, was not discharged. In the period between 14 March and the dismissal meeting of 7 April, Moy determined that all of the allegations made against the applicant were proven and that the appropriate action to take was dismissal of the applicant. The letter of dismissal was prepared and although the preferred Union official was still unavailable on 7 April, the meeting went ahead.

[106] Although Moy suggested that the applicant may have said or done something at the meeting on 7 April which could have persuaded him not to implement the dismissal letter, such an approach does not provide for a realistic opportunity to respond to the reasons which provide basis for dismissal. The procedure is plainly injudicious as the opportunity to be heard was conducted after a determination had been made. The opportunity to respond was no more than a gesture which provided only appearance of open-minded consideration.

[107] Consequently, there was not a proper opportunity for the applicant to be heard in respect to the question of what action the employer might contemplate having found all of the Kelly, Milonakis and Sheehan allegations proven. The pre-prepared letter of dismissal created such momentum that the applicant would have been unlikely to have convinced Moy to change his mind.

[108] If natural justice was properly provided, Moy would have decided what appropriate action to take only after he had heard from the applicant in a meeting as was anticipated in his letter of 12 March. As he indicated in that letter, such a meeting would be an appropriate and necessary step as part of consideration of the appropriate action to be taken. A letter of dismissal prepared before a meeting establishes a predetermination such that the meeting is by and large, a futility. Such a process is akin to the Commission deciding a matter upon the filed documentary material and then holding a Hearing as a means to grant the losing party an opportunity to convince the Commission to change the decision.

[109] The dismissal of the applicant involved procedural deficiency such that the applicant was not provided a proper opportunity to be heard before the decision to dismiss was made and committed to writing. The applicant was denied natural justice.

387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[110] Initially there was no refusal to allow a support person of the applicant's choice to assist the applicant. However the employer subsequently decided that the 7 April meeting should proceed in the absence of the particular Union official that the applicant desired.

[111] On balance however, I do not believe that it was unreasonable for the employer to proceed with the meeting in the absence of a particular Union official, particularly because of the deferral of the earlier meeting which had been arranged 14 March. It would be unrealistic to suggest that disciplinary meetings would have to be arranged to suit the convenience of particular Union officials.

387 (e) - Warning about Unsatisfactory Performance

[112] This factor has no relevance in this instance.

387 (f) - Size of Enterprise likely to Impact on Procedures

[113] The size of the employer’s operation should have provided for a much higher standard of procedure to have been followed.

387 (g) - Absence of Management Specialists or Expertise likely to Impact on Procedures

[114] The employer did have dedicated employee relations management specialists, unfortunately there was evidence that such specialists may not have assisted in ensuring that both substantive and procedural fairness was provided to the applicant.

387 (h) - Other Relevant Matters

[115] There was no evidence that the employer considered either the length of service of the applicant or his particular personal circumstances and the impact that loss of employment would be likely to have on a person of his age and limited skills.

[116] The letter of dismissal stated that the applicant had an “absence of any remorse”, yet in the written response to the Sheehan allegations the applicant stated “I apologise if Eric thought I was talking to or about him”. This failure to acknowledge that the applicant had offered an apology to Sheehan was reflective of a general absence of balance and good conscience, evident in much of the approach of HCF.

[117] The failure to show the CCTV recording (Exhibit 8) to the applicant, although it had been provided to Kelly, represented another highly inappropriate procedural deficiency that demonstrated a very unfortunate bias against the applicant. The evidence of the investigation process conducted by HCF includes numerous examples of an unfortunate propensity to accept the word of the complainants and to search for material to support the allegations against the applicant. Conversely, the applicant was almost universally disbelieved and little attempt was made to investigate issues which may have supported his position.

[118] Consequently, an outcome which found all of the allegations proven without exception, qualification, or modification, was reflective of an approach which from the outset, had been anything but impartial and was contaminated by the hasty adoption of the finding that the applicant had been caught on CCTV doing the “chicken dance” at Kelly.

Conclusion

[119] The applicant was dismissed for inappropriate workplace behaviour which was held to have been in breach of the employer's Code of Conduct. Upon proper and objective analysis, the substantial findings upon which the employer established the reasons for dismissal cannot be sustained as facts. Apart from the lunchroom incident, and the more generally unpleasant behaviour of the applicant, the factual basis upon which the reasons for the dismissal of the applicant were based cannot be upheld.

