Ms Simone Phillips v Pram Warehouse Pty Ltd - [2012] FWA 5508

[2012] FWA 5508

FAIR WORK AUSTRALIA

DECISION

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

Ms Simone Phillips
v
Pram Warehouse Pty Ltd
(U2011/7121)

COMMISSIONER CRIBB

MELBOURNE, 12 JULY 2012

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Simone Phillips (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of her employment by Pram Warehouse Pty Ltd (the respondent) (Pram Warehouse) was harsh, unjust or unreasonable. Ms Phillips is seeking a remedy in respect of her dismissal.

[2] A conciliation conference was held on 23 May 2011 but the matter was not settled. There was a hearing on 7 November 2011. Ms Phillips was represented by Mr P R Smith, of Counsel and the company was represented by Mr J Tunn, Agent.

[3] Evidence was given by Ms Phillips. For the respondent, evidence was given by Ms M Bradley, Store Manager, Robina outlet of the respondent.

THE EVIDENCE

APPLICANT

[4] Ms Phillips provided, in effect, two witness statements 1 and also gave oral evidence. She commenced employment with Pram Warehouse as a retail sales person in about October 2009.2

[5] It was Ms Phillips’ evidence that she would have continued in her employment with Pram Warehouse if she had not been dismissed as she loved her job there. 3 She said that Ms Bradley was well aware that she wanted to go further in the company. She said that she was currently unemployed but that she had made extensive efforts to find alternative employment.4 It was stated that she had been employed for about 18 months prior to her dismissal and that she had not received any disciplinary warnings.5

[6] Ms Phillips explained that she had always worked on Friday, Saturday and Sunday but that, for the last six months, she had started picking up a few extra days. She usually, therefore, worked 4 to 5 days a week. 6 It was confirmed by Ms Phillips that the roster for March and April 2011 was an accurate record of who worked when.7

[7] With respect to delivering goods to customers, Ms Phillips stated that she did but that it was not a regular occurrence - maybe 2-3 times a month. She stated that she had only got paid for one delivery (in Palm Beach). It was explained that, if the delivery was on her way home or close to work, she did not mind dropping goods off to customers. 8

[8] It was confirmed by Ms Phillips that she had purchased quite a few things from Pram Warehouse since she started working there. 9

[9] In terms of her children coming into work, Ms Phillips recalled that there was one day when she had picked them up from school as the school had rung because her youngest child was sick. As it was close to finishing time and she could not arrange for anybody else to pick them up, she went and collected both her children. They were said to have been in the store for about half an hour. 10 It was Ms Phillips’ view that the occasion that was referred to in Ms Mitchell’s witness statement was when her two children and her niece and nephew came in to get their handprints done and were being disruptive. She said that they were not at work with her that day, rather they were there just getting their handprints done.11

[10] As well, Ms Phillips said that she had to bring her daughter to work with her one day because she could not get anyone else to look after her. It was recalled that she had rung Ms Bradley and explained the situation to her. Ms Bradley’s response was said to have been that it was not an ideal situation but there was no one else who could be called in. Ms Phillips commented that her daughter was very well-behaved and that Ms Bradley actually had her doing little jobs and helping her out around the store. 12

Saturday 2 April 2011

[11] With regard to the events of Saturday 2 April 2011, it was recounted by Ms Phillips that, when she arrived at work she had knocked on the door as usual and Ms Bradley had let her in. Ms Bradley had asked her if she could have a word with her privately as she had requested the other staff to wait in the lunchroom. 13 Ms Bradley had then asked her what was going on with the Love and Care highchair.14 Ms Phillips recalled that she had told her what had happened. Ms Bradley had then asked her about the pink blanket that she had written in the diary.15 Ms Phillips stated that she had crossed it out in the diary after she had paid for it. When asked for the receipt, Ms Phillips said she did not have it on her but that she had paid for it on her keycard so it would be on her bank statement.16

