Ms Gloria Bowden v Ottrey Homes - Cobram and District Retirement Village Inc T/A Ottrey Lodge - [2012] FWA 6468

Note: An appeal pursuant to s.604 (C2012/6038) was lodged against this decision - refer to Full Bench decision dated 4 February 2013 [[2013] FWCFB 431] for result of appeal.

[2012] FWA 6468

FAIR WORK AUSTRALIA

DECISION

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

Ms Gloria Bowden
v
Ottrey Homes - Cobram & District Retirement Village Inc T/A Ottrey Lodge
(U2011/1147)

COMMISSIONER CRIBB

MELBOURNE, 1 AUGUST 2012

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Gloria Bowden (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that her dismissal by Ottrey Homes - Cobram & District Retirement Village Inc T/A Ottrey Lodge (the respondent or Ottrey Homes) was harsh, unjust or unreasonable. Ms Bowden is seeking a remedy in respect of her dismissal.

[2] There was a conciliation conference held on 12 July 2011 but no agreement was reached between the parties in settlement of the application.

[3] The application was heard in Melbourne on 12 and 13 December 2011 and 10 February 2012.

[4] Ms Bowden was represented by Mr D Langmead, of Counsel and Ottrey Homes by Mr T Jacobs, of Counsel.

[5] Ms Bowden gave evidence. On behalf of the respondent, Ms T Crocker, Ms P Robinson and Mr P Davis gave evidence.

CHRONOLOGY OF EVENTS

[6] It may be useful if there is a brief chronology of events:

14 August 2010: An incident occurred where it was alleged by Ms Crocker that there was a conversation with Ms Cain and Ms Bazin concerning the administration of medications by Ms Crocker. Ms Cain and Ms Bazin denied talking to Ms Crocker about medications. 1

6 September 2010: Ms Bowden received a letter from Mr Davis, the Chief Executive Officer, advising of an investigation by Mr Aivaliotis as he was concerned about the culture, low morale and unhappy workplace at Ottrey Homes. 2

September 2010: Ms Bowden went to see Mr Davis to talk about the 6 September 2010 letter. She told him that the best staff (Ms Cain, Ms Barr and Ms Bazin) were off the floor 3 and were the sort of people Ottrey Homes needed.4

2 December 2010: Ms Crocker made a complaint that she was telephoned by Ms Cain at home who allegedly sought her to speak to the union and to change her version of events. 5 Ms Cain denied that the content of the conversation was as alleged.

3 - 5 December 2010: Exchanges between Ms Bowden and Ms Crocker on Facebook.

5 December 2010: Ms Bowden emailed Ms Crocker the “Workplace Politics” document. 6

7 December 2010: Mr Davis wrote to Ms Bowden setting out allegations concerning the Facebook communications between herself and Ms Crocker. 7

27 March - 7 April 2011: Investigation and report on these allegations as part of Ms Robinson’s investigation. 8

27 May 2011: Letter to Ms Bowden summarily dismissing her. 9

AGREED FACTS:

[7] The parties agree for the purpose of this proceeding that the following telephone calls were made by Ms Cain to the applicant:

“29/11/10 Telephone call from Lynette Cain’s mobile telephone to Gloria Bowden’s mobile telephone. [5.56pm - 4 minutes 57 seconds]

29/11/10 Telephone call from Lynette Cain’s mobile telephone to Gloria Bowden’s mobile telephone. [8.29pm - 17 seconds]

3/12/10 Telephone call from Lynette Cain’s mobile telephone to Gloria Bowden’s home telephone. [6.10pm - 2 minutes 38 seconds]

4/12/10 Telephone call from Lynette Cain’s home telephone to Gloria Bowden’s home telephone. [8.04pm - 23 minutes 51 seconds]

5/12/10 Telephone call from Lynette Cain’s home telephone to Gloria Bowden’s home telephone. [1.47pm - 10 minutes 32 seconds]” 10

ISSUES

1. Reasons for dismissal

[8] By a letter dated 6 September 2010 from Mr Davis, Ms Bowden was notified of an investigation by Mr Aivaliotis into the culture and low morale in the workplace. The letter stated that the investigation was being conducted on a confidential basis. Ms Bowden was required to retain all information on a confidential basis and was advised that any staff member who victimized another person for their participation in the investigation would also be disciplined. 11

[9] Following receipt of this letter, Ms Bowden signed a confidentiality agreement regarding Mr Aivaliotis’ investigation. The confidentiality agreement stated that any discussions about current staff members were not to be discussed with any current or past employees and were confidential. 12

[10] On 7 December 2010, Mr Davis wrote to Ms Bowden and advised her of allegations that, in her communications with Ms Richman on Facebook, she had insinuated that Ms Richman had been coerced into telling lies and twisting the truth in relation to Ms Bowden’s friends in the workplace and that Ms Richman would lie under oath. The letter also alleged that Ms Bowden had also intimidated Ms Richman by sending her the “Workplace Politics” document. 13

[11] It was agreed between the Health Services Union of Australia (HSU) and Ottrey Homes that Ms Robinson would investigate Ms Crocker’s allegations. In her report, Ms Robinson found that Ms Bowden’s comments on Facebook “could be perceived and were perceived as referring to Tanya Richman, and that these comments referred to issues within the workplace at Ottrey Homes....” and that “Gloria Bowden did post comments which pertained to Tanya Richman.....which were highly inappropriate and may be seen as intimidating behaviour”. 14 Further, Ms Robinson found that Ms Bowden’s emailing of “Workplace Politics” “was totally inappropriate and may be considered to be intimidatory behaviour”.15

[12] As the result of receiving Ms Robinson’s report, Mr Davis wrote to Ms Bowden on 27 May 2011. In his letter, Mr Davis stated that:

“4 December, 2010

You communicated with Tanya Richman through Facebook on 4 December 201 o and provided her with a document in order to intimidate her. I have concluded from the findings, on the balance of probabilities, that youwere aware that Tanya Richman made allegations against your “friends” at work, and that you accused Tanya of telling lies in relation to those matters.

