Ms Azidah Atan v SMEC Services Pty Ltd T/A SMEC Australia
[2011] FWA 3084
•20 MAY 2011
[2011] FWA 3084 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Azidah Atan
v
SMEC Services Pty Ltd T/A SMEC Australia
(U2010/14803)
COMMISSIONER CRIBB | MELBOURNE, 20 MAY 2011 |
Termination of employment – jurisdiction - extension of time.
[1] This decision arises from an application by Ms Azidah Atan (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her unfair dismissal by SMEC Services Pty Ltd (the respondent). The application was lodged with Fair Work Australia (FWA) on 7 December 2010.
[2] The application was the subject of a conciliation conference but the matter did not settle. It was the respondent’s contention that Ms Atan’s application had been lodged out of time based on their view that the date the dismissal took effect was 26 October 2010. The applicant’s submission was that the dismissal took effect on 23 November 2010. If an extension of time application was required of the applicant, the respondent objected to the extension of time being granted.
[3] Therefore, during the hearing on 18 February 2011, it was necessary for potentially two issues to be decided. The first issue was the date the termination of the applicant’s employment took effect. The answer to that woulddetermine whether secondly, it was necessary for Ms Atan to make an application for an extension of time.
[4] During the hearing, submissions were made by the parties regarding the date of Ms Atan’s dismissal. Having considered all of the material before me, the Tribunal determined that the applicant’s dismissal took effect on 26 October 2010.
[5] As the result of that determination, Ms Atan made an application for an extension of time. Following discussions with the parties regarding how this application would be dealt with, it was agreed that the applicant would file written submissions by 4 March 2011. The respondent was to file their written submissions by 18 March 2011 with any submissions in reply from the applicant by 1 April 2011. Written submissions, together with witness statements were received from both parties. The Tribunal was to decide the extension of time application on the basis of the written submissions.
[6] The date of dismissal, having been determined on transcript during the hearing on 18 February 2011, this decision therefore, deals solely with Ms Atan’s application for an extension of time.
[7] At the hearing, the applicant was represented by Mr P. Franzese, solicitor and the respondent by Mr S. Burvill of counsel.
EVIDENCE
APPLICANT
Ms Atan
[8] An unsigned witness statement was submitted together with a number of attachments.
[9] It was Ms Atan’s evidence that, on 26 October 2010, Mr Hooper advised her that there had been a restructuring in Corporate Human Resources (HR) and that her services were no longer required. He had stated that it affected Ms Atan and one other person. When asked by Ms Atan whether she could be re-deployed to another position outside Victoria, it was said that Mr Hooper had responded that there were no other positions. 1
[10] Ms Atan recalled that she was handed a letter entitled Redundancy Advice, dated 26 October 2010. 2 Mr Hooper had also told her that there were no issues with her performance.3
[11] Finally, Ms Atan’s statement indicated that Mr Hooper had said that she was to leave that day and to return the laptop. She could come back on Monday for her personal belongings. It was stated that he had asked her to sign an agreement with the terms of the 26 October 2010 letter. Ms Atan recalled that she had refused and that Mr Hooper had responded that she would not be paid in lieu unless she signed it. She recalls that he became agitated and had stood up and raised his voice considerably. Ms Atan said that she did not sign the letter and that she felt harassed and bullied by him. Ms Atan recalled that Mr Hooper had stood over her in a threatening manner demanding that she sign the letter. 4
[12] Attachment 3 to Ms Atan’s witness statement, contained an email that she sent to the Chairman and the CEO of the company regarding the events of 26 October 2010, Mr Hooper’s alleged bullying and that she had been invited to join SMEC by SMEC International in 2006/2007. 5 The CEO’s response was that he wished to provide her assistance in finding another position in Australia. He also stated that she had made complaints about Mr Hooper and other HR personnel in September 2010 but that she had withdrawn them.