[12] Ms Bradley also said to her that Ms Mitchell had approached her and told her that she (Ms Phillips) had stolen a bag of toys. 17 Ms Phillips indicated that she had no idea as to what Ms Bradley was talking about and thought that she was talking about the pink blanket.18 She had responded that it could have been part of a delivery as that was the only thing that she could put it down to as she had not left work with any other bag of toys.19 It was Ms Phillips’ evidence that, at that point in time, she did not understand why she was being dismissed. She had assumed that it was for everything (pink blanket and bag of toys).20

[13] When asked as to why, in neither of her witness statements had she mentioned anything about delivering goods on or about 18 March 2011, Ms Phillips’ response was that she had no idea. She stated that she had always said that it was a delivery and that the bag of sassy toys was part of the delivery. Ms Phillips said that, when Ms Bradley raised the allegations of theft with her, she had told Ms Bradley that it could have been part of a delivery. 21

[14] Ms Phillips recalled that Ms Bradley had then gone on to say that she had been about to give her five days a week and to start teaching her the ropes but now she could not trust her and that she had to go. 22 It was stated that no dates of when the alleged theft occurred were mentioned by Ms Bradley.23

[15] It was recalled that Ms Bradley had also brought up the day that she had brought her children into work and had told her that she could have rung her. Ms Phillips’ response was that she knew that Ms Bradley was interstate and that Debbie was not available. She said that she could not leave her children at school and that they were only in the store for half an hour. 24

[16] It was recounted that Ms Bradley had then accused her of stealing and that she was not interested in listening to her response. 25 She said that she was not given an opportunity to respond to the allegations. It was stated that she did not find a receipt for the bag of toys because they were not hers and she had delivered them.26

[17] Ms Phillips said that she was just dumbfounded and was really upset and had left the store. She then remembered that she had left some things at work and so went back to the store and collected her things. Once she was home, she said that she found her bank statement and rang Ms Bradley and told her that she had found the receipt for the pink blanket and that she did not do it. Ms Bradley had responded that that was not good enough, that she was busy and for her to ring on the Sunday. 27 When she rang on the Sunday (3 April 2011), Ms Bradley had told her that it was really busy and asked her to give her a call on the Monday. Ms Phillips called on the Monday but by the time she got through, she was told that Ms Bradley had gone home sick. As she felt that she was getting the run around, she said that she would have to seek legal advice. Ms Phillips stated that she had only said that to make the point that she was innocent and that it was not a threat.28

[18] On Tuesday 5 April 2011, Ms Phillips called Ms Bradley on her mobile and had asked whether this could be sorted out. Ms Bradley had replied that she had been thinking about giving her job back 29 but that she (Ms Phillips) had rung the store yesterday and threatened Debbie with a lawyer. Ms Bradley had gone on to say that she was not at work because she was sick and that she could not deal with this and to ring her the next day. As she felt bad because Ms Bradley was sick and not at work, Ms Phillips sent her a text saying that she was sorry that she was not well and was sorry to have been hassling her but she was just trying to make Ms Bradley see that she hadn't done what she was being accused of. The next morning, when Ms Phillips telephoned Ms Bradley, Ms Bradley was said to have responded that she had spoken to Steve about it and that he had said that “what’s done is done” and that Ms Phillips had to cop it on the chin and eff off. It was stated by Ms Phillips that Ms Bradley did not refer to the security camera and tape until the conciliation conference.30

[19] Ms Phillips explained that, on weekends, she and Ms Mitchell were often rostered on together. It was her view that she was the most senior staff member and that, on weekends, she was “in charge”. This was because the other employees were new and also because she was training Ms Mitchell and the others. She had thought that she and Ms Mitchell were friends. 31