I am also aware that you signed a confidentiality agreement when you were interviewed by Steve Avialolotis (sic).

In all of the circumstances, I have reached the conclusion that your behaviour was highly inappropriate.

I have also reached the conclusion that your behaviour in intimidating and victimising an employee who has raised an allegation against another employee is very serious. Given the highly regulated environment in which wework, I need to ensure that employees can raise complaints without fear of being intimidated and victimised.” 16

[13] Mr Davis’ letter also indicated that he had decided to terminate Ms Bowden’s employment summarily based on Ms Bowden’s “action in intimidating and victimising Tanya Richman due to her involvement in making complaints against your friends at the workplace”. 17

Findings of fact

[14] There was a dispute between the parties about what the Facebook comments meant. Before being able to address the requirements of s.387 of the Act, it is first necessary to make findings of fact about the Facebook exchanges between Ms Bowden and Ms Richman.

[15] Before commencing this, I need to clearly indicate that, although the evidence and submissions have not been fully summarised in the decision, all of the material before me has been carefully considered and taken account of.

Ms Bowden

[16] Ms Bowden’s evidence was that:

Late November/early December 2010, she and Ms Crocker were very close friends and were Facebook friends. Ms Crocker was her only Facebook friend from Ottrey Homes. 18

What caused her to put the first post “what do you do when a girl you like....” was a phone call from Ms Farrar who told her that Ms Dunn had asked Ms Hunt to go to the foyer and Ms Madgwick was there and she asked Ms Hunt to go to Mr Davis’ office. Ms Hunt told Ms Farrar that Mr Davis had asked her to write a grievance on Ms Cain for being a bully. Ms Hunt had refused. 19

The second reason was that, on 19 November 2010 (she forgot to put the date in her statement), she had been at Ms Cain’s house with she and Ms Bazin when Ms Hunt came over. She explained the content of the conversation. 20

She disagreed with Ms Cain’s evidence that she was not present at Ms Cain’s house at that time as she was. She said that Ms Cain was wrong due to her state of mind and the drugs. 21

When she posted her first Facebook comments “what do you do when a girl you like....”, she was not referring to Ms Crocker but was thinking about Ms Dunn who she suspected of telling lies to discredit Ms Cain and Ms Bazin. 22

She agreed that Ms Crocker was a “girl she liked” but said that so were the rest of the staff except for two people. 23

Her response “I wonder if she’s realised.....” was not directed at Ms Crocker as she did not know that Ms Crocker was going to answer her comment. 24 She denied that this was referring to Ms Crocker withdrawing her complaint against Ms Cain and Ms Bazin.25 She was talking about Ms Dunn.26

She was emotional and upset over the three days that she posted the comments and was rambling to her friends. 27

She did not know who had made complaints about her friends Ms Cain and Ms Bazin. 28 She did not know that Ms Crocker had made a complaint.29 She did not know anything about Ms Crocker making a complaint until she received Mr Davis’ letter.30

All that she knew was about the union meeting where they were told that Ms Cain had been accused of bullying/intimidating other employees. 31 She did not know about the investigation.32

After Ms Crocker’s “fuck you all” post, she said that it appeared that Ms Crocker was upset and frustrated. 33 She agreed that, after that, she kept asking what was wrong as she was worried about her. Ms Crocker was like a daughter to her.34

She felt threatened after the “fuck you all” post. 35

Her post about going to the dark side was about her granddaughter’s bi-polar and her son’s aspergers. Was not saying that going to the dark side included complaining and getting work colleagues into trouble. 36 She said “that applies to all facets of life” because Ms Crocker was obviously extremely upset.37

Denied that the suggestion that Ms Crocker “inbox” her was designed to put more pressure on Ms Crocker to withdraw her complaint. She said that Ms Crocker was her friend and she wanted to help her. 38

Her post “Everyone needs to be true to themselves...” was not indicating to Ms Crocker that she was forced by Ottrey Homes to complain about Ms Cain and Ms Bazin. She was trying to help her rather than put pressure on her. 39

She denied putting pressure on Ms Crocker because she felt that what was happening to Ms Cain and Ms Bazin was wrong. She did not believe that Ms Crocker had anything to do with it. 40

Her post at 7.13pm on 4 December 2010 about who the dumb whores were was because she was still concerned about Ms Crocker. She denied asking her to name Ms Cain and Ms Bazin so that she could put further pressure on Ms Crocker. 41

In terms of the use of “we” in her posts on 4 December 2010, Ms Bowden explained that it was the royal plural and that she was not talking about Ms Cain and her friends. 42

She acknowledged that the post at 7.31pm on 4 December 2010 “Oooh you’re so gooood.....” was directly to Ms Crocker. 43

Her “Truth always wins” post (7.31pm on 4 December 2010) was a positive affirmation and was specifically directed at Ms Crocker as she was trying to help her. 44

Her “I want to help you get out of this predicament. We understand” post (at 7.03pm on 4 December 2010) was her trying to find out why Ms Crocker had called people “dumb whores” on Facebook. She was trying to help her. 45 “Predicament” was not a reference to her complaint about Ms Cain and Ms Bazin. “We understand” was not a reference to she and her friends.46

Her post of “If you don’t, then I can’t help you” (at 7.11pm on 4 December 2010) was specifically telling Ms Crocker that she was there if she needed somebody to talk to. However, she could see by this time that Ms Crocker was not going to talk to her. 47

Denied that her comments about a rock and a hard place (7.48pm on 4 December 2010) were suggesting that Ms Crocker had been trapped into complaining about Ms Cain and Ms Bazin. Rather, it was that Ms Crocker was trapped in some emotional crisis at home. 48

Her post on 5 December 2012 “what’s the penalty for lying under oath” was a question directed at the scenario at Ottrey Homes. She was thinking about Mr Davis asking Ms Hunt, on 29 November 2010, to write a complaint about Ms Cain when she wrote it. 49

