Ms Elizabeta Siljanovski v Deloitte Services Pty Limited T/A Deloitte Australia

[2014] FWC 2487

[2014] FWC 2487 [Note: An appeal pursuant to s.604 (C2014/4209) was lodged against this decision - refer to Full Bench decision dated 17 October 2014 [[2014] FWCFB 7113] for result of appeal.]

DECISION

FAIR WORK COMMISSION

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

Ms Elizabeta Siljanovski
v
Deloitte Services Pty Limited T/A Deloitte Australia
(U2013/2693)

COMMISSIONER STEEL ADELAIDE, 11 APRIL 2014

Termination of employment - Alleged unsatisfactory performance.

Overview

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect to an alleged unfair dismissal by Ms Elizabeta Siljanovski (the applicant). The respondent is Deloitte Services Pty Ltd t/as Deloitte Australia (the respondent or Deloitte’s).

[2] There are no relevant jurisdictional matters and the applicant, due to her visa restrictions, is ultimately seeking that her dismissal is found to be unfair and that as the primary remedy of reinstatement is impractical and inappropriate; that the Commission determines another remedy.

[3] The transcript in this matter, which ran over four days, including a hearing in Darwin and subsequent video links with parties in Darwin, Melbourne and the Commission in Adelaide, is unfortunately beset with gaps and indistinct recordings. Further issues occurred at times within the hearings with the availability of documentation. However the Commission is confident the application was given sufficient consideration based on an accurate perception of the evidence available.

[4] The applicant was recruited by the respondent from Europe for a position in Darwin commencing 24 September 2012 as a Senior Analyst. The applicant was dismissed on 8 August 2013 “on account of unsatisfactory performance and a breakdown of the employment relationship of mutual trust and confidence.” 1

[5] The dismissal confirmation letter alleges in particular: the applicant demonstrated continual under-performance when assessed against expectations of the role as discussed within feedback sessions and formal performance management discussions (on four occasions). Further, the applicant breached the employers personal leave policy and information technology policy. The applicant had received formal warnings, support and resources. 2

[6] The applicant was provided with four weeks pay in lieu of notice and outstanding entitlements on termination of employment. The Commission further understands that the respondent currently accepts some obligations in respect to the repatriation of the applicant to her country of origin as her recruitment originated from Bosnia.

Background

[7] The Commission initially attempted to resolve this matter in a conference determination format. However that quickly proved to be unrealistic given the information and degree of detail within the applicant’s evidence and approach, the numbers of witnesses for the respondent and the contrasting perceptions of the parties that quickly emerged. The Commission therefore provided the parties a comprehensive opportunity to provide and examine the evidence in this matter.

[8] The applicant provided evidence on her own behalf. She was self-represented. The respondent was legally represented by permission of the Commission 3 and provided witness evidence from Ms Sanja Hill, Ms Chenoa Patterson, Ms Fernanda Camara, all Account Directors of the respondent. Further respondent evidence was provided from Ms Julie Crisp and Mr Francis Thomas, both Partners of the respondent company.

[9] The Commission found the applicant had some limitations with expression and recall of events and with the focus of her views. English apparently is not her first language. In the proceedings she often tended to be verbose as to explanations and questions. However she demonstrated a capacity to articulate her views and expertise. The respondent’s witnesses also had some recall issues, notably witnesses Patterson and Thomas in their evidence.

[10] The Commission found all witnesses provided generally reliable testimony and attempted to provide assistance to the Commission save for some limitations as noted previously.

The relevant submissions of the parties

[11] The applicant contends that she was dismissed:

● In retaliation of her defending herself from bullying and harassment as a consequence of her complaining to Ms Crisp about the behaviour of Ms Patterson towards her;
● Also as a consequence of her complaints to Ms Hill about the behaviour of Ms Patterson towards her during a particular client engagement;
● In regard to the way she was treated by Ms Crisp and Ms Patterson in a meeting as a consequence of her providing feedback to directors and Ms Crisp related to their assessment of her performance and bringing up actions they took, or were responsible to take but didn’t, that affected the outcome of the client engagement;
● For submitting an internal bullying and harassment complaint and for submitting a Workers Compensation claim for stress.

[12] The applicant further alleges the decision to dismiss was made well before it was applied and that her breaches of policy were not deliberate or significant issues, if breaches at all. Also that she was not provided with assistance or feedback during the period between the first and third warning and that the respondent’s actions were no more than focusing on collecting information on all possible mistakes including lies and partial truths about mistakes.

[13] The respondent submits that all that is in contention in this matter is whether the dismissal is harsh, unjust and unreasonable as reflected in the provisions of s.387 of the Act and submits that the applicant in regard those requirements had received feedback advice on her performance and that she was not meeting the standards required of an analyst and improvement was necessary. The applicant was further warned as to her performance and conduct not being to an acceptable standard and again improvement was necessary (April 11 2013). Further to working with a third director she received similar feedback leading to a second and final warning about her performance (1 August 2013). Further to the second and final warning the respondent asserts the applicant had shown she was not willing or was not capable of meeting the respondent’s expectations. The respondent, on becoming aware of the applicants breach of their information security policy, decided to dismiss the applicant (letter dated 8 August 2013). 4

[14] The respondent submits at all stages of the process the applicant had the opportunity to respond and in fact did so, hence the reasons identified by the respondent were known to her. The applicant had the option at all stages of the above process to have a support person present but chose not to do so. The respondent alleges no breach of s.387 and hence no unfair dismissal has occurred.

The relevant evidence and findings

[15] Much of the information provided by the parties is polarised and diverse. Accordingly the Commission has had regard to all the information provided by the parties in identifying the following material. The Commission has made findings based on such evidence and the probability of the events in question and a judgement of the evidence where perceptions of individuals are in conflict.

[16] The applicant was employed as a Senior Analyst by the respondent in Darwin from 24 September 2012 on a four year contract. She was recruited from her homeland in Bosnia and received financial assistance in making the move to Darwin. She is a university graduate and qualified auditor and holds professional recognition in that profession in Australia.

[17] The applicant formerly worked in Bosnia with Ms Hill who when resident in Australia assisted her with information on a position with the respondent and acted as a referee in regard to that appointment.

[18] The applicant asserts she was not inducted appropriately in regard to the respondent’s systems, customer requirements systems etc and received no instructions generally. 5 The respondent asserts she received an induction, training and instructions on an ongoing basis.

