Mrs Lesley Bowles v Gregg Lawyers - [2011] FWA 2796

[2011] FWA 2796

FAIR WORK AUSTRALIA

DECISION

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

Mrs Lesley Bowles
v
Gregg Lawyers
(U2010/777)

COMMISSIONER ASBURY

BRISBANE, 10 MAY 2011

Application for unfair dismissal remedy - No valid reason for dismissal - Employer had no reasonable basis to conclude that applicant was mainly responsible for workplace conflict or that she had unreasonably refused to participate in conflict resolution - Applicant was absent due to illness - Dismissal unfair on the grounds that it was harsh, unjust and unreasonable - Failure to pay entitlements on termination of employment added to unfairness - Compensation awarded - discount for contingencies and for contribution made by applicant engaging in workplace conflict.

OVERVIEW

[1] This is an application to Fair Work Australia (FWA) by Lesley Merelyn Bowles, for an unfair dismissal remedy in relation to the termination of her employment by Gregg Lawyers. The application is made under s.394 of the Fair Work Act 2009 (the Act).

[2] As required by s.396 of the Act, it is necessary to decide a number of initial matters before the merits of the application are considered. These matters are not in dispute. The applicant was dismissed by letter received on 12 May 2010 and the application for an unfair dismissal remedy was made on 19 May 2010, within the time required in s.349(2) of the Act.

[3] A jurisdictional objection raised by Gregg Lawyers asserting that Ms Bowles was engaged as independent contractor was withdrawn. I am satisfied that Ms Bowles was an employee of Gregg Lawyers and was a person protected from unfair dismissal as defined in s.382 of the Act. In relation to s.385(c) of the Act, there was nothing to indicate that Gregg Lawyers was a small business as defined in s.388 or that the Small Business Fair Dismissal Code was applicable. The dismissal was not a case of redundancy.

LEGISLATION

[4] Relevantly, by virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable; ...”

In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[5] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it in light of those criteria and to decide on balance whether a dismissal was harsh, unjust or unreasonable.

EVIDENCE

Witnesses

[6] Evidence in support of the application was given by Ms Bowles 1 and Dr Jennifer Emma Forbes, Ms Bowles’ General Practitioner. Evidence for Gregg Lawyers was given by John Stanley Gregg, Principal2 and Dianne Catherine Stewart, Administrative/Services Manager.3

[7] There was considerable evidence from both parties that was not relevant to the matters that are required to be considered in determining whether a dismissal is unfair. Relevant evidence is summarised below.

Ms Bowles’ Position with Gregg Lawyers

[8] Ms Bowles commenced performing book keeping work for Gregg Lawyers in May 2006, as a consultant and from 1 July 2008, as an employee. There was a suggestion in the evidence of Mr Gregg and the submissions on behalf of Gregg Lawyers, that Ms Bowles backdated the commencement of her contract of employment. There was no evidence to establish that this was the case. In any event, nothing turns on this point.

[9] There was some dispute about the nature and responsibilities of Ms Bowles’ position. It was suggested by Mr Gregg and Ms Stewart that Ms Bowles essentially took on the position of Practice Manager of her own volition, and was never formally appointed to that role. I do not accept that this was the case. I am satisfied that Ms Bowles was employed in the capacity of Practice Manager, and performed a range of duties as set out in her affidavit. Ms Bowles tendered a business card stating that she was the Practice Manager for Gregg Lawyers. 4 Mr Gregg agreed under cross-examination that he had discussed the title with Ms Bowles and approved all business cards used by employees of Gregg Lawyers, including Ms Bowles.

[10] In her role with Gregg Lawyers, Ms Bowles performed a variety of duties which are consistent with those of a Practice Manager. Those duties were principally associated with accounts and pay roll, and were detailed in the Affidavit setting out Ms Bowles’ evidence. 5 A significant part of those duties involved the installation of new practice management software known as Affinity to replace a system known as Locus. Mr Gregg agreed that Ms Bowles did perform the majority of these duties but said that a number of them were to be done in conjunction with Ms Stewart.6 In light of Mr Gregg’s evidence on this point, the attempt to portray Ms Bowles as an office administrator, was entirely unconvincing, as was the suggestion that Ms Bowles took on duties of her own volition.

Whether there was a valid reason for the dismissal?

Reasons for the dismissal

[11] The reasons given by Gregg Lawyers for the dismissal of Ms Bowles, as set out in the witness statement of Mr Gregg were:

Conflict between Ms Bowles and Ms Stewart;

Refusal of Ms Bowles to participate in a process to resolve conflict with Ms Stewart;

Failure of Ms Bowles to respond to emails sent to her while she was absent from the workplace allegedly due to illness;

Conduct of Ms Bowles in her dealings with Mr Gregg’s accountant while absent from the workplace allegedly due to illness; and

Complaints from co-workers, clients and consultants about Ms Bowles.

[12] After considering the evidence, I have come to the conclusion that none of these matters, either collectively or individually, constituted a valid reason for the dismissal of Ms Bowles.

Conflict with Ms Stewart

[13] I am unable to accept that the conflict between Ms Bowles and Ms Stewart was a valid reason for the dismissal of Ms Bowles. It was submitted on behalf of Gregg Lawyers that this was a case about two women who did not like each other. I agree with that submission. However, this case is also illustrative of the adage “it takes two to tango.” During the hearing of this matter, the mutual dislike between Ms Bowles and Ms Stewart was palpable. On one occasion it was necessary for me to inform Ms Bowles that she was making inappropriate eye contact with, and smirking at Ms Stewart, during Ms Stewart’s evidence. On the other hand, Mr Gregg and Ms Stewart were unimpressive witnesses, who clearly had a strong dislike for Ms Bowles and an interest in painting her as the aggressor in the altercations with Ms Stewart and with other staff. Having observed Ms Stewart in the witness box, I have no doubt that she was an active participant in the conflict with Bowles.

[14] I accept that there were heated discussions and altercations between Ms Bowles and Ms Stewart. Notwithstanding Ms Bowles evidence that she did not raise her voice during those altercations, it is more probable than not that both Ms Bowles and Ms Stewart raised their voices. I also accept that there were a series of issues between Ms Bowles and Ms Stewart where each made oral complaints about the other to Mr Gregg.