[120] In particular, one major aspect of the reasons for dismissal which involved a finding that the applicant performed the “chicken dance” as an intentional act to intimidate, harass or otherwise harm another employee, was simply fanciful and did not represent valid reason for dismissal.

[121] The procedure that the employer adopted, including the use of a pre-prepared letter of termination given at a disciplinary meeting, meant that that meeting did not provide a proper or realistic opportunity for the applicant to be heard. The meeting of 7 April was not a forum for objective consideration of any explanation or defence that the applicant may have advanced. Instead the meeting had a largely predetermined outcome and thus denied natural justice to the applicant.

[122] The approach that the employer adopted when considering the allegations made against the applicant was not fair or impartial. The employer conducted an investigation which was biased against the applicant. The predisposition of the employer to readily accept the word of others and reject the applicant’s, may have been caused by the applicant’s somewhat disagreeable demeanour. However, even unpleasant people are entitled to justice.

[123] On balance, I have found that the applicant did misconduct himself and he made a serious breach of acceptable workplace behaviour when he racially insulted Milonakis during the lunchroom incident. The applicant has also engaged in unacceptably aggressive and terse interactions with other employees. The applicant should have been given a final warning about these matters and advised that if he was found, by just and fair process, to have been unable to modify his behaviour, he would be likely to be dismissed from his employment.

[124] In summary, the applicant’s dismissal was not for valid reason and it was determined by way of a highly erroneous procedure. Consequently, the applicant's dismissal was harsh, unjust and unreasonable.

Remedy

[125] The applicant has sought reinstatement as remedy for his unfair dismissal. The employer somewhat understandably, strongly opposed reinstatement.

[126] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss.390 - 393) of the Act. Section 390 of the Act is relevant to consideration in this instance and is in the following terms:

“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.”

[127] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant. I understand and appreciate the concerns that the employer and some other employee witnesses expressed about the potential for ongoing friction in the Shipyard which may be created by any reinstatement of the applicant.

[128] However, the applicant has not been solely responsible for the deleterious state of the workplace. The poor standards of behaviour and the fractious difficulties between workers at the Shipyard cannot be attributed to the applicant alone and visited upon him as punishment.

[129] In all the circumstances and after careful evaluation, particularly having had the benefit of observation of the various witnesses, I have formed the view that some of the concerns about reinstatement expressed by the employer and other employee witnesses were exaggerated. An improvement in the general standards of workplace behaviour at the Shipyard will require firm but fair treatment of all employees.

[130] Particularly when one of the major reasons for dismissal involved the fanciful “chicken dance” (as established from the review of the CCTV recording), an injustice of the highest order would stand without rectification if the applicant’s employment was lost. Therefore, on balance, I have concluded that reinstatement would not be inappropriate.

[131] Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair and I am prepared to make Orders for the reinstatement of the applicant.

[132] Orders providing for the reinstatement of the applicant will be issued separately [PR557876]. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Mr J Lavelle Wilson from the AMWU appeared on behalf of the applicant;

Mr B Cross, counsel, together with Ms A Grant, solicitor, from Corrs Chambers Westgarth, appeared for the employer.

Hearing details:

2014.

Sydney:

September, 24, 25, 29.

1 Exhibit 7.

2 Transcript @ PN1819.

3 Exhibit 11, Annexure “DM8”.

4 Exhibit 11, paragraph 40.

5 Exhibit 11, Annexure “DM24”.

6 Transcript @ PN652.

7 Transcript @ PN2225-2226.

8 For instance, Transcript @ PN1953-PN1957.

9 See Transcript @ PN1963,1964.

10 Exhibit 11 @ paragraph 39 and Transcript @ PN1967-PN1974.

11 Exhibit 15 @ paragraph 12 and Transcript @ PN2640-PN2643.

12 Exhibit 14 @ paragraph 6.

13 Exhibit 11 Annexure “DM17”.

14 Transcript @ PN2177-PN2180.

15 Transcript @ PN1997.

16 Exhibit 12 - Annexure “ES1”

17 Transcript @ PN2181-PN2190.

18 Transcript @ PN1563 and PN2609-PN2614 and PN2634.

19 Exhibit 11 - Annexure “DM25” @ point 1 on page 139.

20 Exhibit 11 - Annexure “DM18”.

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