[13] Ms Atan also recounted that she attended an appointment under the company’s Employee Assistance Programme (EAP) on 9 November 2010. After the session, Ms Atan said that she was visibly upset and depressed by her termination and the bullying and harassment. It was said that the psychologist had suggested another session the following week. However, Ms Atan stated that she had cancelled it as she was depressed and had chest pain from the stress of the bullying and harassment and her dismissal. 6
[14] On 8 November 2010, Ms Atan went to the doctor for help with the depression. She said that she had lost her appetite, could not sleep and was unable to perform day to day activities e.g. cooking, washing. She indicated that she was prescribed medication which upset her knowing that she needed medication to help her with her depression. Ms Atan stated that, over the next two weeks, whilst the medication started to take effect, she felt sick and was unable to do anything about finding a new job, going to immigration or attending to her finances. 7
[15] Also on 8 November 2010, Ms Atan recalled that she discovered that she had been paid the redundancy. She said that she was scared that Mr Hooper would not pay her as she took his threat on 26 October 2010 very seriously. 8
[16] With respect to the bullying, harassment and discrimination that she had received from Mr Hooper, Mr Mulrooney and other HR staff, Ms Atan set out a chronology of instances of this. 9 The applicant indicated that she had raised Mr Mulrooney’s bullying and harassment and micro management with Mr McDowell and Ms Findlow.10
[17] In terms of Mr Hooper, the applicant recounted that she had sent an email to Ms Findlow on 23 September 2010 outlining her complaints about Mr Hooper’s conduct towards her. 11 Ms Findlow had responded the same day stating that, if she wanted to make a formal complaint, she needed to advise her of this and provide specific examples of the behaviour she was complaining about.12 In the first week of October 2010, Ms Atan met with Ms Findlow to discuss Mr Hooper’s conduct towards her. It was Ms Atan’s view that her complaints about Mr Hooper’s behaviour had fallen on deaf ears and that the bullying and harassment had not been adequately addressed. She said that she had been given advice as to how to handle the situation but that there had been no intervention by the company to resolve the issues.13
RESPONDENT
[18] Signed witness statements were made by Mr C Hooper (Group General Manager, Human Resources), Ms V Findlow (Human Resources Manager- Southern Region), Mr C Mulrooney (formerly Manager Administration, Civil Infrastructure) and Ms C Hyde (Human Resources Co-ordinator).
Mr Hooper
Events of 26 October 2010
[19] It was Mr Hooper’s written evidence that he advised Ms Atan that her position was being made redundant and that her employment was being terminated with immediate effect. He recalled that he told Ms Atan that she would be paid her full entitlements on 1 November 2010 which included 4 weeks pay in lieu of notice. Mr Hooper stated that he said to Ms Atan that her employment would end that day and that she did not need to attend work after that. He indicated that he had asked Ms Atan to countersign the 26 October 2010 letter but that she had declined. Mr Hooper stated that he had been advised that Ms Atan was paid her full entitlements into her bank account on 1 November 2010. 14
[20] Mr Hooper denied that he had stood over Ms Atan or raised his voice. He indicated that he had offered her the services of EAP to assist her in preparing a CV and also with counselling and advice. 15
[21] It was stated by Mr Hooper that Ms Atan’s dismissal was a genuine redundancy following a review of the HR division and a consequential restructuring. The purpose of the review was to ensure that HR met its strategic objectives over the next 3 years. The outcome of the review was said to be that HR’s current structure did not service the company’s worldwide business well. Consequently, he recommended a new structure which was implemented in October 2010. Mr Hooper recalled that it was discussed at meetings in Melbourne where Ms Atan took the minutes. It was also said that the Melbourne and Cooma offices were all part of the same Corporate HR department, which was restructured, not two separate departments. 16
[22] With respect to the reorganisation, Mr Hooper explained that four positions and four employees were made redundant. However, two new positions in Melbourne HR were created (Strategic HR Manager and HR Inquiries Officer). The National Training Manager had resigned in June and his position was not filled but was replaced, as part of the restructure, with that of Training and Development Co-ordinator. It was stated that Ms Atan’s position of HR Recruitment and Administrator was not required in the new structure. Mr Hooper also explained that, in addition to Ms Atan, there were two people made redundant from the Cooma office and another Melbourne office person. 17
[23] Prior to deciding that Ms Atan was to be made redundant, Mr Hooper recounted that other possible employment opportunities within the company were reviewed against Ms Atan’s skills and experience. It was stated that Ms Atan did not have the requisite skills or experience to undertake either of the two new Melbourne roles nor the new Training and Development Co-ordinator position. 18
[24] Further, it was disputed by Mr Hooper that the Training and Development Co-ordinator position had subsumed her duties. He said that it had taken over the National Training Manager’s duties together with additional duties. With respect to Ms Atan’s former duties, Mr Hooper stated that they had been predominately spread between Mr Mulrooney and Ms Hyde. 19
[25] With respect to Ms Atan’s proposed application for permanent residence, Mr Hooper said that the applicant had not told him that she was delaying her application until early 2011 due to financial constraints. 20
[26] In terms of Ms Atan’s contention that he had bullied and harassed her, Mr Hooper’s response was that he did not and that he had treated Ms Atan reasonably and fairly and with professional courtesy. He also said that Ms Atan’s withdrawal of her allegations was not the result of any pressure or interference from him in the investigation of the complaints. Mr Hooper also noted that HR had not received a complaint from Ms Atan regarding Mr Mulrooney. 21
[27] Mr Hooper refuted that he had rejected Ms Atan or her involvement in the department because she was Asian. 22
Ms Findlow
Ms Findlow’s written evidence was that:
- Ms Atan had emailed complaining of Mr Hooper’s behaviour on 23 September 2010.