[19] The applicant clearly understood the structure and organisation, that when given a client engagement letter and a budget to indicate she understood what was required to do as well as the expectations in terms of the steps involved. 6 The applicant understood the recording of her time system, of reviewing client documentation and of providing necessary completed work papers. However the applicant differs on the purpose of the required work papers in that she considers them as an assist for directors to keep her, as the analyst, and the project on track.7 Engagement Performance Reviews (EPR’s) were utilised by the respondent to give a performance assessment and some critical feedback to staff in relation to their work. Various EPR’s relating to the applicant were referenced.8 The Commission considers it is clear the applicant understood the nature of the content and use of EPR’s.

[20] The applicant asserts she was bullied by Ms Crisp and Ms Patterson and made complaints about their behaviour to Ms Hill. Further that her dismissal is in retaliation to making those complaints and hence Ms Hill is also involved. The applicant asserts her dismissal is further in retaliation to her complaints of various partners and staff performance or lack of performance and making a Workers Compensation claim. The applicant identified her dismissal was a reaction by Deloitte’s staff against her criticism and suggestions of their less than professional approach and the way they do business. 9

[21] In regard to bullying the applicant refers to bullying as:

“...the way that I am being - that I was being talked to, shooshing me, waving fingers at me...” 10

[22] The applicant asserts this “is definitely bullying” 11 and that she was disciplined because she complained about the bullying.

[23] The applicant asserted that if her performance was below expectations at the first warning scenario the respondent made little subsequent attempt to assist her to improve. For illustration if she needed to improve on some specific skills the courses she was referred to did not enhance that skill as they had little relevance and that the respondent was disingenuous in this respect. 12

[24] The applicant’s first EPR outcome identified she had poor communication and behaviour issues, specifically yelling at a colleague. The applicant denies yelling at anyone in regard to the accusations of such behaviour. The applicant denies the referred to episode and says she raised her voice because she was walking away from Ms Patterson and wanted to advise she did not want to work with the suggested clients.

[25] Subsequently she had a meeting with Ms Patterson and Ms Crisp where she denied she was a liar in answer to an accusation of yelling resulting in Ms Crisp waving her hand at her.

[26] The second EPR identified overruns on work allocated. The applicant asserts the budgets applied to her were unrealistic. The applicant says it was a matter of luck to complete the work within time. 13

[27] The applicant asserts the respondent’s budgets were not efficient as to task evaluation therefore they could not rely on EPR’s as they are unrealistic. Further feedback to the applicant was to the effect she was spending too much time on some tasks. The applicant asserts she recorded all her times yet they were never referred to. The applicant generally asserted the overruns were not her fault and the budgets were artificial. 14

[28] The applicant also asserts she was correcting work of others and was given contradictory instructions, i.e. Ms Crisp and Ms Camara gave conflicting instructions and no clarification when requested.

[29] The applicant indicated that with her experience of internal procedures, administrative tasks and engagement management she considers that Deloitte’s should not be put as the benchmark for any client interaction. By doing so you may be underperforming with your advice to clients. The applicant had advised this to Ms Patterson by email and was taken off the job and told later such emails were not acceptable and that Ms Patterson recognised this as criticism of the respondent. 15Further from the applicant’s experience with Deloitte’s internal administrative procedures and management they are in her view not the top line standards.

[30] When endeavouring to respond to the warning scenarios the applicant complains that while Ms Crisp was nominated to assist her if required, when she did so she received criticism from the engagement Director, Ms Hill, as to the consequential expense to the budget. The applicant points out that she was not in control of the budget but only to charge against the budget.

[31] Conflicting instructions were given to not to be independent on an engagement by Ms Patterson and then to be independent by others. This, in the applicant’s view, resulted in her being blamed when her activities affected the budget in terms of overruns. 16

[32] When giving feedback to a Director (Ms Patterson) she was told her statements were hurtful whereas the nature of this situation was making the applicant emotionally sick. 17

[33] The applicant surmised that she was simply to do as she was told as she had no authority. The applicant says she had to read much material to remain current and this was not taken into consideration. Review of reports is consuming and causes delays with no actual procedures, quality control and no time allowed. When she indicated these issues she was told she was not a multiple task person.

[34] The applicant submitted that she got into trouble for being honest. In the time worked for clients as against the time scheduled to be worked as she did not charge to the budget time involved in administration and non-related tasks. She could only work 7.5 hours a day and not allowed to work overtime. With this limitation it was not possible to work as scheduled. Her billing schedule was lower and she was told she had a problem with multi-tasking. 18

[35] The applicant asserts that Deloitte’s is seriously malfunctioning in both administrative task procedures as well in engagement cycle processes and procedures. Standards do not exist. The applicant submitted she did not trust management, that they were dishonest and put their personal goals ahead of everything, including the promised support for the applicant’s education and personal goals. Further that the respondent had made statements about her that were not true. The applicant refers to this as discrimination by management.

[36] The applicant expressed her great disappointment in the level of professionalism, ethics and work conditions within Deloitte’s. She submits that she had to deal with substandard systems, blame-games, pettiness and inappropriate behaviour with no respect for lower level employees.

[37] The applicant considered she was inappropriately classified and should have been a higher grade analyst and that she was underpaid in her estimation. The applicant criticised directors for their criticism that she required substantial guidance. She states she did not require such guidance and this resulted in her spending time explaining to directors what is incorrect and she was actually guiding them, e.g. in regard to erroneous findings or results. 19

[38] The applicant admits that when Ms Patterson gave her directions she noted them but did not implement them. Subsequently she was taken off the engagement. 20

[39] As a senior analyst the applicant asserts her comments about client work were not taken seriously even where the work was obviously doubtful and she was correct.

[40] The applicant asserts that Deloitte’s standards were not given to her until after the warning meetings whereas they should have been available and relied upon much earlier. The delegation of administrative tasks by directors and partners to subordinates in a performance based environment was random and confusing with staff working on engagements they were not assigned to with no regard to workload.