[15] On or around 4 February 2010, Mr Gregg sought to put into place a process to resolve the conflict between Ms Bowles and Ms Stewart. From that date until Ms Bowles was dismissed on 12 May 2010, there were no altercations between Ms Bowles and Ms Stewart. While there may have been ongoing tension, there is no evidence that this was any different from the situation which had existed for a considerable period of time, and in respect of which no formal action had been taken by Mr Gregg.

[16] A statement from Ms Stewart signed on 6 May 2010, detailing her grievances with Ms Bowles, was put into evidence as an Appendix to Ms Bowles’ witness statement. That signed statement was not put into evidence by Ms Stewart and she did not give evidence about it, other than in cross-examination. At the point the statement was made, Ms Bowles had been absent from the workplace since 27 April. There had been no incidents between Ms Bowles and Ms Stewart to trigger the statement, and the statement deals with past events.

[17] I am unable to accept, on the evidence before me, that Ms Bowles was the only aggressor in the conflict with Ms Stewart, or that she played a greater role in the conflict than Ms Stewart. I am also unable to accept that Mr Gregg had a reasonable belief that this was the case.

Lack of participation by Ms Bowles in process to resolve conflict

[18] I do not accept that Ms Bowles’ failure to participate in a process to resolve the conflict between her and Ms Stewart constituted a valid reason for her dismissal. In my view, the proposal for resolution was not put to Ms Bowles in a reasonable manner and the implications of failing to participate were not explained to her. I also do not accept that Ms Bowles threatened to resign her employment.

[19] The evidence establishes that at some point, on or around 4 February 2010, Mr Gregg told Ms Bowles that he wished to “outsource” the resolution of the conflict between her and Ms Stewart. Essentially, Mr Gregg proposed to engage a psychologist to conduct some sort of dispute resolution process. The exact form that the process was to take was not articulated. Mr Gregg also said that if the process did not succeed in establishing a working relationship between Ms Bowles and Ms Stewart, it was his intention to ask the psychologist to recommend which of the two employees should be dismissed. Initially Mr Gregg proposed to engage a psychologist who was a friend of Mr Gregg’s and Ms Bowles objected to the matter being dealt with by Mr Gregg’s friend. Mr Gregg instructed Mr Jones to find another psychologist, and Mr Jones did this, using the telephone book.

[20] According to Mr Gregg, Ms Bowles responded to his suggestion to outsource the resolution of her conflict with Ms Stewart, by saying that matters would not be resolved while Ms Stewart was there and that she was quitting and walking out. Mr Gregg said to Ms Bowles: “There’s the front door. I will simply freeze the Affinity installation, reactivate Locus and try Affinity another day, and I am not sacking Dianne [Ms Stewart].” Ms Bowles hesitated at the front door and then rushed, crying, into the office of Mr Malcolm Jones, a Solicitor with Gregg Lawyers. Mr Gregg also said that Mr Jones told him that Ms Bowles threatened to resign her employment unless Ms Stewart was dismissed.

[21] Ms Bowles denied telling Mr Gregg that she would quit, or demanding that Ms Stewart be dismissed. Ms Bowles agreed that she did become upset during this discussion, and went into Mr Jones’ office because she wanted a witness to the discussion with Mr Gregg and did not want Mr Gregg to see her crying. Ms Bowles also said that she was hurt and shocked at Mr Gregg’s suggestion that she needed to see a psychologist especially given the enormous time and effort she had put into setting up Affinity. Ms Bowles denied that Mr Gregg told her that if the psychologist could not resolve the conflict between her and Ms Stewart that Mr Gregg would ask the psychologist to recommend which of them should be dismissed.

[22] At some point Ms Bowles requested, and Mr Gregg agreed, that Mr Greig would also see the psychologist. The psychologist selected by Mr Jones requested a letter of consent to be signed by all parties. At 6.47 am on 8 February 2010, Mr Jones sent an email to Mr Gregg, Ms Bowles and Ms Stewart indicating that this consent would be required to be signed by all of them, and suggesting a format whereby the parties agreed to participate genuinely and in good faith, in consulting and counselling sessions to be conducted by the psychologist. 7

[23] On 9 February 2010 at 1.51 pm, Mr Jones forwarded the consent forms signed by Ms Stewart and Mr Gregg to Ms Bowles by email, requesting that she prepare and sign a similar document to enable the consultant to commence the process. 8 At 3.00 pm on that date, Mr Jones sent a further email to Ms Bowles noting her advice that she had not received the email of 8 February and stating that this might explain why her letter of consent was not received sooner. The email also states that it is entirely appropriate that Ms Bowles prepare a list of matters troubling her to take to the mediator/consultant and that other parties to the mediation have also been told to do this.9

[24] Ms Bowles said that she was unhappy about visiting a psychologist as she was not confident that this would resolve her communication issues with Ms Stewart. Ms Bowles also sought legal advice in relation to the matter and was told that she was not required to sign the consent form. Ms Bowles said that before signing anything, she wished to speak with Mr Gregg to tell him about her concerns. When Ms Bowles told Mr Gregg of her concerns about the proposal that she see a psychologist, he said that he did not want to discuss the matter.

[25] Ms Bowles said that because of Mr Gregg’s response, she tried to speak to Mr Jones, who became angry with her because he was very busy with his work, and did not have spare time to discuss her hesitation over meeting with the psychologist. On 9 February 2010 at 3.30 pm Ms Bowles forwarded an email to Mr Jones stating:

“Good afternoon Malcolm

I wish to apologise for any inconvenience you feel I have caused you and it has certainly not been my intention to compromise your situation or make any threat to you, I do appreciate what you have done.

I, clearly, have not understood the situation.”

Mr Jones responded in an email sent at 3.35 pm stating:

“That is fine Lesley

I do not know if this mediator/counsellor is any good as I have not used him before. I would appreciate feedback after you have met him, about whether he seems to know what he is on about.

Please send me a letter of consent so that I can start booking some appointment times.”