The post on Sunday 5 December 2010 - “my friends are in a mess” was a reference to Ms Cain and Ms Bazin. She was suggesting that they were in a mess because Ottrey Homes employees had been coerced into telling lies. 50 The Ottrey Homes employees did not include Ms Crocker to her knowledge. She just blurted it out. She was not going to tell Ms Crocker anything that she was thinking about work. She never discussed any of that with Ms Crocker as she was her friend.51

With respect to the post at 12.46pm on 5 December 2010 (“I haven’t actually said any of this is about you”), Ms Bowden explained that she did not say that it was not about Ms Crocker because she did not know that it was about Ms Crocker. As far as she was concerned, it was not about Ms Crocker. She did not know that Ms Crocker was one of the girls who had put a grievance in about Ms Cain. She did not know why she did not say that it was not about Ms Crocker. 52

The timing of various telephone calls vis a vis particular comments on Facebook were a coincidence:

(a) Agreed fact that Ms Cain had called her at 6.10pm on Friday 3 December 2010 for about 2 ½ minutes. 53 The Facebook comments commence at 5.11pm with Ms Bowden’s post at 6.08pm (“I wonder if she’s realised.....”) followed by phone call with Ms Cain at 6.10pm.54 None of the calls, including to Ms Bazin at 6.10pm (14 seconds) and the previous one to Ms Cain at 6.09pm (3 seconds)55 had anything to do with her Facebook posting. She denied lying under oath.56

(b) Agreed fact that at 8.04pm on Saturday 4 December 2010, Ms Cain called her and they spoke for nearly 24 minutes. 57 The conversation occurred in the midst of posts at 7.31pm from Ms Bowden “...we can still get you out from between the rock and the hard place”, Ms Bowden’s post at 7.31pm “Truth always win”, Ms Crocker’s post at 7.44pm “who’s we and wot about rock and hard place” and further posts - Ms Bowden at 7.48pm, Ms Crocker at 7.55pm and Ms Bowden at 8.02pm. Ms Cain did not know what Ms Bowden was doing and she had no idea she was on Facebook. She did not approve of it.58

(c) Prior to the conversation with Ms Cain at 8.04pm on 4 December 2010, she agreed that it looked like she had been calling Ms Cain and Ms Bazin at 5.43pm (twice) and 5.48pm. The call at 5.48pm was a 10 minute call when she spoke to Ms Cain. This followed a brief call to Ms Cain on her mobile when she was talking gibberish and was manic. 59

[17] At the interview with Ms Robinson, it was Ms Bowden’s evidence that:

She did not want to be interviewed by Ms Robertson as she was protecting Ms Hunt - that Ms Hunt had spoken to she and Ms Cain and Ms Bazin and she did not want to get her in trouble. 60

She told Ms Robinson that she was thinking about her granddaughter and her two jobs when she wrote the first Facebook post. 61

In the end, Ms Bowden conceded that she had told a lie to Ms Robinson about what she was thinking when she made the first Facebook post. 62

On Saturday 4 December 2010, as she and Ms Crocker were leaving work, Ms Crocker asked her if what she had written on her Facebook was about her granddaughter. She had replied ‘No’. 63

Ms Cain became a Facebook friend on 8 December 2010. Prior to then, Ms Cain and she did not know that each was on Facebook. Ms Cain could not read what was on her Facebook page. 64

[18] With respect to the Workplace Politics document, Ms Bowden’s evidence was that:

She sent the Workplace Politics document to her friend and then “out of the blue” sent it to Ms Crocker an hour and 10 minutes later at 1.40pm. 65

She sent the document to Ms Crocker as she was obviously very upset about something and she was concerned about her. 66

The document was not inappropriate. 67

Comments in the document were applicable to Ottrey Homes and other places she had worked. 68

She denied sending it to Ms Crocker with the view that the comments were applicable to Ottrey Homes and so would put pressure on Ms Crocker. 69

The call from Ms Cain to herself at 1.40pm was a co-incidence (the Workplace Politics document was emailed to Ms Crocker at 1.40pm). 70

Ms Cain was not aware that she was sending the document to Ms Crocker. 71

Ms Cain told her off for sending Ms Crocker the document. 72

She did not write the Workplace Politics document. 73

Ms Crocker

[19] It was Ms Crocker’s evidence that:

She and Ms Bowden were good friends. 74

Initially, she did not think that Ms Bowden’s first posts were about her until she reflected on them later. 75

She started thinking the posts might have been about her after a few comments had been exchanged (up to “Fingers crossed”). 76

After these exchanges, she spoke to her husband and suggested to him that she thought that they were about her. 77

Her husband told her that she needed to stick up for herself. 78 He had suggested that she use the words that she did.79

She felt uneasy after the conversation with Ms Cain and Ms Bazin about medications, then became stressed after she received a phone call from Ms Cain at home, two days before the Facebook comments started. 80 She knew that Ms Bowden and Ms Cain were friends.81

There was some confusion on Ms Crocker’s part as to when she saw Ms Bowden’s “what do you do when a girl you like...” post. In her statement, she said it was on Saturday 4 December 2010. 82 She acknowledged during the hearing that all of the posts down to “Fingers crossed” had taken place on Friday 3 December 2010.83

She asked Ms Bowden, when they were both at work on Saturday 4 December, if her first post (on Friday 3 December) was in regard to her granddaughter. Ms Bowden had responded ‘No’. 84

She posted her “fuck you all.....” comment, on Saturday 4 December 2010 sometime after work. Because she believed that Ms Bowden’s post was about her. 85 She was very stressed and upset and had reached her breaking point. The call from Ms Cain had upset her as did Ms Bowden’s status update.86

The “dumb whores” comment was aimed at Ms Cain and Ms Bazin as she had had enough. 87

She did not want to name people “the dumb whores” because she regretted putting up that statement. 88 She knew she had gone over the top with these comments.89