[41] The applicant considered that her working environment was an unhealthy workplace, with a:

“Total breakdown of moral and professional standards, everything breaks down to chargeable hours and throwing blame when budgets are not met. EPR not used for guidance and improvement in performance but rather as a tool to throw blame for engagements that went wrong.” 21

[42] The applicant strenuously asserted that the interruptions by directors and the delegation of tasks was an illustration of the director not managing their own tasks more effectively. To seek assistance on work that was not even scheduled affects performance. The applicant asserts that all these requirements were not taken into account in the EPR’s. 22

[43] In regard to the issue of “work papers.” The applicant asserts the respondent consistently and constantly demanded incomplete work papers so as to adjust their chargeable hours resulting in incomplete work for review. The loading of such papers with comments by directors to be resolved resulted in further work to be completed.

[44] The applicant asserts she requested a transfer from Mr Thomas a month before dismissal because of a breakdown in trust but received no feedback from him. 23

Counselling

[45] In December 2012 the incident of yelling at Ms Patterson was discussed by the applicant, Ms Crisp and Ms Hill.

[46] The applicant was described as loud aggressive and rude to Ms Patterson at her desk in an open office. She was given informal counselling but no warning. The applicant denies she yelled but is aware others complained about her. 24

The first warning - 11 April 2013

[47] A formal discussion on performance referenced three EPRs on three engagements that generally rated the applicant as, “performance below expectations”.

[48] The Interim Engagement Review in relation to the Department of Treasury and Finance (DTF) engagement mentions poor communication issues with team members. 25 The applicant states these reviews were carried out with significant limitation of procedures. However the DTF Review states:

“However communications with other team members has been poor. Elizabeta can be very blunt and comes across as quite rude and demanding. The manner in which she responds to me in some of her emails is inappropriate.

Elizabeta talks over the top of others and interrupts others while talking quite a lot which is extremely frustrating.

The Job is now looking at going over budget by as much as 30-50%” 26

[49] In relation to the Aboriginal Areas Protection Authority (AAPA) EPR 27 the applicant states that after her email to Ms Patterson where she rejected and refused to make changes required by Ms Patterson to her draft report, she was basically taken off that job but still completed work on it from time to time by request.28 Later the applicant agrees she was still working on the engagement.29 Later the applicant agrees she refused to work as directed. The report was subsequently reworked by the director.30 In terms of “Management Effectiveness” the applicant was criticised for not monitoring the budget regularly as the engagement was likely to be $20,000 over budget. Further, the applicant was identified as taking too long to clear review notes, had shown a lack of respect to her superiors and a refusal to follow instructions. The applicant denies these criticisms of her performance.

[50] With regard to the Territory Insurance Office EPR, 31 again the applicant is criticised for not completing work papers. The applicant disagrees with the criticism.

[51] The applicant’s first warning, provided on 11 April 2013, 32 highlights that “there is no evidence that costs are being monitored”, “recoveries are poor”, “file is a mess”, “instructions not followed”, “time taken is well beyond expectation and that jobs have been assumed by the director due to concern as to overruns and delivery”. The applicant accepted in evidence that the respondent was making a loss on the above engagement.33

[52] A performance plan was set out for the applicant that included how progress was to be measured, with further discussions arranged for three weeks. These discussions did not occur because the applicant was ill.

[53] The applicant appealed against the warning to partner Mr David Murray and further lodged a bullying complaint against Ms Patterson.

[54] On 12 June 2013 the applicant met with Mr Murray, Ms Karen Green and Ms Di Woolley regarding her complaints and the result of an investigation. The applicant agrees that she was advised that the EPRs identify consistent lack of performance themes throughout and they have found no reason to change the EPR ratings. That the issues outlined in the formal warning are consistent and the formal warning will not be revoked or overturned. The outcomes of the formal warning outlined also will remain in place and will be called the Performance Improvement Plan (PIP). There will be no further action in relation to bullying and harassment claims by the respondent.

[55] The evidence indicates the applicant in the meeting understood all the explanations given to her but at the end she stated that she “didn’t believe that the investigation was done properly. All the behaviour was bullying and harassment, on engagements she was just taking orders and the orders were not in line with engagement letters. She did not agree she had performed below expectations”. The applicant indicated to the respondent that “as an employer the respondent has the right to say anything and as an employee she has the right not to agree with it”. 34

[56] The results of the investigation were provided in a memo dated 17 June 2013. 35 The PIP, with action points required on responsibility, following instructions, proper documentation of work, report writing, communications and attendance was also provided.36 The applicant was advised how her progress would be measured by demonstrated understanding of instructions, significant reduction in review notes, a reduced level of input of directors, improved communication with staff and regular updates on job progress.

[57] Sometime later the applicant was working at her request with Ms Camara on the “Menzies engagement.” This engagement was the subject of various performance review meetings on 24, 28 and 29 July 2013. The EPR documents noted “below expectations” generally in regard to the applicant’s performance required outcomes. 37 The documents of the meetings indicate a concern with the budget already overrun. The applicant accepts that she charged by 14 June, 109 hours of work against a budget of 90 hours and as a result of the discussions the applicant was taken off the engagement and worked for Ms Hill.38

The final warning - 1 August 2013

[58] The applicant was provided with a letter on 1 August 2013, being a final written warning from Ms Crisp, three days after the performance meeting on the Menzies engagement. This warning notes the applicant’s continued poor performance which fell short of Deloitte’s expectations and referring the applicant to the PIP. The letter stated that the respondent had observed that the applicant did not meet all the requirements of the PIP in regard to the Menzies work. It noted the work was below expectations. 39

[59] The letter also referred to the applicant, at various times, not complying with the respondent’s Personal and Sick Leave Policy and concluded that the respondent identified no signs of improvement by the applicant regardless of feedback to her. The letter states that a review shall be held in one week on 8 August 2013 and should the applicant not have displayed a substantial and sustained improvement in meeting those expectations and requirements as set out in the PIP, the respondent will be considering termination of the applicant’s employment.

[60] On 8 August 2013 the applicant had a series of meetings, initially with Ms Crisp and Ms Hicks to discuss her performance. Since 1 August the respondent asserts that it was identified there had been little if any improvement in the applicant’s work performance. The applicant says she was unprepared, that she had no agenda to prepare for, that she was required to give immediate responses and that she said she needed more time. However, the respondent proceeded to seek her reply to the issues in respect to the criteria for improvement provided to her in her PIP.

[61] The Information Security Policy issue was also raised with her in terms of a claimed breach of such policy. In response the applicant agreed that she found some papers on someone else’s desk, scanned them and emailed them to her home email. 40

[62] The applicant submits that she had tried to improve on anything that was available to her within that period and indicated she did challenge one instruction. 41 The respondent identified no improvement in following instructions and review note resolutions.