[26] Mr Gregg said that Mr Jones told him that Ms Bowles had accused him of being part of a conspiracy to get rid of her and that this caused offence to Mr Jones. This was said by Mr Gregg to be the reason that Mr Jones became angry with Ms Bowles and the reason for her sending him the email of 9 February 2010.

[27] Mr Gregg said that when Ms Bowles continued to fail to return the consent form, he told Ms Bowles that he had had enough and could not resolve the issues between her and Ms Stewart. Mr Gregg did not direct Ms Bowles to sign the consent form, and that he did not proceed with the proposal to engage the psychologist. Mr Gregg did not tell Ms Bowles that signing the form was a condition of her remaining in employment or that her refusal to sign the consent form could lead to the termination of her employment.

[28] Mr Gregg said that the matter went quiet for approximately one week and his relationship with Ms Bowles “cooled”. Ms Stewart said that Ms Bowles’ attitude deteriorated and on 16 February, Ms Stewart forwarded an email to Mr Gregg questioning what was happening with the psychologist and alleging that Ms Bowles was ignoring the problems. Ms Stewart’s email went on to indicate her discomfort at being required to sit beside Ms Stewart every day and expressing the hope that Ms Bowles would participate in the sessions with the psychologist. 10

[29] Mr Gregg said that his response to Ms Stewart’s email was to suggest that Ms Stewart move into a spare office and that a meeting be organised with Ms Bowles. Ms Bowles said that the decision to move Ms Stewart to another office was made as a result of a discussion between her, Mr Gregg and Mr Jones, and that it was to get Ms Stewart away from other staff. Mr Jones forwarded an email to Ms Bowles on 19 February 2010, outlining a possible office reorganisation, on the basis that Ms Stewart would move to a spare office. In addition to reasons such as space and privacy, the email states that:

“It is believed it will assist ease tensions between you and Dianne, by taking you each a bit more out of each other’s way. Sometimes just having a bit more distance between people helps things run more smoothly, and makes people feel less up-tight. Obviously it is expected that there will still be free communication between you both as necessary for the efficient running of the office (and if that becomes a problem, this arrangement will have to be reviewed).” 11

[30] The email of 19 February 2010 in relation to Ms Stewart moving office, made no mention of a meeting for the purpose of discussing Ms Bowles’ failure to sign the consent form in relation to the dispute resolution process or the ongoing conflict between Ms Bowles and Ms Stewart. On 27 April 2010 - the day Ms Bowles left the office saying that she was ill - Mr Jones sent an email to Ms Bowles and Mr Gregg requesting that they attend a meeting on 5 May 2010. The agenda for that meeting as outlined in the email relates to transition to the Affinity system and planning for what is to occur in the account keeping area for the 2010-2011 financial year, including the amount of time required for a book keeper and a succession plan in the event that Ms Bowles is away on leave or becomes sick or has an accident. 12 That email also makes no mention of Ms Bowles’ refusal to participate in the dispute resolution process or that the conflict between Ms Bowles and Ms Stewart was being viewed more seriously than had previously been the case.

[31] The issue of Ms Bowles’ failure to participate in the dispute resolution process was not raised formally with Ms Bowles until 4 May 2010 when an email dictated and edited by Mr Gregg and typed by Ms Stewart, was forwarded to Ms Bowles. 13 At that time Ms Bowles was absent from the workplace due to illness. It is notable that rather than directing Ms Bowles to sign the consent form, or stating the repercussions of her failure to do so, Mr Gregg simply states in the email that the involvement of a psychologist would no longer be pursued.14

[32] The dispute resolution process that was proposed was not clear. Ms Bowles said that she was being asked to see a psychologist. It was submitted for Gregg Lawyers in these proceedings that Ms Bowles refused to participate in mediation. That term was not used in the communication with Ms Bowles. The proposed consent letter refers to “consultation and counselling”. There was no evidence of any advice to Ms Bowles that the purpose of the process was to mediate between her and Ms Stewart. In the absence of a clear statement about the process that was being proposed by Mr Gregg, it was not unreasonable for Ms Bowles to refuse to participate. Further, Ms Bowles was not informed of the repercussions of refusing to participate in the process and that her refusal could form the basis of a decision to dismiss her.

[33] Mr Gregg gave evidence about Mr Jones’ involvement in efforts to resolve the conflict between Ms Bowles and Ms Stewart and attempts to organise the dispute resolution process. Mr Jones is a solicitor with Gregg Lawyers. Mr Jones was not called to give evidence and no explanation for his unavailability was provided. Given the significance of this issue to the case for Gregg Lawyers, I can only conclude that Mr Jones’ evidence would not have assisted the case for Gregg Lawyers.

[34] Mr Gregg’s inaction in relation to pursuing the matter of Ms Bowles’ failure to participate in the dispute resolution process, is inconsistent with a belief that this was a matter that justified her dismissal. Mr Gregg did not follow up on Ms Bowles’ failure to sign the consent form, and accepted that the matter could not be pursued because of that failure. Having accepted the refusal, Mr Gregg could not subsequently rely on this matter to constitute a valid reason for the dismissal of Ms Bowles.

Ms Bowles absence from the workplace due to illness

[35] It was submitted for Gregg Lawyers that Ms Bowles was “allegedly” ill when she was absent from the workplace between 27 April 2010 and her dismissal on 12 May 2010. I do not accept that this was the case. I am also unable to accept that failure on the part of Ms Bowles to respond to the series of emails sent to her during this time was a valid reason for her dismissal. The evidence establishes that Ms Bowles was ill when she left the workplace on 27 April 2010, and at the time of her dismissal on 12 May 2010 was unable, because of that illness, to respond to the emails sent to her. I am also satisfied that Mr Gregg knew, or should reasonably have known that this was the case.

[36] On 27 April 2010, Ms Bowles told Mr Gregg that she was too sick to work and was taking some accounts home to continue work from her home office. Ms Bowles also told Mr Gregg that she was going to see a doctor. Ms Bowles saw her doctor on 28 April 2010 and was sent for a series of tests and to see a throat specialist. Ms Bowles was given medical certificates for the next two days, and then a further two weeks. According to the evidence of Ms Bowles, the first medical certificate was handed to Mr Gregg’s daughter, who came to Ms Bowles’ home to undergo training on how to process the firm’s payroll. Ms Bowles said that this occurred on the Thursday of the week when she became ill. I infer that the medical certificate was handed to Mr Gregg’s daughter on Thursday 29 April 2010.