She denied posting that comment because she had a guilty conscience because she knew that she had made a false statement about Ms Cain and Ms Bazin. 90

She posted “I love you Gloria” to deflect her question as to who the dumb whores were. 91

She had told Ms Robinson during the interview that the “fuck you all” comment was about her family. It was not the truth because she regretted the post as it used horrible words and it was not something she was happy about. 92

She took the “fuck you all” post down shortly after it was posted. 93

She agreed that there was nothing in Ms Bowden’s Facebook postings that it was about her 94 or that Ms Bowden had stated that it was aimed at her.95

There were a lot of indications that made her believe it was about her eg “my friends are in trouble....”. 96

At that point, she had not been harassed by Ms Bowden. 97

With respect to the medication incident, she had checked the roster since Ms Cain’s hearing and found that she was wrong. Although she had been adamant that she had worked the night before, she had worked the morning of 14 August 2010. 98

She denied that she and Ms Madgwick had cooked up a story that Ms Cain and Ms Bazin had talked to her about medications. 99

She denied that the reason for going to see Mr Davis on Monday 6 December 2010 was because she thought she had been caught out making a false statement when she complained. 100

[20] With respect to the Workplace Politics document, Ms Crocker’s evidence was that:

The document, in itself, was not an offensive document but was not happy with it. Did not see the relevance and its timing after the Facebook comments. 101

It was not an overreaction to be unhappy/very upset about the contents of the document. 102

She though it referred to her being new and not in the union. Was not happy about those comments nor the ones that dissension causes distress amongst the residents. 103

Ms Robinson

[21] It was Ms Robinson’s evidence that:

She explained that she perceived the comments on Facebook as referring to Ms Crocker in terms of Ms Crocker having made a complaint in relation to the medication incident. She said that she also found that the Facebook postings that occurred over a couple of days were directed at Ms Richman and were intimidatory as they related to the complaint that she had made to management. 104

In terms of the Workplace Politics document, her understanding was that this document was referred to Ms Crocker after the Facebook postings. She recalled Ms Bowden saying that she sent it because she thought it was a good idea as Ms Crocker had got bent out of shape. There was obviously a sequence of events with the Facebook comments and, if Ms Bowden thought that Ms Crocker was bent out of shape in relation to the comments and thought that they were directed at her, the added provision of a document with the content that it had, only inflamed the situation. 105

She had concluded that the document had to do with Ottrey Homes. She believed that the document was highly inflammatory. 106 Ms Bowden said to her that she had sent the document to a few people.107

She agreed that her conclusion was that Ms Bowden’s postings pertained to Ms Crocker and were concerning issues within the workplace that were highly inappropriate and may be seen as intimidatory behaviour and that the Workplace Politics document was part of that. 108

During the interview with Ms Bowden, she documented what was told to her at the time. She said that she had no recollection of Ms Bowden indicating that she worked at another place. 109 She did recollect that she had a granddaughter and that she had talked about her granddaughter.110 Ms Bowden had started with the first Facebook comments and she indicated that the comments were not related to Ms Crocker or to Ottrey Homes but to her granddaughter’s workplace. Therefore, it is assumed that all the comments that she made were in relation to her granddaughter’s workplace. This is because she did not say that the next comment was in relation to somebody else’s workplace.111 She did not think that she had misunderstood what Ms Bowden said.112

In terms of the findings in her report, she found that the Facebook comments could be perceived by a reasonable person and they were perceived by Ms Crocker as referring to Ms Crocker. 113 She confirmed that she had perceived the comments as referring to Ms Crocker, taken from a reasonable person’s point of view.114

Mr Davis

[22] It was Mr Davis’ evidence that, about 6 December 2010, Ms Richman came to see him and told him that she had a Facebook conversation with Ms Bowden and gave him a copy of the Facebook comments. 115 Ms Crocker had told him that she had made an inappropriate comment which she had then removed from Facebook.116 She had said that Ms Bowden was a Facebook friend and that they had had a conversation.117 It was recalled that Ms Crocker felt intimidated by the conversation.118

[23] Mr Davis explained that his belief was that Ms Crocker was shaking and upset because she was concerned about the nature of the Facebook conversation and that she had received the Workplace Politics document. 119 This was based on Ms Crocker telling him these things.120

[24] It was confirmed by Mr Davis that Ms Crocker had also told him that Ms Cain had telephoned her in December 2010 and had outlined the content of the conversation. 121 It was his understanding that part of the conversation included Ms Cain saying that she could get out of whatever Ottrey Homes was forcing/coercing her to do.122

[25] Mr Davis was referred to some of the posts made by Ms Bowden and it was his view that they had a focus on Ottrey Homes and its employees and in particular the complaint made by Ms Crocker about Ms Cain. 123

[26] Although Ms Crocker had made an inappropriate comment, Mr Davis stated that, by that time, it was decided that the investigation of that matter would be handed over to Ms Robinson. 124 He explained that he wrote to Ms Bowden to raise with her the issues that Ms Crocker had raised with him. Ms Richman was making a complaint in relation to Ms Bowden so therefore he wrote to Ms Bowden with those allegations.125

[27] It was confirmed by Mr Davis that the meeting with Ms Bowden, scheduled for 13 December 2010, did not go ahead as Ms Robinson undertook an investigation. 126

[28] In terms of the discussion with Ms Bowden in September 2010, it was recalled by Mr Davis that Ms Bowden raised a concern with him about the investigation and said that Ms Cain and Ms Bazin were the sort of people that Ottrey Homes needed. 127 This was said to have made him feel that it was more likely that Ms Bowden’s Facebook postings related to Ms Crocker. This was on the basis that Ms Bowden had this concern and then in the Facebook postings she was saying that her friends were in trouble and that Ms Crocker could help them. To him, therefore, it was logical that one follows the other.128

[29] With respect to the Workplace Politics document, it was Mr Davis’ belief that it could be seen as an intimidatory document. It was an unacceptable document which contained some fairly ordinary statements and it flowed from the issues arising out of the Facebook conversations. 129