[63] The meeting was adjourned for consideration and was followed by a meeting with Mr Thomas who confirmed the respondent was considering termination of the applicant’s employment. The applicant was given a further opportunity to respond to that intention and she was given some time to consider. Mr Thomas returned and after discussion and terminated the applicant’s employment by handing her a termination letter. 42

[64] In terms of breach of the information policy and trust, the applicant says this was neither deliberate nor significant. It was just a brochure readily available, an unsecured brochure that the applicant thought would be helpful so she scanned it and emailed it to herself. This issue was advised to her only in her termination interview on 8 August 2013.

[65] In regard to leave policy breaches the applicant denies any intent and asserts she did advise people of her absences on sick leave

[66] The applicant says she was dismissed after a short period between the first and second warnings. The applicant was stressed emotionally during this time and the respondent expected regardless of illness the e-time information will be sent by staff.

[67] When the applicant was called to her final meeting she says she was unaware of its intent and was surprised to be dismissed. She was unaware of the sick leave issue or the information issue.

Witness Evidence

Ms Hill

[68] Ms Hill is a director of the respondent, was a referee for the applicant as she formerly worked with the applicant in Bosnia. She commenced to be a friend of the applicant and asserted the applicant was given a formal and structured induction. Ms Hill could not recall all matters put to her by the applicant in examination.

[69] Ms Hill says the budgets for the engagements the applicant worked on with her were reasonable and partner approved. She explained the importance of the work papers being the paper trail of the work involved. Ms Hill confirms the applicant recurrently; would not follow instructions, disagreed with review notes and challenged the budgets and terms of reference. She did not encounter these issues with other senior analysts. Ms Hill encountered overruns because of the numerous meetings involved with the applicant and the need to intervene to get work completed. Ms Hill denies the budget for reading and understanding procedures was other than adequate for an analyst to examine as to whether procedures were being followed.

[70] Ms Hill, Ms Crisp and Ms Woolley met with the applicant to discuss the applicant’s career plan on or about 18 June 2013 following the applicant’s first warning. The report from that meeting states concerns with the applicant’s performance against budgets, issues with core technical and late deliveries, review notes and not following instructions. The overall rating was below expectations. Ms Hill says she did not see an improvement in the applicant’s performance despite the intervention and feedback from management. Ms Hill highlighted the lack of regard for seniority, poor technical skills and the need for better documentation.

[71] The applicant referenced her downtime and issues with the chargeable routine in respect to engagements that had overrun. Ms Hill considered she “could not get with the flow”. The applicant also objected to Ms Hill going to client interviews with her.

[72] Ms Hill says the applicant was referred to several courses in her tenure as being recommended, however the applicant queried those in terms of relevance. There were several discussions on this. Ms Hill maintains the applicant got feedback along the way and received detailed reviews. Ms Hill assumed the applicant would learn from the opportunities given. 43 The applicant also had access at all times to the previous work of other analysts in terms of examples etc.

[73] The applicant maintains she got no feedback along the way until April and then it came in a rush and then was given warnings and a week to improve.

Ms Patterson

[74] Ms Patterson had some issues with recall at times given some of the detail of events. She was involved with the applicant on work on two engagements. (AAPA and DTF) and two EPR’s were completed. Of issue Ms Patterson perceived some difficulty with the applicant following instructions and a tendency to repeatedly query or challenge advice received. This resulted in some non-recovery of overruns as a consequence of report writing and working papers review. 44

[75] Ms Patterson had to take over and complete the AAPA report because the applicant could not complete it. On the DTF report the applicant delivered all the planning material but little findings. Ms Patterson also had to complete that report. Further a lack of paperwork was apparent for evaluation. This was discussed with the applicant who was not receptive to the criticism and became heated. 45

[76] Ms Patterson did not make a complaint about the applicant on this occasion but did so later when she had a similar discussion at a client’s premises.

[77] Ms Patterson asserted several meetings resulted where the applicant was specifically instructed as to requirements upon her. The applicant promised a deadline she could not keep and further discussions occurred but no work was completed. The director then decided to take the file off the applicant. Ms Patterson assessed the work had not been done. There was no analysis and no complete work papers, just minutes of meetings with the client.

[78] Ms Patterson, under substantial and repeated cross-examination from the applicant, indicated that after she took over the AG engagement, that already had a significant overrun, that she actually had to do all the work including all the work papers and write the reports, all of it except the planning. She concluded that the applicant’s time on the job was not productive. 46

[79] The applicant asserted that she was at times working long hours on different jobs and it was clear the directors did not know this. Ms Patterson denies this as she was told by the applicant that her other work was to finish such that she would be available. 47 The applicant denies this meeting occurred and instead asserts she was given an email that said Ms Patterson did not care about any other job but the AG job.

[80] Ms Patterson asserted the role of an analyst is to adapt to priorities and included the capacity to take multiple instructions, to accommodate priorities and reprioritise all the time. 48 The AG job was a normal incidence of allocation of work.

[81] The applicant implied that the AG job was imposed on top of a number of tasks she was to complete and that she was told by Ms Patterson she was only interested in the AG job. Ms Patterson says she knew the applicant had the Department of Housing engagement to finish that was already discussed with her to finish on the Monday. Ms Patterson confirms she met with the applicant to review the work required and to reprioritise for completion. 49 The applicant denies having that meeting and receiving the asserted advice.

[82] The so called “yelling incident” occurred when Ms Patterson was reviewing the applicant’s work but could not follow where she was going and the outcomes intended. Ms Patterson advised of the required approach to documentation of papers etc. The applicant replied that would be too much work and that Ms Patterson needed to compromise. 50 The applicant’s version is that Ms Patterson was upset. Ms Patterson denies she was upset.

[83] The applicant asserts that Ms Patterson kept on repeating:

“It has to; it has to; it has to, everything has to be clear, it has to.” 51

[84] Ms Patterson asserts she told the applicant what was required as the applicant did not understand the work papers without being guided through them which was unacceptable.