[37] Ms Bowles said that although she was unwell, she did some work from home. Ms Bowles did the payroll on Thursday, and Mr Gregg’s daughter Gabriella, came to her home to learn how to do the payroll. Ms Bowles had been training Mr Gregg’s daughter to assist with a number of her jobs.

[38] On 5 May 2010, Ms Bowles sent an email to Mr Jones in the following terms:

“Good morning Malcolm

I am working from my home office again - my throat is very swollen and difficulty in talking properly etc - they Doctor has suggest [sic] it stay at home this week again - I have had several tests done - I gave Gab the Doctors letter yesterday.

Unfortunately I will not be able to attend the meeting with you and John - I have still been doing most of the work from home with help from Gab. I did the EOM on the weekend...” 15

[39] On 12 May 2010, Ms Bowles’ husband sent a facsimile to Gregg Lawyers stating that medical certificates for Ms Bowles covering the period from 4 to 12 May and 11 to 25 May 2010 were attached. The facsimile also states that the certificate covering the period from 4 to 12 May 2010 was handed to Mr Gregg’s daughter in the previous week to bring into the office. 16 Mr Gregg confirmed in his evidence that he received the medical certificates, by referring to that facsimile. The transmission report tendered by Ms Bowles indicates that the facsimile containing the medical certificates was transmitted at 10.15 am on 12 May 2010. Mr Gregg did not dispute that the first medical certificate was handed to his daughter. I am satisfied that Mr Gregg was given the certificates at the times, and in the manner stated by Ms Bowles. It is also the case that Mr Gregg’s daughter was not called to give evidence and no explanation as to her unavailability was provided.

[40] Dr Forbes, Ms Bowles’ treating medical practitioner for more than 10 years, also gave evidence about Ms Bowles’ illness. Dr Forbes said that Ms Bowles presented in April 2010 with what was initially thought to be a flu-like illness, and after a series of investigations, and a referral to an ear nose and throat specialist, Ms Bowles was found to be suffering from bowing of the vocal chords and a tight throat, and this was thought to be due to stress. Doctor Forbes said that she recalled a consultation with Ms Bowles on 11 April 2010, where she suggested that Ms Bowles should not respond to a letter from Mr Gregg, because she was so distressed.

[41] Doctor Forbes said that Ms Bowles’ distress was very much linked to a fight at work, and it did not surprise her that Ms Bowles could write a letter to someone other than Mr Gregg but was unable to compose a letter to Mr Gregg. Under cross-examination, Doctor Forbes also said that Ms Bowles would have been able to undertake tasks such as completing BAS statements, doing the payroll and training Mr Gregg’s daughter. Ms Bowles could function in some areas of her life, but the thought of dealing with Mr Gregg distressed her. Doctor Forbes was unable to state whether Ms Bowles could have written a letter to Mr Gregg advising that she was too ill to respond to the emails, or requested Doctor Forbes to write such a letter on her behalf.

[42] It is clear from the evidence that Ms Bowles was genuinely ill and unable to attend the workplace, from 27 April 2010 until her dismissal on 12 May 2010, and that this illness prevented her from responding to emails sent to her by Mr Gregg in relation to her conduct and work performance. It is also clear that Mr Gregg did not have a reasonable basis upon which to conclude that Ms Bowles was not genuinely ill. The contents of the emails and the lack of response to them is also dealt with in relation to whether Ms Bowles had an opportunity to respond to reasons for her dismissal.

Communication with Mr Gregg’s Accountant

[43] I do not accept that Ms Bowles engaged in inappropriate communication with an employee of Mr Gregg’s Accountant while she was absent from the workplace “allegedly” due to illness. For the reasons set out above, Ms Bowles was genuinely ill at the relevant time. Mr Gregg variously described the communication between Ms Bowles and the employee of his Accountant as “alarming”, “disconcerting” and “out of the ordinary”. After considering the evidence I am unable to accept that this ground for Ms Bowles’ dismissal had any validity.

[44] In summary, Mr Gregg’s Accountant is Mr John de Blonk. Mr de Blonk’s employee, with whom Ms Bowles communicated by email and telephone, is Mr Adam Wright. On 5 May 2010 at 8.46 am Ms Bowles sent an email to Mr Wright. 17 That email states that it replaces an email sent on 4 May 2010 at 5.57 pm and contains some more details. Mr Gregg conceded under cross-examination that there was nothing alarming or out of the ordinary about that email. It simply sets out steps Ms Bowles has taken and payments she has made in relation to standard accounting matters. The email also refers to the fact that Ms Bowles has been away sick and has been told by the Doctor not to go to the office for the next week, and provides contact telephone numbers for Ms Bowles. On any view of the email sent by Ms Bowles to Mr Wright, the contents are nothing more than an outline of the work that Ms Bowles has done from her home, while absent from the workplace due to illness, to ensure that accounts and payments are up to date, in light of a forthcoming meeting between Mr Gregg and his Accountant.

[45] Mr Gregg said in his evidence that on 7 May 2010, Ms Stewart received a telephone call from Mr de Blonk, during which Mr de Blonk informed Ms Stewart that Mr Wright had received emails and a telephone call from Ms Bowles that were “disconcerting”. Mr Gregg states in his affidavit that “such email” is attached to his witness statement and marked “K”. The email attached to Mr Gregg’s witness statement and marked “K” is an email to Ms Bowles of 7 May 2010, stating that Mr Gregg has no option but to restrict Ms Bowles security access until he receives a response to his “previous email”. Also appended to Mr Gregg’s affidavit is an email from Ms Stewart to Ms Bowles stating:

“I have just received a call from John de Blonk who wished to inform John (Gregg) that you had, this afternoon, phoned his office and had a conversation with Adam (as John (Gregg) is out of the office I took the call).

Apparently your phone call was enough to alarm Adam, who described the phone call as disconcerting and out of the ordinary, and he immediately reported same to John de Blonk, who felt compelled to contact John to express his concern.