[20] Ms Phillips confirmed that the date on which the alleged theft occurred was 18 March 2011. She indicated that she had made a note in the diary on Saturday, 20 March 2011 regarding a power pack - I-Glide. It was stated that the other notes were not in the diary when she made her note about the power pack and that they were not in her handwriting. 32 With respect to the diary entries on Wednesday, 23 March 2011, Ms Phillips stated that she wrote the note about her having to pay for the pink blanket and that she had crossed it out after she had paid for it.33

[21] Ms Phillips agreed that she was very rough around the edges and that she had said “fuck off” in jest to Ms Mitchell during a conversation one afternoon. She recounted that, on or about 18 March 2011, as she and Ms Mitchell were leaving work and walking to their cars, Ms Mitchell had said to her that she hoped that she was not stealing those things (a bag of toys). Ms Phillips had replied “Oh, fuck off” and that, she might be naughty but she was not a thief. She also told Ms Mitchell that it was part of a delivery, the receipt was in the bag and did she want to see it? 34 It was stated that she also had a car full of furniture to deliver as well.35

[22] Ms Bradley said that they had both sort of laughed it off and got in their respective cars and left. It was explained that by “naughty” she meant that she would match the online price for in-store customers. Ms Phillips indicated that she could not remember the exact date of this conversation but confirmed that it had occurred when they were both walking to their cars. 36

[23] It was agreed that Ms Bradley, the Store Manager, always had her mobile on her and if something important came up, she would try and call her and the reverse also happened as well. 37

RESPONDENT

Ms Bradley

[24] Ms Bradley provided a written witness statement 38 and also gave oral evidence. She is the Store Manager of the respondent’s outlet at Robina and has been for about 2 ½ years.39

[25] With respect to the issue of the company reporting the matter to the police, it was Ms Bradley’s evidence that she spoke to her boss and he said that she was to make a report to the police. However, he left it up to her as to when she did this. It was recounted that, after Ms Phillips had threatened to take legal action, her boss told her to report the matter to the police. Ms Bradley reported it at the Robina police station on 6 May 2011. When the officer told her that once he filed the report, she could not retract it, she made the decision that she would not go ahead with it because it was quite a drastic action to take. She said that, in hindsight, that was probably the wrong thing to do. 40

30 March 2011

[26] It was recalled that, on 30 March 2011, she was approached by Ms Mitchell who said to her that she needed to tell her something and that she did not like doing this because Ms Phillips was a friend of hers. She then told her that she had seen Ms Phillips taking goods off the store shelf (some sassy toys and a pink blanket) and putting them into a white bag on 18 March 2011. She had then double bagged them and put them behind the counter. Ms Mitchell had then said that she did not want anyone stealing on her watch so she just wanted Ms Bradley to know that Ms Phillips took the goods out of the store and that they had not been returned or paid for. 41 Ms Mitchell had also told her that she had said to Ms Phillips as she was holding the door open for her, that she was going to say something to Ms Bradley because Ms Phillips could not steal on her watch. Ms Phillips’ response was said to have been that it had nothing to do with her.42 They then both left and went home.43

[27] Ms Mitchell was said to have also told her that, the next day (19 March 2011), she had made a record of it in the work diary. It was confirmed by Ms Bradley that, in Ms Mitchell’s handwriting was the note “Check with Simone about her bag of goodies what she wants out of the bag’. 44 Ms Mitchell had said that she had written the note to cover her arse. Ms Bradley recounted that on the day Ms Mitchell told her about the note (30 March 2011), she had looked in the diary and the note was there. She said that she had not checked the diary prior to 30 March 2011 and did not know exactly when Ms Mitchell made the note.45

[28] It was recalled by Ms Bradley that her response to Ms Mitchell was that she would have a look at the CCTV footage. She indicated that she did not simply take Ms Mitchell’s word and immediately sack Ms Phillips. It was also Ms Bradley’s evidence that she believed Ms Mitchell because it was a big thing for Ms Mitchell to actually tell her about it in the first place. 46 Ms Bradley stated that she trusted what Ms Mitchell had told her.47 She said that she did not know why Ms Mitchell had left it until 30 March 2011 to talk to her about it. If she had worked with Ms Mitchell prior to then, she did not know why she had not mentioned it earlier.48