[85] The applicant asserts she started to walk away from Ms Patterson:

“...because I wanted to stop this conversation. I was not comfortable with the way you were talking to me so I started walking away from your desk, but you continued talking to me and making comments...” 52

[86] Ms Patterson denies this and says the applicant initiated an end to the conversation to which she, Ms Patterson, agreed. 53

[87] Ms Patterson asserts discussions continued about the budget and she was still not clear what the applicant had done. Ms Patterson asserts the applicant was not happy and walked off stating she did not want to be assigned to AG engagements. 54

[88] The applicant denies there was two discussions, and when she left she commented from four metres away. Ms Patterson denies this occurred and asserts the applicant raised her voice and was starting to yell.

[89] The applicant asserts that budgets for engagements are shaped to the expectation of the client. Ms Patterson denies this approach and asserts budgets are worked out on the requirements of the time involved and hence the hours should be realistic for the staff involved. Further, some out of scope work is negotiated with the client.

[90] The applicant asserts that Ms Patterson was affecting her performance as she was not keeping up with her emails and e-time records and that all issues were reviewed and resolved with Ms Crisp. 55 The applicant decided to record all communications with Ms Patterson by email to avoid confusion and allegations of yelling.

[91] The applicant asserts Ms Patterson was responsible for the overruns because of repeated changed instructions and adding requirements. She endeavoured to explain this situation in reviews but to no avail. The applicant decided she should respond in writing to criticism in her EPR’s. In doing so and to keep working with clients she would have to work excessive hours.

[92] She responded to the EPR’s and subsequently was taken off the job and given a warning letter. 56

[93] The applicant says she was given a warning without any requirements to discuss or respond to her comments. 57 She asserts she was being treated badly by Ms Patterson and she complained to Ms Hill about changed instructions and a refusal to listen to explanations. After a meeting with Ms Crisp and Ms Patterson that went badly for the applicant Ms Hill told her not to call her after hours when the applicant explained she was deeply distressed.58

[94] The applicant soon after was required to urgently finish the EPR’s. She did so and was then given a first formal warning with two weeks to correct the work performance or be dismissed.

Ms Camara

[95] Ms Camara supervised the applicant on the “Menzies engagement.” A mid-point review was carried out as the project was overcharged against budget hours.

[96] Ms Camara reports multiple meetings on the engagement by the applicant involving numerous hours. Ms Camara as director wanted to be present in all client meetings, however the applicant did not advise of those meetings.

[97] Consequent to the mid-point review meeting and the outcome where the applicant was not accepting of any of the feedback the applicant was removed from the engagement. 59

[98] Ms Camara took the engagement work over and says the file was in poor shape, was difficult to understand, little evidence of the work completed and indicating a significant budget overrun. The applicant was subsequently instructed to do a flow chart on the client documents she had received. However the applicant refused to do so.

[99] Ms Camara says she indentified a difficulty by the applicant in following instructions and she required numerous instructions. She also frequently challenged directions, resulting in budget overruns and inability to bring tasks to completion and not providing adequate documentation except minutes of client meetings. Ms Camara found the working relationship with the applicant to be untenable. 60

[100] Ms Camara could not identify the process flow of work and findings in the Menzies file. All that was available was minutes despite instructions to the applicant.

[101] Ms Camara recorded that at the Interim Performance Reviews (IPR’s) of 5 June and 17 June 2013 the budget of 100 hours was used by applicant by 14 June. Ms Camara says she used the IPR’s to assess the applicant’s performance thus far and expressed her deep concerns about the completion of the engagement. Ms Crisp instructed a stop work on the engagement. The applicant apparently did some further work on the Friday and then on the Monday refused to do the flow chart as instructed.

[102] The applicant says she has conflicting instructions i.e. to stop by Ms Crisp and to do the flow chart by Ms Camara.

[103] The applicant says she had to file the client’s voluminous documentation. Ms Camara asserts she advised her to concentrate on relevant documents in terms of process flow. Ms Camara says she would have expected a senior analyst to make such judgement calls as to what is relevant.

[104] Ms Crisp was “aghast” at the way the file was put together and the approach by the applicant was surprising in that she asserts 90% of documentation was irrelevant to the brief. 61

[105] Ms Camara sent the documents to Ms Crisp and then a meeting was arranged with the applicant to decide if the applicant should complete the project. The meeting was adjourned to a second meeting. Prior to that arranged meeting, the applicant provided her written feedback.

[106] The second meeting ended with Ms Crisp to assess the applicant’s response and determine further involvement.

Ms Crisp

[107] Ms Crisp was the allocated counselling partner for the applicant in order to provide direction, mentoring and feedback in regard to performance.

[108] Ms Crisp handled the complaints from staff (2) in regard to the applicant raising her voice incident involving Ms Patterson. The applicant denied the allegations. Ms Crisp was of the view after discussions with the applicant and Ms Patterson that both parties were upset but the applicant was likely to have acted inappropriately and yelled at Ms Patterson. Ms Crisp was aware the applicant was on probation but decided the incident did not warrant termination of the probation. 62 Accordingly the applicant was counselled in such behaviour without disciplinary action.

[109] Ms Crisp was involved in a meeting with the applicant regarding a complaint from Ms Patterson about the conduct of the applicant on28 March 2013. The meeting was directed to clarification of the engagement’s performance and its status of work. Ms Crisp had had some feedback from directors and an interstate expert as to the applicant’s performance. That is, work papers were identified as not relevantly completed, report writing needed improvement and apparent resistance from the applicant on engagements. Ms Crisp as a result of the discussions was concerned at the state of the engagement in regard to the documentation available and the applicant’s work plan. She further could not identify how much work was left to do. 63

[110] Ms Crisp was concerned about the applicant’s behaviour towards Ms Patterson. The discussion was accusatory by the applicant.

[111] Due to concerns as to the applicant’s work and that she did not seemingly understand the need for urgent attention to the engagement completion Ms Crisp arranged another meeting on 3 April 2013 to discuss the engagement and prioritise its completion. The applicant did not present herself on this occasion.

[112] The applicant’s responses to concerns about her work were discussed in a meeting with Ms Hill and Ms Patterson on or about 8 April 2013. She was provided with the EPR for this meeting and advised the meeting was about her performance. This meeting was followed up by a further meeting on 11 April that included EPR feedback to the applicant. Ms Crisp was concerned at the diversity of ratings between the applicant’s perception of her performance which was largely “advanced” and her directors that largely were “below expectations.” Ms Crisp’s view was that overall the applicant’s performance was not at a level expected of a senior analyst. 64

[113] The applicant’s evidence is that she was not provided with any details of the agenda for the meeting or that the meeting was to be a disciplinary process resulting in a warning.