Accordingly, would you please cease all conversations with John de Blonk’s office, and, in the interim, I shall inform John (Gregg) of the above and have him speak with Adam on Monday to try to ascertain the areas of concern to him.”

[46] Mr Gregg said that he spoke with Mr de Blonk on 10 May 2010 who informed him that Mr Wright had stated that an email from Ms Bowles was “unusually extensive and in some ways strange” and that Ms Bowles had telephoned Mr Wright and made enquiries that were out of the ordinary, unnecessarily intrusive to Mr Gregg’s personal affairs and not necessary for Ms Bowles to know in relation to her work related functions. According to Mr Gregg’s evidence, Mr Wright stated to Mr de Blonk that he felt uneasy about the telephone call from Ms Bowles. Mr Gregg requested that Mr de Blonk commit this to writing and appended a letter from Mr de Blonk to his witness statement setting out these matters. 18

[47] That letter is dated 1 June 2010, and refers to Ms Bowles as Mr Gregg’s ex-employee. The letter makes no reference to the discussion that Mr Gregg alleged he had with Mr de Blonk about this matter on 10 May 2010. Mr de Blonk states in that letter that he has reviewed the file notes, which presumably included the file note prepared by Mr Wright dated 6 May 2010, 19 and that Mr Wright told him he felt uneasy. From that information, Mr de Blonk decided that Ms Bowles’ access to the computer systems, bank accounts and financial information of Gregg Lawyers should be suspended. I can see no basis on the evidence, for Mr de Blonk to have reached that conclusion.

[48] Also appended to Mr Gregg’s witness statement was an unsigned copy of a file note dated 6 May 2010, said to have been prepared by Mr Adam Wright, stating:

“Lesley contacted me this morning in regards to an email she forwarded on yesterday which was in relation to various matters in respect of John Gregg and his related entity’s affairs.

She asked if I had received the email which I responded that I had and whether it made sense. I advised that I had not yet had a chance to review the email.

After this she advised her contact details if I have any queries as she was unwell.”

[49] The memo from Mr Wright makes no mention of concern about the telephone conversation with Ms Bowles. The memo sets out a quite unremarkable conversation in relation to whether Mr Wright received an equally unremarkable email.

[50] Mr Gregg said in his evidence that he had not seen the email from Ms Bowles to Mr Wright or the memo from Mr Wright to Mr de Blonk, when he dismissed Ms Bowles. Mr Gregg also said that when he received the telephone call from Mr de Blonk about the incident, which on Mr Gregg’s evidence was 10 May 2010, he decided in his mind to dismiss Ms Bowles.

[51] Neither Mr de Blonk nor Mr Wright gave evidence in these proceedings and there was no explanation as to their non-availability. Much of Mr Gregg’s evidence in relation to this matter was hearsay and dealt with what he had been told by Mr de Blonk, or what Mr de Blonk said that Mr Wright reported to him. None of the documentary evidence tendered by Mr Gregg supports the conclusion that he reached about the interactions between Ms Bowles and Mr Wright.

[52] In my view, Mr Gregg did not have reasonable grounds for believing that Ms Bowles had engaged in inappropriate discussions with Mr Wright. This was not a valid reason for the dismissal of Ms Bowles.

Complaints from co-workers, clients and consultants

[53] The witness statements provided by Mr Gregg and Ms Stewart contained a considerable amount of hearsay in relation to incidents with co-workers, clients and consultants. While some written statements from these persons were provided to Ms Bowles before her dismissal, and appended to witness statements in these proceedings, it was apparent that those statements were prepared at or around the time that Ms Bowles was to be dismissed, and the matters set out in them had not been previously raised with her.

[54] I do not accept that there were complaints from clients and consultants sufficient to form the basis of a valid reason for Ms Bowles’ dismissal. Mr Gregg and Ms Stewart gave evidence of complaints from co-workers, clients and consultants about Ms Bowles’ attitude and the manner in which she dealt with them.

[55] A number of written complaints about Ms Bowles were appended to a Response to the application for an unfair dismissal remedy filed on behalf of Gregg Lawyers on 3 June 2010. Gregg Lawyers did not append these documents to witness statements as required by the Directions Order in relation to this hearing. Gregg Lawyers was offered an opportunity to put parts of its Response document into evidence through Mr Gregg, but declined to do so. Accordingly, I have not taken those documents into account. I also note that they are dated either a very short time before the dismissal of Mr Bowles, or after the dismissal. Mr Gregg did not take action in relation to the complaints because of his view that the conduct of the complainants had contributed to the situations about which they complained. This is apparent from an email to Ms Bowles of 4 May 2010, which states that a number of consultants and clients have complained about Ms Bowles, but Mr Gregg decided to “park” this issue as he had also found some of the persons who made complaints to be rude, abrupt and confusing. 20

[56] The written complaints in evidence, were put in by Ms Bowles, who attached them to her witness statement and gave evidence that they were received by her via a courier, on 7 May 2010. The written complaints comprise a statement from Ms Stewart dated 6 May 2010, and a joint statement from two employees of Gregg Lawyers, Ms Shand and Ms Stephenson dated 7 May 2010. Ms Stewart did not give evidence about her statement of 6 May 2010. Ms Shand and Ms Stephenson were not called to give evidence and no explanation was provided in relation to their unavailability. According to the statements, the complaints about Ms Bowles are ongoing. However, there is no evidence that any of these matters were raised formally with Ms Bowles prior to the statements being couriered to her home on 7 May 2010.

[57] All of the complaints were generated in circumstances where Mr Gregg was actively considering, or had decided, to dismiss Ms Bowles, and it is more probable than not that they were generated for that purpose. In my view, if these issues were viewed seriously enough to constitute a basis for Ms Bowles’ dismissal, they would have been formally dealt with prior to the point at which the dismissal was well in train.