- She had responded asking if Ms Atan wanted to make a formal complaint so that she could commence the formal investigation process.
- On 27 September 2010, she sent a follow-up email as she had not heard back from Ms Atan.
- Ms Atan came to see her to discuss her current role but had not wanted to discuss the allegations in detail.
- She received an email from Ms Atan on 28 September 2010 advising that, at the moment, she would let the official complaint go but had wanted to let her know some things that had happened.
- She denied that Ms Atan had told her that she was delaying making an official complaint for fear of losing her job. Ms Findlow stated that the only exchange between she and Ms Atan, on this subject, was Ms Atan’s email to her of 28 September 2010. 23
Ms Hyde
[28] In her witness statement, Ms Hyde recounted an incident in August 2009 involving Ms Atan. It had occurred as a result of she and Ms Atan being required to take over various aspects of the role of a departing employee, Mr MacFarlane. A training session was set up to facilitate the handover of Mr MacFarlane’s duties. Ms Hyde recalled that Ms Atan had kept on interrupting Mr MacFarlane when he was outlining how SMEC Services Pty Ltd’s direct labour cost system worked. He had insisted that Ms Atan stop interrupting him and, after remaining silent for a while, Ms Atan had left the room. After she did not come back, it was said that she was found at her desk working. Ms Hyde indicated that Ms Atan had returned but did not participate in the remainder of the training. 24
Mr Mulrooney
[29] Mr Mulrooney’s written evidence concerned the period of time when he was Ms Atan’s supervisor (from February 2008). He recalled that he had addressed performance issues with both his subordinates through regular meetings. Mr Mulrooney recalled that this structured approach had not been effective with Ms Atan as she felt that he was treating her like a school girl. He was advised to give her some space and that she would then deliver what he expected. It was Mr Mulrooney’s recollection that this had not occurred as Ms Atan had missed deadlines and was not prioritising her workload correctly. Mr Mulrooney also stated that, during one meeting when Mr McDowell (the then HR Director) was present, Ms Atan had accused him of being racist. 25
[30] It was said by Mr Mulrooney that, towards the end of Ms Atan’s six month probation period, he had requested that her employment be terminated. This had been supported by his next two more senior managers but was overruled by the HR Director. It was decided instead that her employment would continue with performance management meetings put in place for three months. Mr Mulrooney acknowledged that, over this period, Ms Atan’s performance had improved dramatically. During the final performance management period meeting, he recalled that he had requested that he and Ms Atan continue to meet informally face to face. He stated that Ms Atan did not agree but after clarification by Ms Findlow, she had. 26
[31] Finally, Mr Mulrooney stated that he had not bullied or harassed Ms Atan and that he had always treated her in a reasonable manner. 27
SUBMISSIONS
APPLICANT
Reason for the delay
[32] It was submitted by Ms Atan that she and her lawyer had concluded that 23 November 2010 was the date of her dismissal. This was said to be on the basis of the letter of 26 October 2010. The lawyer had then lodged the application on 7 December 2010 which was within the 14 day time limit. 28
Became aware of the dismissal after it had taken effect
[33] Ms Atan stated that she was given notice on 26 October 2010. However, she said that the letter of 26 October 2010 stated that the dismissal would take effect on 23 November 2010. 29
Any action taken to dispute the dismissal
[34] The applicant recounted that she had contacted numerous solicitors before finding one who would take her case. The solicitor provided legal advice and submitted an unfair dismissal claim. 30
Prejudice to the employer
[35] Ms Atan made extensive submissions regarding the meaning of the words “dismissal took effect” in the letter of 26 October 2010. She argued that, as the application had been lodged within 14 days of the real date of dismissal, the Tribunal should exercise its discretion and accept the application. 31
Merits of the application
[36] It was submitted by Ms Atan that her dismissal was not a case of genuine redundancy. She argued that the changes in the operational requirements of the company did not result in her job no longer being required to be performed by anyone.