[114] Consequent to this meeting the applicant was provided a first written warning dated 11 April 2013. 65 This warning nominated the CDU Privacy engagement as the basis for identifying prospective improvement by the applicant by certain dates in April. The applicant was sent field work reference instructions on 12 April to assist her improvement.

[115] Due to the applicant’s sick leave, further meetings did not occur and in May 2013 the applicant was tasked to work with Ms Camara on the “Menzies engagement” (a client of Ms Hill’s). Ms Crisp was involved as the applicant had expressed the view that Ms Hill and Ms Patterson were biased in relation to her performance and had provided insufficient guidance on engagements. Ms Crisp consequently thought it appropriate to involve a fresh director that the applicant had not worked with previously, being Ms Camara.

[116] Ms Crisp observed subsequently the applicant had asked her to provide instructions and directions by email. The applicant wanted everything documented. Ms Crisp examined the file and was concerned that its contents reflected little linkage between planning and field work. The direction was not evidenced and the status as to a completion date was not evident.

[117] Ms Crisp held meetings on 24 and 28 June 2013 to examine the applicant’s performance as it was obvious to her that she and the applicant were frustrated with each other. An EPR was utilised by the respondent for discussion. Ms Crisp provided documented reasons for her concern that the applicant’s performance was below expectations and the applicant provided her feedback response. The meeting adjourned with the intention of being resumed, however the applicant subsequently went on sick leave. Ms Crisp refers to this as a “mid-point discussion utilising an EPR template”. The budget had been exceeded significantly at this time.

[118] The meeting resumed on 28 June.Ms Crisp states that she could not identify any improvement in the applicant’s performance from the time of the first formal warning on 11 April. Ms Crisp further stated that the applicant had demonstrated “almost complete rejection of what was written in the EPR,” and could not see any attempt was being made to acknowledge the feedback that was being given. 66 Ms Crisp decided to stop work by the applicant on the engagement and reassess the work.

[119] The applicant had raised issues of conflicting instructions from principals and that Ms Crisp was of a view the applicant’s approach was “in reverse” whilst she had been encouraged that there are various ways of completing the work.

[120] Further the applicant raises the issue of delays in finishing of some work. She was given further review notes late. Various plans were in place as to this delay but the parties differ as to the acceptance of the reasons for delay. The applicant blames the specialist involvement and his review notes which she could not close and some of which were wrong. Ms Crisp does not agree with these assertions.

[121] A further meeting was arranged for 23 July 2013 with the applicant but was deferred at the applicant’s request due to issues with her chosen legal representation and her sick leave. The meeting was held on 29 July. Ms Crisp says it discussed performance issues and that she could identify no distinguishable improvement in the four months they had been having the discussions with the applicant. They discussed the factors advised in the former PIP and they raised an issue about a breach of the leave policy. The applicant responded that most of it appeared to be lies and rejected the comments about her performance. The meeting was adjourned so the applicant could make a formal response and rescheduled for 31 July.

[122] The applicant was on sick leave on 30 and 31 July. A meeting occurred on 1August with the applicant and Ms Crisp in relation to the applicant’s ongoing performance issues. The applicant provided a written response that was considered. The respondent consequently issued a final written warning to the applicant, her second warning for poor performance. 67 This warning outlines the areas of performance considered below expectations as well as the issue of a breach of the respondent’s leave policy. The applicant was required to address the expectations of the respondent, to follow lawful directions and to act in accordance with policies and procedures. A nominated review was to occur after a further week (8 August) and if the applicant had not demonstrated a substantial and sustained improvement the respondent would be considering termination of employment.

[123] Ms Crisp explained in evidence that the week was nominated as the engagement work the applicant was to work on was made specific to her. It was to write up minutes of an interview with the clients three teams and the other was to address the review notes raised by the director in the work papers. Both tasks were estimated by Ms Crisp to involve a total of 10 hours work. 68

[124] Further to the events of 1 August Ms Crisp became aware the applicant had not made any material improvement and further was made aware of a breach of the information security policy. A meeting about the required work papers identified the task had not been addressed. Ms Crisp concluded nothing was being done by the applicant in an attempt to improve. The applicant in the meeting advised she had raised objections previously as to what had been put to her. 69

[125] Ms Crisp met with applicant on 8 August. The meeting discussed the required performance issues and the breach of information policy. The meeting was adjourned and the applicant was advised her performance was considered as insufficiently improved and dismissal was being considered.

[126] Mr Thomas, a partner, was consulted and briefed regarding the applicant’s performance and the policy issues. A meeting was held with the applicant and Mr Thomas, also attended by Ms Crisp. The applicant was advised of the employer’s position and was given an opportunity to respond. The applicant basically had nothing further to add. 70

[127] Mr Thomas was satisfied he had been given all the relevant information and the meeting was adjourned and reconvened after he had considered the options available to him. The decision to dismiss the applicant was made, the meeting reconvened and the applicant was dismissed.

Mr Thomas

[128] Mr Thomas was briefed on the applicant’s status as of 1 August in that her performance had not shown improvement and she had not addressed the issues advised in the formal warnings given to her. Further he was advised of the breach of information security policy.

[129] Mr Thomas met with the applicant, Ms Hicks and Ms Crisp on 8 August and advised her that as a consequence of the issues the respondent was considering termination of her employment. Mr Thomas gave the applicant a further opportunity to respond and the meeting adjourned.

[130] When later reconvened, Mr Thomas provided a letter of termination effecting the applicant’s dismissal for ongoing performance issues and breaches of policy.

[131] The applicant’s evidence is that she raised with Mr Thomas, apparently on four occasions, her concerns as to her security in the firm. She asserts she complained about Ms Camara and the difficulty with working for some directors as they were liars. That she did not trust Ms Crisp and sought his advice. She asserts she was told to try and re-establish the trust between herself and her colleagues. 71

[132] Mr Thomas’s evidence is that he thought she was not complaining and seeking action but was seeking advice. He discussed these issues with Ms Camara, Ms Crisp and Ms Patterson to get their views and he then gave the advice as to re-establishing trust between the individuals. In regard to the breach of information policy by the applicant (that of emailing respondent property to her personal email), Mr Thomas says the applicant did not dispute her actions at that time.