The decision to dismiss Ms Bowles

[58] Mr Gregg said that when he did not receive a response to issues raised in his emails, he formed the view that, “be it right or wrong”, Ms Bowles was aware that the meeting scheduled for 5 May would relate to her ongoing employment, and decided to use sick leave entitlements to avoid confrontation. Mr Gregg believed that while stating that she was too sick to work at the office, Ms Bowles was more than able to formulate and send emails to his accountant which were described by the accountant as unusually extensive, and to engage in telephone discussions as to his personal financial affairs. Ms Bowles was also able to train a junior staff member who had no knowledge of payroll tax and wages, to conduct the firm’s payroll. Accordingly Mr Gregg terminated Ms Bowles’ employment by written notice which was both emailed and couriered to her.

[59] For the reasons set out above, the entire rationale for the dismissal of Ms Bowles was based on views that are not defensible or justifiable on an objective analysis of the relevant facts. Accordingly, there was no valid reason for the dismissal of Ms Bowles.

Whether Ms Bowles was notified of the reason for her dismissal

[60] Ms Bowles was notified of the reason for her dismissal by an email dated 12 May 2010, sent at 3.56 pm and also couriered to her on that date.

Whether Ms Bowles was given an opportunity to respond to any reason related to her capacity or conduct

[61] Ms Bowles was dismissed for reasons relating to her capacity or conduct, and was not given an opportunity to respond to those reasons. I have reached this conclusion for the following reasons. There is no evidence of any issue being raised with Ms Bowles in relation to her capacity or conduct prior to the email forwarded to Ms Bowles on 4 May 2010 setting out issues which Mr Gregg intended to raise at a meeting scheduled for 5 May 2010. 21 That meeting had been arranged by Mr Jones, through an email sent to Ms Bowles on 27 April 2010.22 The email of 27 April 2010 contained an agenda for the meeting on 5 May 2010. The matters set out in the email of 4 May 2010 bear no resemblance at all to the agenda previously advised to Ms Bowles on 27 April 2010.

[62] The email of 27 April 2010 is in relation to a meeting to discuss accounting matters raises no issue whatsoever with Ms Bowles’ conduct or work performance. The email of 4 May sets out numerous allegations and complaints about Ms Bowles and her interactions and dealings with a wide range of people. That email also indicates that it was dictated and edited by Mr Gregg and typed by Ms Stewart. The tone of the email with respect to Ms Stewart, gives the clear message that Ms Stewart is viewed by Mr Gregg as the innocent party in the conflict. For example, the email states in relation to staff alleging that they have been bullied by Ms Bowles:

“I asked all three of them if Dianne [Stewart] had been involved in this in any way and they basically told me that if it wasn’t for Dianne they would have already left and that Dianne had said that she had the same problem for quite a while, and just to see myself about it privately.”

[63] The email goes on to state that:

“Dianne has been with the firm for over 10 years and I have not seen her have a problem like this with any other staff member”.

The email concludes with the following statement:

“To keep faith with the support staff I have now asked them to report directly to myself. I asked Malcolm, being an impartial person, if he would carry the staffing responsibilities in this situation, but he declined. Accordingly, when I am not available, they are now to report to Dianne.

Unfortunately I do not know how to resolve the above but I cannot let it continue.”

[64] Given that Ms Stewart was the other principal protagonist in the conflict which was to be subject of the meeting scheduled for 5 May 2010, it was inappropriate for her to type an email directed to Ms Bowles, which clearly indicated that Ms Stewart’s version of events was preferred, before there was any input from Ms Bowles. It is implicit that any response from Ms Bowles would have been an exercise in futility.

[65] It is also the case that the email was sent to Ms Bowles at a time when Mr Gregg knew, or should reasonably have known, that Ms Bowles was ill and unable to attend a meeting. Ms Bowles told Mr Gregg she was ill when she left the office on 27 April 2010 and that she was going to see a doctor. Mr Gregg did not dispute that he received medical certificates to cover Ms Bowles’ absence from the workplace for a total period from 4 to 25 May 2010.

[66] The first medical certificate from 4 to 12 May 2010 covered the day on which Ms Bowles had been requested to attend a meeting with Mr Gregg and Mr Jones. Ms Bowles also sent an email to Mr Jones on 5 May 2010 at 7.42 am stating that she had a swollen throat and was unable to attend the meeting. The email also advises that Ms Bowles has seen a Doctor and has been advised to stay at home that week, and that a medical certificate to this effect has been provided to Mr Gregg’s daughter. 23 In my view it was entirely appropriate that Ms Bowles send an email to Mr Jones advising that she could not attend the meeting of 5 May 2010, given that Mr Jones had sent her the email inviting her to that meeting.

[67] Given Ms Bowles’ illness and her advice to Gregg Lawyers in this regard, it was not unreasonable that she did not respond to Mr Gregg’s email of 4 May 2010. Ms Bowles claimed that she did not receive this email until 6 May 2010 as she was having issues with her email. It is the case that Ms Bowles managed to send an email to Mr Jones on 5 May 2010. However it is also the case that Mr Gregg caused the email dated 4 May 2010 to be couriered to Ms Bowles and thereafter sent other communications both by email and courier. This indicates that Ms Bowles was having difficulties with her home email, or that Mr Gregg accepted that this was the case.

[68] In my view, a reasonable employer would have waited until Ms Bowles was fit to return to work, before pressing the kinds of issues raised by Mr Gregg in the email of 4 May 2010. Instead, Mr Gregg continued to send a barrage of emails to Ms Bowles and to demand detailed written responses to those emails. 24 At no point did Mr Gregg impose deadlines for responses and there was no warning about the implications of failing to respond to them. That any response from Ms Bowles would have been an exercise in futility, is evidenced by the email informing Ms Bowles that her employment was terminated.

[69] That email, sent at 3.56 pm on 12 May 2010, referred to the earlier emails and the failure of Ms Bowles to provide a detailed written response. It states that Mr Gregg has allowed Ms Elizabeth Woodgate remote access into the firm’s accounting systems and she estimates that the time required for the position held by Ms Bowles is approximately 1 - 2 days per week at best. The email invites written comments on this matter forthwith, and goes on to inform Ms Bowles that her employment is terminated immediately. 25

Any unreasonable refusal to allow Ms Bowles to have a support person present to assist at any discussions relating to the dismissal

[70] There were no discussions relating to the dismissal, and this factor has no relevance in this case.