[37] In the alternative, it was contended that it was reasonable, in all of the circumstances, for her to have been re-deployed within the company. Ms Atan stated that all her duties were subsumed by the new Training Co-ordinator position and that the position did not require training qualifications. She was not offered this position even though she was able to, and had the capacity to, perform the duties. 32
[38] Ms Atan contended that, to her knowledge, the re-structuring of the Human Resources Unit was limited to the Personnel office in Cooma and did not affect the Corporate Human Resources Unit. She stated that she was required to take the minutes of the fortnightly catch-up meeting and that an intention to re-structure Corporate Human Resources was never discussed. Further, with respect to the Cooma office restructure, it was Ms Atan’s contention that no one was retrenched as the employees were re-assigned to new or similar positions. 33
Fairness as between the person and other persons in a similar position
[39] The applicant submitted that there was no fairness present. Ms Atan outlined the nature of her responsibilities and the changes in projects and positions during her employment with the company. 34
[40] Ms Atan indicated that one of the main reasons she was pursuing her application was to be granted a fair remedy for the consistent abuse, harassment and bullying by Mr Mulrooney and then Mr Hooper. She said that the constant changing of her position, responsibilities and scope of duties meant that she was more than capable of filling the new Training Co-ordinator position. 35
[41] The applicant also stated that she was hoping for justice and for the respondent to understand the implications of terminating an employee’s employment particularly when the person was employed under a s.457 visa. This was particularly so as, in late 2010, she had advised Mr Hooper that she was delaying her permanent residency application for financial reasons. 36
RESPONDENT
[42] The respondent submitted that there were no exceptional circumstances which would justify the Tribunal allowing a further period for Ms Atan to lodge her application. 37
Reason for the delay
[43] It was contended that the applicant’s submission that her application was within time was incorrect. This was because the Tribunal had found, on 18 February 2011, that Ms Atan’s dismissal took effect on 26 October 2011. 38
[44] The company denied that it had advised the Department of Immigration that Ms Atan’s employment had ceased on 10 November 2010. Rather, the company was required to notify the Department within 10 days of the cessation of Ms Atan’s employment. 10 November 2010 was said to be the tenth working day after 26 October 2010. 39
[45] The respondent further argued that the company’s letter of 26 October 2010 was not unclear and stated that the applicant was paid all her entitlements within four working days of her dismissal. 40
Became aware of the dismissal after it had taken effect
[46] The respondent contended that Ms Atan became aware of her dismissal earlier on the day that it took effect. 41
Any action taken to dispute the dismissal
[47] The company argued that the applicant’s search for, and appointment of, solicitors and the lodging of her application were not actions taken to dispute her dismissal. It added that this did not constitute exceptional circumstances. 42
Prejudice to the employer
[48] It was submitted by the respondent that it would be prejudiced if the application was granted as it would then have to spend time and resources defending a claim that was wholly without merit. 43
Merits of the application
[49] The respondent contended that the applicant’s dismissal was a genuine redundancy. This was because, as the result of a restructure of its HR division, the roles of the applicant and three other employees were no longer required. There was said to be no suitable alternative role for the applicant in the company, including the Training and Development Co-ordinator position, as Ms Atan did not have the necessary skills and experience. 44
[50] Further, the respondent denied the allegations made by Ms Atan concerning Mr Hooper and Mr Mulrooney and other issues. It was also asserted that the applicant was untruthful regarding her claim that she was not provided with any assistance or support from Mr Hooper in a new position. No weight was therefore to be accorded to the applicant’s statements. 45
Fairness as between the person and other persons in a similar position
[51] The company submitted that, as there were no exceptional circumstances, it would be unfair to other persons in a similar position to the applicant who had not been granted an extension of time. 46
CONCLUSIONS
[52] Section 394(2) of the Act provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
[53] Section 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[54] To grant an extension of time requires a determination as to whether there are exceptional circumstances, having regard to the matters identified in section 394(3)(a) to (f).