[133] Mr Thomas in evidence stated he had previously followed the issues arising from the applicant’s performance. He had been briefed by Ms Crisp and followed up personally with Ms Camara and Ms Patterson. He identified that it was a constant feedback message of consistent issues with various people, that of the applicant not following instructions.

Findings

[134] On an assessment of the totality of the evidence the Commission makes the following findings.

[135] The applicant asserts she was not provided with an adequate induction, access to training and standards required. However the evidence is that she was provided with an induction by Ms Hill, was given significant instruction throughout, and had access to suggested training courses to complete as an aid to her work issues. Given the consistent evidence as to the internal systems and standards maintained and required by the respondent the Commission finds the applicant was provided with an appropriate induction, including instructions on the respondent’s systems and requirements. Whether the applicant comprehensively understood such material or utilised such material is in doubt.

[136] In regard to the allegations of bullying against the applicant, the Commission considers the circumstance described by the applicant do not fall within an accepted definition of bullying. The observation of the applicant within the proceedings indicates the applicant is a robust individual with a strong voice and presence and such limited reactions and interface of parties including hand waving in conversations between professional officers, in context, would not amount to acts of bullying.

[137] The applicant further has asserted that her dismissal was a reaction by individuals to her complaints of bullying and by the respondent to criticisms of its operational effectiveness, structure and policies. The Commission can find no evidence or factual material to sustain that the disciplinary process was a retaliatory act or that the principals of the respondent were offended in any way by the criticisms of the applicant, even when such criticism involved direct language in the latter stages of the applicant’s employment.

[138] The Commission considers the evidence as to the applicant yelling at Ms Patterson conclusive in that it was third party corroborated and that this incident was appropriately handled and resolved between the parties. It had no effect on the applicant’s probation period.

[139] The Commission finds that the applicant throughout her employment was having difficulty with the expectations of the respondent, not only in the various benchmark requirements but also with the respondent’s structure and internal culture. The applicant provided direct criticism of the respondent’s methods to Ms Patterson and was advised just as directly that such criticisms were inappropriate from an employee. This seems to indicate a distinct naivety of the applicant in terms of her accepted employee responsibilities. Further, her manner of communication at times was considered hurtful to other colleagues, all of whom were more senior and more experienced in the relevant industry than the applicant. This is further amplified by the views expressed in these proceedings by the applicant that she was actually guiding directors with her expertise; that she was underpaid for her level of knowledge and expertise and her comments were not valued. The applicant has stated that the respondent should not be regarded as a benchmark for client interaction, that they seriously malfunction in administration and procedures, that standards do not exist, that they are dishonest, that she was disappointed in the level of professionalism, ethics and work conditions, that she had to work with substandard systems, pettiness and inappropriate behaviour. The Commission on the weight of evidence cannot identify the existence of this apparent lack of appropriate and competent administration, systems and management which the applicant asserts. The Commission does find on the evidence that the applicant consistently had difficulty meeting the requirements of her role.

[140] The applicant’s performance in her role was indeed, by 11 April 2013, on any evaluation, of concern to the respondent. The evidence is clear that budget overrun issues were identified in relation to her work. The applicant was not following instructions. 72 However the applicant continued to disagree with the criticism of her performance and appealed the warning. She also lodged a bullying complaint. This was investigated and resolved against the applicant. When she did not like the outcome, the applicant denied the process on the basis that all the behaviour by her supervisors was “bullying and harassment”, that she “did not agree with anything that was said” and “don’t expect her to agree with it.”73

[141] The Commission has considered all the evidence as to the input and response of the parties and finds that the first warning letter process was applied appropriately and for reasons that were open for the respondent to rely upon. Further the Commission finds on the evidence there are no procedural deficiencies in that warning process.

[142] The applicant was given clear direction in terms of performance improvement and the timetable for improvement was not limited. She was working with another director at her request and it was clear that subsequent assessments of her work were critical to her position with the respondent. The applicant after this negative review in regard to her work was given a final warning letter where she was advised her employment was at risk if she did not improve.

[143] It is clear she had not improved as required since the first warning. It was also clear the respondent had found issue with her application of a leave policy. The respondent within the final warning letter applied a short time frame for the review. The evidence is that Ms Crisp was seeking to evaluate performance as against two specific work directions that were assessed as requiring a modest amount of work within that period i.e.10 hours.

[144] From the evidence the Commission finds that the respondents’ actions in giving a final warning were within the reasonable actions open to them in the prevailing circumstances and there are no contentious procedural aspects resulting from that action.

[145] During the week ending 8 August 2013 the respondent identified the applicant’s performance in respect to the modest tasks required was not acceptable and further had identified an information policy breach by the applicant.

[146] The applicant has submitted the information policy issue is a minor issue and the information pamphlet in question is readily available and was for educational purposes. That she found it on a desk and thought it useful. However the evidence against this benign description of accessing this document is inconsistent with the respondent’s evidence. They assert the applicant had to physically remove it from a location; that it was not relevant to her work and she scanned it and sent it to her personal external email, outside of the respondent’s network. The respondent had submitted that this is a significant matter in terms of intellectual information not related to the applicant’s work. The Commission has formed the view on the weight of evidence the respondent’s actions and evidence is preferred and hence they can rely in these circumstances on the identified breach of policy in addition to their primary position of non-performance.

[147] The Commission finds that the actions of the respondent in applying a final warning in the above circumstances to the applicant were open to them, applied appropriately and meets a required standard of procedural fairness.

[148] In regard to the short time frame between the warning and the dismissal the respondent identified the limited work they required the applicant to apply herself to within that period. The time to review that work was set at a week and during that period the evidence indicates the respondent identified a further non-performance issue and an issue of breach of significant commercial policy by a professional officer. The Commission given the facts and evidence considers the short time frame between the final warning and the dismissal does not offend the procedural fairness requirement of such dismissal and can be relied upon as the tasks to be completed were specified and limited (estimated at 10 hours) and evaluated.

[149] In regard to specific conflicts of evidence between the parties the Commission accepts the evidence of Ms Hill, as much of it was unchallenged by the applicant.

[150] The Commission accepts the evidence of Ms Patterson in regard to the performance of the applicant and the expectations of the respondent in terms of the capabilities of a senior analyst and the directions given to the applicant.