Whether Ms Bowles was warned about unsatisfactory performance before the dismissal

[71] I do not accept that Ms Bowles was warned that her work performance was unsatisfactory, prior to her dismissal. While there were undoubtedly issues with Ms Bowles’ relationship with Ms Stewart, and probably with other co-workers as well as clients and consultants, there is no evidence upon which I could be reasonably satisfied that Ms Bowles was warned about these matters. There were no written warnings. This is at odds with Mr Gregg’s preparedness to put allegations in writing at great length, and subject Ms Bowles to a barrage of emails just prior to her dismissal.

[72] The emails sent to Ms Bowles can in no way be described as warnings. Although responses are requested, no deadlines for those responses are provided, and there are no warnings about the implication of failure to respond. Further, it is improbable that an employer who could produce numerous emails setting out allegations about long term behaviour, would not have given formal warnings to Ms Bowles at an earlier stage, if the behaviour was viewed as being serious enough to justify her dismissal. On Mr Gregg’s own evidence, complaints about Ms Bowles’ attitude and behaviour were “parked” and the issue of her failure to sign the consent to participate in a dispute resolution process was not pursued.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[73] The size of the enterprise is not relevant in the present case, and any disadvantage on this ground is mitigated by the fact that it is a legal practice with at least two full time solicitors.

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

[74] Gregg Lawers does not have dedicated human resource management specialists or expertise. However, it is a law firm employing least two Solicitors, including the Principal Mr Gregg. The stated lack of expertise in employment law matters on the part of Mr Gregg is at odds with the following statement, which appears under the electronic signature on numerous emails forwarded to the Tribunal by Mr Gregg in connection with these proceedings:

“We practice in all areas of law: Residential and Commercial Conveyancing/Business Sales and Purchases/Leasing/Establishing Companies and Trusts/Family Law and De Facto Matters/Traffic Offences/Employment Disputes/Litigation/Debt Collection and Insolvency/Wills and Powers of Attorney.” [emphasis added]

[75] In my view, the fact that the enterprise in this case employs at least two legal practitioners, more than offsets the lack of dedicated human resource management specialists or expertise.

Any other matters FWA considers relevant.

[76] Mr Gregg gave evidence about the effect of a marriage breakdown upon him and that he suffered from depression as a result. I have taken into account that this may have impacted on the manner in which Mr Gregg dealt with Ms Bowles. However, I have also taken into account the fact that Mr Gregg was able to operate a law firm and to work actively in that firm during the relevant period.

[77] Ms Bowles’ age was also put in issue by Gregg Lawyers, and there was suggestion that Ms Bowles had stated that she was 62 years of age, with the intention of obtaining a higher amount of compensation on the basis of her having three years left in the workplace. Ms Bowles maintained that the reference in a submission filed on her behalf, to her being 62 years of age was a typographical error and was not intended to mislead the Tribunal. Ms Bowles also said that she is 65 years of age, and that at the point of her dismissal, intended to work for another year.

[78] Ms Bowles estimated that there was work until the end of the year in order for the Affinity program to be fully implemented and this was not contested. Mr Gregg provided evidence that a consultant had assessed Ms Bowles’ role and estimated that the time required to perform her duties was one to two days per week at best.

[79] Ms Bowles was not paid her termination entitlements, including wages in lieu of notice, accrued annual leave or sick leave for the period that she was absent from the workplace due to illness, upon her dismissal. The letter informing Ms Bowles of her dismissal stated that her termination entitlements would be forwarded the week after the dismissal. Ms Bowles’ legal representative also sent a letter of demand in relation to those entitlements on 1 June 2010. Following intervention and investigation by the Office of the Fair Work Ombudsman, Ms Bowles was paid the amount of $7,742.00 on 3 September 2010.

[80] Mr Gregg maintained that there was a question about when Ms Bowles became an employee and whether she had backdated the relevant date, and that he did not want to pay Ms Bowles’ entitlements until that question was resolved. Mr Gregg also maintained that it would have been inappropriate for him to simply pay what he believed was owed to Ms Bowles because she would dispute the amount regardless. Mr Gregg said that he preferred to wait until the correct calculation was undertaken by the Office of the Fair Work Ombudsman, notwithstanding that he had access to records which would have assisted him to calculate the amount owing to Ms Bowles.

[81] In my view, unfairness can arise from a failure by an employer to pay statutory entitlements to an employee upon termination. In the present case, Ms Bowles was not summarily dismissed and had accrued personal and annual leave entitlements. Given that the employer is a legal firm, it is unreasonable that some research was not undertaken to ascertain the correct entitlements so that they could be paid in a timely manner. Even if Mr Gregg disputed the quantum of the entitlements with respect to notice, as a legal practitioner he was in a position to make an assessment as to what he believed should have been paid, and to at least pay that amount.

CONCLUSION IN RELATION TO WHETHER DISMISSAL UNFAIR

[82] After considering and weighing up the factors in s.387 of the Act, I have reached the conclusion that Ms Bowles’s dismissal was unfair, on the basis that it was harsh, unjust and unreasonable.

[83] There was no valid reason for the dismissal and the grounds upon which the dismissal was based were not defensible or justifiable on an objective basis. Ms Bowles had no opportunity to respond to the allegations and was not warned about the matters upon which the employer relied to justify her dismissal, prior to the dismissal being effected.

[84] The dismissal was harsh because it was disproportionate to the gravity of Ms Bowles misconduct with respect to her part in the conflict with Ms Stewart and with co-workers. It was also harsh because Ms Bowles was absent from the workplace due to illness at the time she was dismissed. Further, the dismissal was harsh because Ms Bowles was not paid her entitlements for almost four months after her dismissal.

[85] The dismissal was unjust because Ms Bowles was not guilty of some of the misconduct on which Gregg Lawyers relied to justify her dismissal. Ms Bowles did not engage in inappropriate contact with Mr Gregg’s Accountant. Ms Bowles did not unreasonably refuse to participate in a dispute resolution process with Ms Stewart. Ms Bowles was genuinely ill and did not absent herself from the workplace to avoid responding to the allegations made against her. The dismissal was also unjust because Ms Bowles was not afforded a reasonable opportunity to respond to allegations made against her and was not warned about the conduct upon which the decision to dismiss her was based.