[55] I will deal with each of these matters in turn.
Reason for the delay– section 394(3)(a)
[56] It was submitted by Ms Atan that she and her lawyer, on basis of the company’s letter of 26 October 2010, had concluded that her dismissal took effect from 23 November 2010. Her lawyer had lodged the application within 14 days of that date – therefore, within time.
[57] For the respondent’s part, it was contended that the letter of 26 October 2010 was clear regarding the effective date of her dismissal – 26 October 2010.
[58] The Full Bench in MN Robinson v Interstate Transport Pty Ltd 47 (Robinson) considered the issue of representative error with respect to an application for an extension of time under s.366(1)(b) and said that:
“The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case 48 in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case49 in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case50 found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act.51 We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.”52
[59] The Full Bench then set out the approach in Clark’s Case, as summarised in Davidson’s Case:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 53
[60] In applying the approach set out in Clark’s Case to this matter, on the evidence before me, it would appear that the applicant is blameless and that the delay was not the result of her conduct. The application was lodged out of time by 28 days. The applicant was advised by her solicitor that the date her dismissal took effect was 23 November 2010. The solicitor lodged the application within 14 days of that date thereby lodging it within time. There is nothing before me that would indicate that Ms Atan should not have accepted the advice of her solicitor regarding the date her dismissal took effect.
[61] Therefore, I find that representative error, for which Ms Atan cannot be blamed, is an acceptable explanation for the delay in lodging the application within time.
Became aware of the dismissal after it had taken effect – section 394(3)(b)
[62] On the material before me, it is common ground that Ms Atan was advised of her dismissal on the day it took effect – 26 October 2010. Ms Atan therefore did not become aware of her dismissal after it had taken effect.
Any action taken to dispute the dismissal– section 394(3)(c)
[63] It was submitted by Ms Atan that the actions she took to dispute her dismissal were to search for a solicitor and then appoint a solicitor who lodged an unfair dismissal claim remedy. It was also her evidence that she had refused to sign the termination letter given to her by Mr Hooper on 26 October 2010.
[64] For the respondent’s part, it was contended that these actions did not constitute the applicant disputing her dismissal.
[65] For the purposes of s.394(3)(c), I am required to consider whether or not there was action taken by Ms Atan to dispute her dismissal. On the material before me, it is apparent that Ms Atan actively sought out a solicitor who then lodged an application for an unfair dismissal remedy.
Prejudice to the employer (including prejudice caused by the delay) – section 394(3)(d)
[66] The respondent argued that they were prejudiced, if the extension of time was granted, because they would have to commit time and resources to defending a claim which they believed was completely without merit.
[67] Having considered the submissions on this issue, I am not satisfied that there is any prejudice to the respondent caused by the delay in this case. I am also not satisfied that there is any other prejudice to the respondent other than the usual prejudice that accompanies any granting of an extension of time.
Merits of the application – section 394(3)(e)
[68] The central issue here is whether or not Ms Atan’s dismissal was a genuine redundancy. The documentation from both parties reveals two different pictures of the one set of events. In addition, there was no sworn oral evidence and none of the witness statements have been sworn. It is noted that the basis of the applicant’s claim is strongly disputed by the company. However, given the disparity between the parties with respect to the facts, together with the lack of any sworn evidence, I am unable to make a finding on the merits of the case.
Fairness as between the applicant and other persons in a similar position – section 394(3)(f)
[69] The applicant submitted that there was no fairness in the circumstances.
[70] On the other hand, the respondent contended that it be unfair to other persons in a similar position whose application for an extension of time had not been granted. It was the company’s evidence that three other employees had been made redundant, in addition to the applicant as a result of the restructure.
[71] There is no material before me which would suggest that it would be unfair to those three (ex) employees if the Tribunal decided to grant the extension of time.
Are there exceptional circumstances?
[72] The basis on which it is decided if an extension of time should be granted is whether there are “exceptional circumstances” taking into account those matters considered above.