[30] Mr Davis explained that he met with Ms Bowden and gave her the termination letter but did not meet with her prior to that day. It was his recollection that it had been agreed with the HSU that Ottrey Homes would basically act on the basis of the findings of the investigation by Ms Robinson. He said that he used Ms Robinson’s report and reviewed the other documents and made his decision. 130 Mr Davis explained that he considered Ms Bowden's behaviour was serious and wilful misconduct and so terminated her employment summarily.131 He said that he considered his decision to be appropriate.132

SUBMISSIONS

[31] Mr Langmead, on behalf of the applicant, submitted that Ms Bowden was initially thinking about Ms Dunn when she made her first Facebook post. Ms Bowden had thought of others as well - Mr Davis and, at one point, Ms Cain and Ms Bazin. It was argued that, when Ms Bowden was asked if she was okay by Ms Crocker she then said that her friends were in trouble which was not directed at Ms Crocker. 133

[32] It was contended that Ms Richman took the postings the wrong way because of a guilty conscience for having invented the medication incident. Ms Crocker’s evidence was to be taken with a grain of salt, particularly regarding details. 134

[33] Further, Mr Langmead submitted that the following was what happened:

Ms Crocker saw the postings and initially did not think they were about her. 135

In the middle of a BBQ, she, egged on by her husband, posted the “fuck you all...” post. 136

The following Facebook exchanges between Ms Bowden and Ms Cain were cryptic and strange. 137

[34] It was argued that it would be beyond the Tribunal to come to a firm conclusion that it was all about Ms Bowden trying to intimidate to Ms Crocker into withdrawing a complaint which Ms Bowden knew nothing about. 138 Mr Langmead indicated that, if one took a subjective view of the events, one may understand why Ms Crocker thought that it was all about her.139 However, taking an objective view, that conclusion is not possible.140

[35] On behalf of Ottrey Homes, Mr Jacobs argued that the Facebook comments consisted of an interplay between Ms Bowden and Ms Crocker where Ms Bowden’s posts responded to and were directed to Ms Crocker’s posts. The posts of “I want to help you out of this predicament. We understand”, “If you don’t then I can’t help you...” and “Are you in between a rock and a hard place” illustrate the theme of comments directed at Ms Crocker. 141

[36] Ms Crocker was said to have reflected on the comments posted on the Friday night 3 December 2010. She and Ms Bowden were both at work on the Saturday morning and Ms Crocker asked Ms Bowden whether the Facebook comments referred to her granddaughter. Ms Crocker then reflected on the comments and posted her inappropriate comment on the Saturday afternoon. 142 After this post was made by Ms Crocker, Ms Bowden continued with her comments even though she knew that Ms Crocker was seriously upset. The comments were said to have persisted over a three day period.143 They included a post “My friends are in a mess....” which Ms Bowden confirmed was a reference to Ms Cain and Ms Bazin.144

[37] Further, the respondent submitted that Ms Bowden did not deny that the comments were about Ms Crocker on 5 December 2010. 145 As well, it was argued that Ms Bowden was aware of the allegations when she gave evidence that she disagreed with what was happening to Ms Cain and Ms Bazin.146

[38] Finally, it was contended that there was a link between the Facebook posts and the emailing of the Workplace Politics documents on the basis that Ms Bowden rang Ms Cain and Ms Bazin at 1.33pm and 1.34pm with the document being emailed at 1.40pm and the call from Ms Cain to Ms Bowden at 1.47pm.

Considerations

[39] I have considered all of the material before me and I find that:

From Ms Crocker’s perspective, the Facebook comments, following on from the medication incident and the phone call from Ms Cain on 2 December 2010 and the subsequent emailing of the Workplace Politics document on 5 December 2010, amounted to intimidation of her by Ms Bowden.

Prior to the Facebook exchange Ms Bowden and Ms Crocker were close friends.

I accept Ms Bowden’s evidence that, when she posted her first Facebook comment on Friday 3 December 2010, she was not thinking about Ms Crocker. It was Ms Crocker’s evidence that, initially, she did not think that that comment was directed at her.

Ms Crocker’s post “Fuck you all....” was highly inappropriate.

Ms Bowden was shocked by Ms Crocker’s post as it was completely out of character and became very concerned about her as she was obviously very upset and frustrated.

I accept that Ms Bowden then tried to help Ms Crocker, given the closeness of their friendship.

Up until and including the “Fuck you all....” post, the comments between Ms Bowden and Ms Crocker were cryptic/oblique.

● The posts became less cryptic/oblique, at 7.03pm (on 4 December 2010), when it was Ms Bowden’s evidence that “I want to help you out of this predicament. We understand” was directed to Ms Crocker.

● It was also Ms Bowden’s evidence that the two posts at 7.31pm on 4 December 2010 were also directed to Ms Crocker - “Ooooh you’re gooood. But we can still get you out from between the rock and the hard place” and “Truth always wins”.

● I accept that the “we” Ms Bowden was referring to was she and her friends (including Ms Cain and Ms Bazin), both in the 7.31pm post on 4 December 2010 and in the 11.35am post on 5 December 2010 - “my friends are in a mess.....”.

● Ms Crocker actively participated in the exchange between she and Ms Bowden eg “Tired of being the nice one”, “.....and I need to be heard”, “Can you tell me the lies!!! No lies Gloria.....”.

● The Facebook posts were certainly about the workplace happenings at Ottrey Homes.

[40] I accept Ms Bowden’s evidence that she was not aware that Ms Crocker had made a complaint about Ms Cain and Ms Bazin. However, I have not been persuaded that this lack of knowledge continued throughout the Facebook exchanges. Ms Bowden’s offer to help her out of her predicament, followed by “we understand”, then “...we can still get you out from between the rock and the hard place” then “my friends are in a mess and the only people who can save them are those who have been coerced into telling lies...” indicate that Ms Bowden knew about Ms Crocker’s complaint and she was offering to help her get out of the situation. She was also saying to her that Ms Crocker was amongst the only ones who could help Ms Cain and Ms Bazin.