[86] The dismissal was unreasonable because the decision to dismiss Ms Bowles was made on the basis of inferences which could not reasonably be drawn from the material before the employer. In particular, the decision to dismiss Ms Bowles was unreasonable because of inferences that were drawn about her absence from the workforce “allegedly” due to illness, in circumstances where there was clear medical evidence that Ms Bowles was ill. There was also no reasonable basis for Mr Gregg to infer, from the material before him, that Ms Bowles had engaged in an inappropriate discussion with his Accountant.

REMEDY

[87] Having found that Ms Bowles’ dismissal was unfair, on the grounds that it was harsh, unjust and unreasonable, it is necessary to consider the question of remedy. Ms Bowles was a person protected from unfair dismissal, and should be granted a remedy for her unfair dismissal. Ms Bowles does not seek reinstatement. Given the circumstances in which the dismissal occurred and the manner in which it was effected, reinstatement is not an appropriate remedy. In all of the circumstances of this case, an order for compensation should be made.

The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) 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 compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[88] Considering the factors I am required to take into account in determining an amount of compensation, as provided in s.392(2) of the Act, I have come to the following conclusions. There is nothing to suggest that Gregg Lawyers is not a viable business, and I am satisfied, as required by s.392(2)(a) that the Order I intend to make will not impact in this regard. Ms Bowles was employed by Gregg Lawyers for two years, and I have taken this into account as required by s.398(2)(b).

[89] In terms of the provisions of s.392(2)(c) I am of the view that Ms Bowles’ employment would not have continued for a lengthy period. I am also of the view that Ms Bowles would not have remained in employment for the twelve month period indicated by her. Ms Bowles was an active participant in conflict in the workplace and made an equal contribution to the breakdown in the relationship with Ms Stewart. Having observed both Ms Bowles and Ms Stewart give their evidence, I am of the view that it is more probable than not that at some point in the foreseeable future, the conflict between them would have escalated and come to a head.

[90] I am also of the view that had Ms Bowles been offered an opportunity to participate in a properly conducted process such as mediation, and failed to do so, Mr Gregg would have been entitled to form the view that she was not prepared to resolve the differences with Ms Stewart. Mr Gregg would also have been entitled to dismiss Ms Bowles on this ground, provided that he warned her about the repercussions of failing to resolve the conflict with Ms Stewart, and afforded her procedural fairness.

[91] Ms Bowles had medical certificates to cover an absence from the workplace until 25 May 2010. In my estimation, Ms Bowles’ employment would not have continued beyond twelve weeks from the date of her return from sick leave. An adjustment of 25% should be made for contingencies, including that Ms Bowles may have decided not to return to work at all. I make no adjustment for the termination entitlements paid to Ms Bowles in September 2010, because those entitlements were paid outside the period for which compensation was awarded when it is adjusted for contingencies. I am also of the view that Ms Bowles’ conduct contributed to her dismissal and that an additional adjustment of 20% should be made to reflect this. It is likely that a 65 year old woman, who intended to work for only a further year from the date of her dismissal, and who was suffering from an illness when she was dismissed, would have difficulty in obtaining other equivalent employment. Accordingly I do not intend to make any adjustment for failure to mitigate loss of employment in this case.

[92] Ms Bowles was paid an hourly rate of $40 and it appears from the investigations undertaken by the Office of the Fair Work Ombudsman, that the hourly rate was converted to a weekly rate by multiplying it by 38. Accordingly, Ms Bowles’ weekly salary was $1,520.00. The amount of compensation is $18,240.00. For the reasons set out above, this amount is reduced by 25% ($4,560) and a further amount of 20% ($3,420.00) resulting in an award of compensation of $10,260.00.

[93] An Order will issue with this Decision that Gregg Lawyers pay to Lesley Merelyn Bowles the amount of $10,260.00 taxed according to law, within 14 days of the date of this decision.

COMMISSIONER

Appearances:

Mr R. King on behalf of the Applicant.

Mr G. Smart on behalf of the Respondent.

Hearing details:

2010.

Brisbane:

November 18, 19.

1 Affidavit sworn 5 October 2010 Exhibit 1; Affidavit sworn 18 November 2010 Exhibit 2; and Affidavit sworn 18 November 2010 Exhibit 3.

2 Affidavit sworn 19 October 2010 Exhibit 4 and Affidavit sworn 17 November 2010 Exhibit 5.

3 Affidavit sworn 19 October 2010 Exhibit 7; Affidavit sworn 17 November 2010 Exhibit 8.

4 Exhibit 1 “LB1”.

5 Exhibit 1 paragraph 26.

6 Exhibit 4 Statement of John Gregg paragraph 11.

7 Exhibit 4 Statement of John Gregg Annexures “B” and “C”.

8 Exhibit 4 Statement of John Gregg Annexure “D”.

9 Exhibit 4 Statement of John Gregg Annexure “E”.

10 Exhibit 4 Statement of John Gregg Annexure “G”.

11 Exhibit 4 Statement of John Gregg Annexure “H”.

12 Exhibit 4 Statement of John Gregg Annexure “I”.

13 Exhibit 4 Statement of John Gregg Annexure “J”.

14 ibid

15 Exhibit 1 Statement of Lesley Bowles Annexure “LB4”.

16 Exhibit 1 Statement of Lesley Bowles.

17 Exhibit 1 Statement of Lesley Bowles Annexure “LB5”.

18 Exhibit 4 Statement of John Gregg Annexure “M”.

19 Exhibit 4 Statement of John Gregg Annexure “M”.

20 Exhibit 4 Statement of John Gregg Annexure “J”.

21 Exhibit 4 Statement of John Gregg Annexure “J”.

22 Exhibit 4 Statement of John Gregg Annexure “I”.

23 Exhibit 1 Statement of Lesley Bowles Annexure “LB4”.

24 Exhibit 4 Statement of John Gregg Annexure “N”.

25 Exhibit 1 Statement of Lesley Bowles Annexure “LB10”.

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