[73] The term ‘exceptional’ has been considered in a number of decisions of Fair Work Australia. The Full Bench in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers 54 found that:
[t]he word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act. 55
[74] As set out in paragraph 58 above, the approach of the Full Bench in Robinson to “exceptional circumstances” was that:
“We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.” 56
[75] I respectfully adopt this approach. The legislative considerations are virtually identical as between an application for an extension of time for a general protections claim, as in Robinson, and the extension of time application in this case. I have already found that there was representative error, for which the applicant was blameless (s.394(3)(a)). In terms of the matters set out in s.394(3)(a) to (f), it has been found that the applicant took steps to contest her dismissal by actively seeking a solicitor who lodged an application for an unfair dismissal remedy, there is a lack of prejudice to the employer by the delay and there is no unfairness to others in a similar position. Accordingly, taking into account the statutory considerations in ss.394(3)(b) to (f) together with a finding that there was representative error to which the applicant did not contribute, I find that there are exceptional circumstances which warrant the granting of an extension of time.
[76] Accordingly, the application for an extension of time is granted. An order to this effect will be issued separately.
[77] Ms Atan’s for an unfair dismissal remedy will be re-allocated for determination by a member of the Tribunal.
COMMISSIONER
1 Witness statement of Ms Atan, filed on 4 March 2011 at paragraph 3
2 Attachment 2 at page 2 of attachments to Ms Atan’s witness statement filed on 4 March 2011
3 Witness statement of Ms Atan, filed on 4 March 2011 at paragraph 4
4 Ibid at paragraph 5 and attachment 12 at pages 12 - 13 of attachments to Ms Attan’s witness statement filed on 4 March 2011
5 Attachment 3 to Ms Atan’s witness statement filed on filed on 4 March 2011
6 Attachment 5 to Ms Atan’s witness statement filed on filed on 4 March 2011
7 Attachment 6 at pages 4 - 5 of attachments to Ms Atan’s witness statement filed on 4 March 2011
8 Attachment 8 at page 6 of attachments to Ms Atan’s witness statement filed on 4 March 2011
9 Attachments 13 - 26 at pages 7- 25 of the attachments to Ms Atan’s witness statement filed on 4 March 2011
10 Attachment 26 at pages 22 - 25 of the attachments to Ms Atan’s witness statement filed on 4 March 2011
11 Attachment 16 and page 9 of the attachments to Ms Atan’s witness statement filed on 4 March 2011
12 Attachment 15 at page 9 of attachments to Ms Atan’s witness statement filed on 4 March 2011
13 Attachment 13 at pages 7 - 8 of Attachments to Ms Atan’s witness statement filed on 4 March 2011
14 Witness statement of Christopher Hooper, dated 17 March 2011, at paragraphs 3 and 5
15 Ibid at paragraphs 3 - 4
16 Ibid at paragraphs 6 - 9 and 19
17 Ibid at paragraphs 10 - 13 and 19
18 Ibid at paragraphs 13 - 16
19 Ibid at paragraphs 17 - 18
20 Ibid at paragraph 23
21 Ibid at paragraphs 24 - 25
22 Ibid at paragraph 28
23 Witness statement of Vesna Findlow, dated 17 March 2011
24 Witness statement of Kristie Hyde, dated 17 March 2011
25 Witness statement of Christopher Mulrooney, dated 17 March 2011, at page 1
26 Ibid at pages 1 - 2
27 Ibid at page 2
28 Submission by Ms Atan filed on 4 March 2011 at pages 1 - 2
29 Ibid at paragraph 2
30 Ibid at paragraph 3, page 2
31 Ibid at paragraph 4, pages 2 - 3
32 Ibid at page 7
33 Ibid at page 6
34 Ibid at pages 4 - 6
35 Ibid at page 6
36 Ibid at page 7
37 Submission on behalf of the respondent, dated 17 March 2011 at paragraph 2
38 Ibid at paragraph 3
39 Ibid at paragraph 4
40 Ibid at paragraph 5
41 Ibid at paragraph 6
42 Ibid at paragraph 7
43 Ibid at paragraph 8
44 Ibid at paragraphs 10 - 12
45 Ibid at paragraphs 13 - 14
46 Ibid at paragraph 15
47 [2011] FWAFB 2728, 17 May 2011
48 (1997) 74 IR 413
49 Print Q0784
50 [2011] FWAFB 466
51 [2011] FWAFB 466, at paragraph 35
52 [2011] FWAFB 2728 at paragraph 24
53 Ibid at paragraph 25
54 [2010] FWAFB 7251
55 Ibid at paragraph 5 and Dr Gary Berryman v Dr Kosky trading as Nagambie Medical Centre[2010] FWA 9691
56 [2011] FWAFB 2728 at paragraph 24
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