[41] Therefore, I find that it is most probable that Ms Bowden’s Facebook comments from 7.03pm onwards on Saturday 4 December 2010 were directed at Ms Crocker and were designed to put pressure on her to withdraw her complaint against Ms Cain and Ms Bazin.

[42] With respect to the “Workplace Politics” document, I find that it was an inappropriate document for Ms Bowden to send to Ms Crocker particularly given the content of their Facebook exchanges on the 4th and 5th of December 2010. In addition, she was aware from Ms Crocker’s “Fuck you all” post that she was very upset. Also, given what was happening in the workplace at that point in time, it was inappropriate in terms of its content. It is plausible that it was sent to Ms Crocker to continue the pressure that Ms Bowden had sought to apply to Ms Crocker during the second and third days of their Facebook exchanges.

CONCLUSIONS

[43] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[44] The application was made 14 days after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an enterprise agreement (Ottrey Homes - Cobram and District Retirement Village Inc. (Trading As Ottrey Lodge), ANF and HSU Enterprise Agreement 2009). 147 Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.

[45] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:

“(a) the person has been dismissed; and

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

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

In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains to be determined is whether or not Ms Bowden’s summary dismissal was harsh, unjust or unreasonable (s.385(b)).

Was the dismissal harsh, unjust or unreasonable?

[46] In order to determine whether Ms Bowden’s dismissal was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“Section 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

I will deal with each of these factors in turn.

Valid reason – s.387(a)

[47] Mr Langmead argued that there was no valid reason for Ms Bowden’s dismissal. It was stated that a mere possibility of one person’s perception that it was about her was not sufficient for an objective view of the Facebook exchange. Ms Bowden’s comments were not designed to intimidate or victimize Ms Crocker.

[48] Further, the decision to dismiss Ms Bowden was said to have been based by Mr Davis, on a flawed report, which led him to draw the wrong conclusion about the Facebook exchanges.

[49] Ottrey Homes contended that, by posting the status updates and subsequent Facebook comments, Ms Bowden sought to intimidate Ms Crocker to retract her complaint about Ms Cain. In Mr Davis’ letter of 6 September 2010, Ms Bowden was directed not to victimise/intimidate employees because of the information they had provided to Ottrey Homes.

[50] Further, the provision of the Workplace Politics document to Ms Crocker was said to be consistent with her comments on Facebook. The document itself was stated to contain inappropriate comments.

[51] On the basis of the findings set out in paragraphs 39 to 42 above regarding the meaning and purpose of Ms Bowden’s Facebook comments and the Workplace Politics document, I find, on fine balance, that there was a valid reason for Ms Bowden’s dismissal. From 7.03pm on Saturday 4 December 2010, Ms Bowden’s Facebook comments were about she and her friends helping Ms Crocker get out of her “predicament/being between a rock and a hard place”. The “my friends are in a mess” was a direct appeal to Ms Crocker to withdraw her complaint. The subsequent sending of the Workplace Politics document continued the pressure on Ms Crocker but in a different way. On the other hand, it was Ms Crocker’s evidence that, prior to the Facebook exchanges, Ms Bowden had not harassed her. They both gave evidence of the closeness of their relationship. Further, these events need to be viewed in the context of the workplace as it was at that time, on the basis of Mr Davis’ and Ms Bowden’s evidence.

Notification of the reason – s.387(b)

[52] It was argued by Mr Langmead that Ms Bowden was not notified of the reason for her dismissal and that there was a requirement for the notification to be before the dismissal has occurred.

[53] Ottrey Homes contended that Ms Bowden was notified of the allegations regarding her conduct in Mr Davis’ letter of 7 December 2010. Secondly, at the interview with Ms Robinson, Ms Bowden was again notified of the allegations against her.

[54] On the basis of the letter of 7 December 2010 to Ms Bowden and her also being notified of the allegations during the interview with Ms Robinson, I am satisfied that Ms Bowden was notified of the reason for her dismissal.

Opportunity to respond – s.387(c)

[55] It was contended that Ms Bowden was never given an opportunity to properly respond to the adverse findings in Ms Robinson’s report prior to being dismissed. The termination letter of 27 May 2011 was said to contain a short summary of Ms Robinson’s findings. As the findings in Ms Robinson’s report were relied upon by Mr Davis in making his decision to dismiss Ms Bowden, it was submitted that Ms Bowden was not given an opportunity to respond to the adverse findings.

[56] Further, it was argued that the process was flawed as Mr Davis relied on a flawed investigation and report. Therefore, he drew the wrong conclusion about Ms Bowden’s Facebook comments.

[57] The respondent submitted that Ms Bowden was given an opportunity to respond to the allegations against her in the interview with Ms Robinson.

[58] Having considered all of the material before me, I am satisfied that Ms Bowden was provided with an opportunity to respond to the reason for her dismissal. I have not been persuaded that Ms Robinson’s report was flawed. Further, I accept Mr Davis’ evidence that he made up his own mind about whether to dismiss Ms Bowden, independent of Ms Robinson’s findings.

Support person – s.387(d)

[59] The evidence indicates that Mr Bolano from the HSU attended Ms Bowden’s interview with Ms Robinson.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[60] As the reasons for Ms Bowden’s dismissal related to her conduct, this factor is not relevant.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[61] No submissions were made by the parties about the impact of the size of the business on the procedures followed in effecting the dismissal.

Any other matters – s.387(h)

[62] It was submitted by Mr Langmead that the consequences for the personal and economic situation of Ms Bowden are harsh, given her age and that she resides in country New South Wales. 148

[63] On the other hand, the respondent contended that the following matters were relevant:

It is important that an employer be able to take steps to prevent and stop victimisation and intimidation of its employees. 149

In the aged care industry, it is critical that employees are able to confidentially raise issues with their fellow employees and also with their employer without fear of retribution or reprisals. 150

Account should be taken of Ms Bowden’s dishonesty which should weigh heavily against her application. 151

[64] Account will be taken of all of these other matters.