[151] The Commission does find that the relationship between the applicant and Ms Patterson was not amiable; however the evidence of Ms Patterson was not affected by that perception.

[152] The Commission accepts the evidence of Ms Camara as to the performance of the applicant on the Menzies engagement and the recovery work that was required by her.

[153] The Commission accepts the evidence of Ms Crisp in that it identifies the concerns of the respondent, but also the actions of Ms Crisp to mitigate the matters of personality that arose and to work towards a professional resolution of the applicant’s issues. Ms Crisp was genuinely attempting to assist the applicant. She provided a new director (Ms Camara), she was aware of the relationship issues, she acted on those issues, and she provided a dedicated and responsible approach to review of the applicant’s work.

Legislation

[154] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) The person has been dismissed;

(b) The dismissal was harsh, unjust or unreasonable;

(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) The dismissal was not a case of genuine redundancy.

[155] The issues of the Small Business Fair Dismissal Code and genuine redundancy are not relevant in this case.

[156] A dismissal may be:

•	harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or
•	unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer."

[157] The criteria that the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:

(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 the Commission considers relevant.

Consideration

Was there a valid reason for the applicant’s dismissal?

[158] The Commission has considered the weight of evidence in this matter. All parties are qualified professionals involved in a specialised field of commerce and consulting. The respondent has produced six witnesses, all of whom have had a direct involvement and professional interface with the applicant at different times and circumstances.

[159] The evidence from the respondent is consistent and reflects the repeated themes of lack of performance of the applicant, a refusal to follow or carry out instructions and directions, an inability to achieve budget targets, an inadequacy in regard to paper work, difficult interpersonal relations at times and a lack of amiability in the workplace. The Commission has concluded there was a valid reason for dismissal of the applicant related to the applicant’s capacity and conduct. The evidence is more than sufficient to identify concern with her performance. The added issue of the breach of information policy on the evidence is also a valid performance issue and given its identification at the time of final review of the applicant’s performance it was appropriate to be an additional reason for dismissal.

Was the applicant advised of the reason for dismissal?

[160] It is not in dispute the applicant was advised of the dismissal.

Was the applicant given the opportunity to respond to any reason related to the capacity or conduct of the person?

[161] It was not pressed by the applicant that at any time she did not have the opportunity to respond and the evidence is clear she had such opportunities at all relevant times.

Was there an unreasonable refusal by the employer to allow a support person by the employer to be present at any discussion relating to the dismissal?

[162] The applicant has not pressed this matter and the evidence is that there has been no refusal by the employer.

Was a warning given about unsatisfactory performance?

[163] The applicant received two formal written warnings, one being a final warning.

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

[164] The procedures followed were not impacted adversely by the size of the employer’s workforce.

What would be 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?

[165] The Commission concludes that there was sufficient expertise in the enterprise to effect the dismissal appropriately and there was no adverse impact.

Are there any other relevant factors?

[166] It is apparent in this matter there existed a wide diversity of views, values and perceptions between the parties. This may have been due to the applicant being a recent arrival from Bosnia. However the applicant is an intelligent, qualified, professional expert in various disciplines and she was successful in being appointed and serving a probationary period with the respondent.

[167] Serious questions arose after the probationary period as to her ability to adapt and to accept instruction in her role. The Commission’s concern was directed to the issue of training and induction of the applicant in terms of a different or contrasting business culture that she would be required to adopt or adapt to. However what is clear in this matter is that the respondent had an involved and experienced staff that assisted the applicant. A variety of directors were provided to her to assist her performance and when she specifically requested a change of director this was also arranged. The respondent provided a significant time frame over the period between April and August 2013 to resolve the applicant’s issues and their concerns. The Commission therefore concludes the applicant was provided with sufficient opportunity and time to adapt if need be to the respondent’s requirements in regard to her role.

Was the applicant’s dismissal harsh, unjust or unreasonable?

[168] On consideration of all the relevant criteria and the weight of evidence the Commission has concluded that the dismissal of the applicant by the respondent was not an unfair dismissal.

Conclusion

[169] The application for unfair dismissal is dismissed. An order will be issued separately to this effect.

COMMISSIONER

Appearances:

Ms E Siljanovski the applicant

Mr M Crawley for the respondent

Hearing details:

2013:

Darwin

10 December

2014:

Adelaide/Melbourne/Darwin

30, 31 January and 7 February

 1   Exhibit R1 at p 231

 2   Ibid

 3   See [2013] FWC 9503

 4   Exhibit R1 at p 231

 5   PN 213-218

 6   PN 627-629

 7   PN 647-649

 8   Exhibit R1 at p 22-37

 9   PN 267-270

 10   PN 551

 11   Ibid

 12   PN 278-279

 13   PN 340

 14   PN 356-358

 15   PN 392

 16   PN 399

 17   PN 401

 18   PN 429-431

 19   PN 447

 20   PN 451

 21   Applicant’s Statement/Outline at p 7

 22   PN 533-539

 23   PN 587

 24   PN 726

 25   Exhibit R1 at p 12-15

 26   Ibid at p 13

 27   Exhibit R1 at p 16-21

 28   PN 788

 29   PN 793

 30   PN 817

 31   Exhibit R1 a p 28-33

 32   Ibid at p 38-43

 33   PN 847

 34   Exhibit R1 at p 52

 35   Ibid at p 53-55

 36   Ibid at p 56-57

 37   Ibid at p 120-125

 38   PN 891-892

 39   Exhibit R1 at p 110-111

 40   PN 945

 41   PN 1006

 42   Exhibit R1 p 231

 43   PN 1638

 44   PN 1927

 45   PN 1933

 46   PN 2124-2125

 47   PN 2285

 48   PN 2297

 49   PN 2310

 50   PN 2326

 51   PN 2332

 52   PN 2343

 53   PN 2344

 54   Ibid

 55   PN 2412

 56   PN 2505

 57   PN 2507

 58   PN 2541

 59   PN 2685-2688

 60   PN 2703

 61   PN 2867

 62   PN 2985

 63   PN 3005

 64   PN 3019

 65   Exhibit R1 at p 38-43

 66   PN 3043

 67   Exhibit R1 at p 110-111

 68   PN 3104

 69   PN 3111

 70   PN 592

 71   PN 575

 72   Exhibit R1 at p 38-43

 73   Ibid at p 50-52

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