Conclusion

[65] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on fine balance, that Ms Bowden’s summary dismissal was harsh. Ms Bowden was summarily dismissed rather than dismissed with notice. As she was still being rostered to work, albeit, with difficulty, in a separate area to Ms Crocker, there would not appear to be any justification for dismissal without notice or pay in lieu of notice. Ms Bowden’s dismissal was also harsh as she had had no previous allegations/complaints made about her conduct and the allegations related to one occurrence (the Facebook exchanges/sending of the Workplace Politics document). As well, Ms Crocker participated equally in the Facebook exchanges and there does not appear to have been any disciplinary action taken regarding her “Fuck you all” Facebook post.

[66] It therefore follows that, pursuant to s.385 of the Act, Ms Bowden has been unfairly dismissed.

REMEDY

[67] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[68] With respect to the requirements of s.390, I am satisfied that Ms Bowden was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Ms Bowden has made an application under s.394 of the Act (s.390(2)).

[69] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met.

[70] The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). Ms Bowden is seeking reinstatement which is opposed by the respondent. In all of the circumstances of this matter, I am satisfied that reinstating Ms Bowden is inappropriate. It is my view that it would be a difficult situation if Ms Bowden was returned to the workplace.

Compensation

[71] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[72] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

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

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

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

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

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

(g) any other matter that FWA considers relevant.”

[73] I will deal with each of the criteria in turn.

s.392(2)(a) - viability of employer’s enterprise

[74] There was no material before me that any order made would affect the viability of the respondent. Therefore, I am satisfied that the order I intend to make will not impact in this regard.

s.392(2)(b) - length of applicant’s service

[75] Ms Bowden commenced employment with Ottrey Homes on a casual basis in April 2007. She became a permanent part time employee on 5 February 2008. 152 Ms Bowden’s length of service was four years and three months.

s.392(2)(c) - remuneration would have been likely to receive

[76] There does not appear to have been submissions by either the applicant or the respondent about s.392(2)(c).

[77] Having considered all of the material before me, I find that it is likely that, in the absence of dismissal, Ms Bowden would have continued with Ottrey Homes for a period of at least six months.

[78] During the hearing the parties agreed to ascertain Ms Bowden’s hourly rate at the time of dismissal. Also missing is the number of hours per fortnight that Ms Bowden worked. Both parties are requested to reach a common view about these two matters.

s.392(2)(d) - efforts to mitigate the loss

[79] It was Ms Bowden’s evidence that she continued on with the second job that she had at the time of her dismissal. In addition, she has started a small business. 153

[80] On the basis of the material before me, I am satisfied that Ms Bowden has made efforts to mitigate the loss of her employment with Ottrey Homes.

s.392(2)(e) and (f) - the amount earned between dismissal and the making of the order and between the order and receipt of compensation

[81] Ms Bowden provided evidence of her earnings from her business for November 2011 ($342). 154 She also provided the payslips from her other employer which showed that, from 23 May 2011 to 27 November 2011, Ms Bowden earned $3152.81. Ms Bowden’s Centrelink payments were also provided. However, such payments are not taken account of in calculating the amount earned.

[82] Given the elapse of time since the hearing, the applicant’s representative is requested to provide the Tribunal and the respondent with updated earnings from Ms Bowden’s “other” job and from her business.

s.392(2)(g) - any other matters

[83] There were no other relevant matters sought by either party to be considered by the Tribunal.

s392(3) - misconduct

[84] As Ms Bowden was dismissed for serious misconduct, a deduction of 20% will be made.

Contingencies

[85] In the final calculation of compensation, I propose to make a small adjustment of 10% on the basis that a substantial portion of the projected period of continued employment has passed.

Shock or distress

[86] No part of the provisional compensation amount relates to any shock or distress suffered by Ms Bowden (s.392(4)).

[87] The information sought from the parties (the hourly rate and number of hours per week and the amount of earnings from the “other” job and business) is to be forwarded to the Tribunal and each other by 24 August 2012.

[88] Once this information is received, the Tribunal will be able to finalise the amount of compensation on the basis set out, with respect to deductions for misconduct and contingencies, in paragraphs 84 and 85 above.

COMMISSIONER

Appearances:

D Langmead, of Counsel for the Applicant

T Jacobs, of Counsel for the Respondent

Hearing details:

2011.
Melbourne:
December 12, 13.

2012.
Melbourne:
February 10.

1 Exhibit A1 at Appendix 8

2 Ibid at Appendix 2

3 Transcript PN 242

4 Exhibit R7 at paragraph 27

5 Exhibit R5 at paragraph 8 - 10

6 Exhibit A1 at Appendix 5

7 Ibid at Appendix 7

8 Ibid at Appendix 8

9 Ibid at Appendix 9

10 Exhibit R1

11 Exhibit A1 at Appendix 2

12 Ibid at Appendix 3

13 Ibid at Appendix 7

14 Ibid at Appendix 8 at pages 16 - 17

15 Ibid at page 17

16 Ibid at Appendix 9

17 Ibid

18 Transcript PN 448 - 449, 461 - 462 and 465

19 Exhibit A1 at paragraph 7 and 9

20 Transcript PN 355, 419 - 420, 423, 425 - 427

21 Ibid PN 429

22 Ibid PN 437 and Exhibit A1 at paragraph 13

23 Ibid PN 499 - 500 and 504

24 Ibid PN 505 - 506

25 Ibid PN 510

26 Ibid PN 437, 511 and 617

27 Ibid PN 513 - 518

28 Ibid PN 347 - 348

29 Ibid PN 508, 510, 513, 688 and 770

30 Ibid PN 768 and Exhibit A1 at paragraph 12

31 Ibid PN 401, 398 and 410 - 415

32 Ibid PN 409

33 Ibid PN 572

34 Ibid PN 572 - 575

35 Ibid PN 588 and Exhibit A1 at paragraph 22

36 Ibid PN 576 and ibid at paragraph 19

37 Ibid PN 579

38 Ibid PN 587 and Exhibit A1 at paragraph 22

39 Ibid PN 590 - 593

40 Ibid PN 595 - 598

41 Ibid PN 603 - 605

42 Ibid PN 606 - 611 and 619 - 620

43 Ibid PN 613

44 Ibid PN 621 - 622

45 Ibid PN 629

46 Ibid PN 631 - 634

47 Ibid PN 635 - 636

48 Ibid PN 658

49 Ibid PN 641 - 642, 647

50 Ibid PN 696 - 697

51 Ibid PN 697 - 698

52 Ibid PN 703 - 706, 708 - 709, 743, 803

53 Exhibit R1

54 Transcript PN 532 - 534, 543 - 547 and 549 - 553

55 Exhibit R2

56 Transcript PN 554 - 557

57 Exhibit R1

58 Transcript PN 674 - 676, 715

59 Ibid PN 678 - 687

60 Ibid PN 250 - 251, 520 and 838 and Exhibit A1 at paragraph 14

61 Ibid PN 264, 267 - 268, 270, 439 - 440, 437 - 438 and 839 and ibid at paragraph 15

62 Ibid PN 443 - 447

63 Ibid PN 247, 525 - 526 and 617

64 Ibid PN 294, 298, 478 and 482 - 484

65 Ibid PN 253, 726 and 728 and Exhibit A1 at paragraphs 27 - 28

66 Ibid PN 261 and 769 - 770 and ibid at paragraph 27

67 Ibid PN 733, 744 - 746 and 805

68 Ibid PN 748 - 762

69 Ibid PN 763

70 Ibid PN 720, 726 and 731

71 Ibid PN 715 and 726 - 727

72 Ibid PN 714

73 Ibid PN 796 and 805

74 Ibid PN 1158 and Exhibit R5 at paragraph 11

75 Ibid PN 1065, 1147 - 1148, 1213 and ibid at paragraphs 14 and 17

76 Ibid PN 1149 and 1161

77 Ibid PN 1149 - 1150, 1161 and Exhibit R5 at paragraph 18

78 Ibid PN 1214 and ibid

79 Ibid PN 1146

80 Ibid PN 1149, 1151 - 1152, 1065, 1160 and 1167

81 Ibid PN 1151

82 Exhibit R5 at paragraph 13

83 Transcript PN 1123

84 Ibid PN 1050, 1056 and 1211

85 Ibid PN 1064, 1057 and 1141

86 Exhibit R8 at paragraph 20

87 Transcript PN 1145

88 Ibid PN 1175

89 Ibid PN 1186 and Exhibit R5 at paragraphs 20 - 21

90 Ibid PN 1066 - 1067, 1084, 1160, 1168 and 1187

91 Ibid PN 1185

92 Ibid PN 1058 - 1060

93 Ibid PN 1205

94 Ibid PN 1159 and 1179

95 Ibid PN 1171

96 Ibid PN 1172

97 Ibid PN 1158

98 Ibid PN 1070 - 1755, 1138

99 Ibid PN 1079

100 Ibid PN 1203 - 1204 and Exhibit R5 at paragraph 14

101 Ibid PN 1196 - 1197

102 Ibid PN 1200 and Exhibit R5 at paragraphs 41 - 41

103 Ibid PN 1215 - 1224

104 Ibid PN 1271

105 Ibid PN 1272 and 1433

106 Ibid PN 1434 - 1436

107 Exhibit R6 at paragraph 8

108 Transcript PN 1460 - 1462

109 Ibid PN 1326 and Exhibit R6 at paragraph 7

110 Ibid PN 1326, 1414, 1416, 1420 and 1426 - 1427

111 Ibid PN 1455 - 1458

112 Ibid PN 1328

113 Ibid PN 1401 - 1402

114 Ibid PN 1410 - 1411

115 Ibid PN 1555 - 1557 and 1575 - 1576 and Exhibit R7 at paragraph 30

116 Ibid PN 1584

117 Ibid PN 1587

118 Ibid PN 1588

119 Ibid PN 1598 - 1601

120 Ibid PN 1602

121 Ibid PN 1603 - 1604 and 1629 and Exhibit R7 at paragraph 40

122 Ibid PN 1629 - 1631 and 1634 - 1642 and 1651 and ibid at paragraph 41

123 Ibid PN 1639 - 1655 and ibid at paragraphs 41 - 44

124 Ibid PN 1591

125 Ibid PN 1592

126 Ibid PN 1608 - 1610 and Exhibit R7 at paragraph 35

127 Ibid PN 1620 - 1624 and ibid at paragraph 27

128 Ibid PN 1620 - 1627

129 Ibid PN 1656 - 1660 and 1669 and Exhibit R7 at paragraph 46

130 Ibid PN 1670 - 1675 and ibid at paragraphs 36 - 49

131 Ibid PN 1677 - 1679

132 Ibid PN 1680 - 1681

133 Ibid PN 1823 - 1824

134 Ibid PN 1825

135 Ibid PN 1827

136 Ibid PN 1828

137 Ibid PN 1829

138 Ibid PN 1831

139 Ibid PN 1831

140 Ibid

141 Ibid PN 1847

142 Ibid PN 1849

143 Ibid PN 1848 - 1850

144 Ibid PN 1851

145 Ibid PN 1852

146 Ibid PN 1853 - 1854

147 Exhibit R10 at Attachment PD2

148 Exhibit A2 at paragraph 23

149 Exhibit R4 at paragraph 67

150 Ibid at paragraphs 68 - 69

151 Ibid at paragraph 70

152 Exhibit R7 at paragraph 8

153 Transcript PN 299 - 304

154 Exhibit A4

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