2 April 2011

[29] Ms Bradley explained that, when Ms Phillips came into the store, she asked her about the white bag with the toys in it. Ms Phillips hesitated and then said that she took them home and that they were at her mum’s house because she wanted to pick some stuff out of them. She had responded that that was three weeks ago. She asked Ms Phillips if she had receipts for them and she had replied that she did not have them on her. She then gave Ms Phillips until the close of the day to produce the receipts. Ms Phillips was also told that she had looked at the CCTV footage and that it was exactly as Ms Mitchell had described it to her. Ms Phillips had said yes but that the toys were at her mum’s. Ms Bradley had responded that that was three weeks ago and Ms Phillips had said that her mother has not chosen yet what she wants. It was recalled that she had responded that the goods have been taken out of the store and that that to her was theft. She also told Ms Phillips that Ms Mitchell had left a note in the diary but that she had not seen a corresponding note from her. Ms Phillips was said to have then said “well, you know” thereby admitting that she had them (the toys) at that point. Ms Bradley said that that was then a “done deal”. 49

[30] Ms Bradley recalled that, on 2 April 2011, she and Ms Phillips did not talk about the pink blanket at first. She had asked Ms Phillips about the bag of toys - that was how the discussion started. Then, she had said to Ms Phillips that she saw that there was a pink blanket on the top of the bag of toys. It was recounted that she did not single out the pink blanket specifically. She had asked Ms Phillips about all the goods which included the pink blanket. She had then established that Ms Phillips’ mother had the toys and so therefore thought that she would not have a receipt for those. Then Ms Phillips’ story had changed and she said that she had purchased them and could produce the receipts. She recalled that she had told Ms Phillips that if she had any receipts, to bring them into her by the end of the day. 50

[31] It was confirmed by Ms Bradley that, at the end of the conversation, she asked Ms Phillips as to whether she had brought the children into the store. When Ms Phillips had responded that she had, she had reminded her about the procedure to be followed when children are sick. She said that that had nothing to do with why Ms Phillips was asked to leave. 51

[32] Ms Phillips then started to walk towards the back of the store. It was recalled that she told Ms Phillips that she had to let her go today because she could not have her working there because theft is theft no matter how you look at it unless she produced the receipts by the end of the day. She said that Ms Phillips was upset in a calm way and that she had then walked out of the store. She stated that Ms Phillips was crying. 52 When she came back to pick up her drill and some other things, she had not asked any questions or to see the CCTV footage and was still very calm.53 It was stated that Ms Phillips was upset but she was not raving or carrying on. It was said that she seemed to accept what had happened when Ms Bradley told her what she had seen on the footage.54

[33] It was recalled by Ms Bradley that what she saw on the CCTV footage was Ms Phillips putting four or five sassy toys into a white bag and that there was already something else in the bag. She had the blanket on top of the bag as she walked towards the camera. She didn’t see her any further because she went behind the counter. However, at the end of the day, she did see Ms Phillips go behind the counter. She then saw Ms Phillips and Ms Mitchell go to the kitchen and bring their handbags up. Ms Mitchell had then stood at the door and opened it and waited for Ms Phillips who went behind the counter and got the white bag off the floor and carried it out of the shop. 55

[34] Ms Bradley’s view was that it was never raised with her that the toys were part of a delivery - it was news to her. She indicated that, if there was a delivery for that day, there was usually a message in the diary - which there wasn’t on that day. 56 She said that there was no mistaking what she saw on the CCTV tape. She stated that she was absolutely satisfied that it was a case of theft.57

[35] It was stated by Ms Bradley that she put the accusation of theft to Ms Phillips and that Ms Phillips had plenty of time to tell her that it was part of a delivery. She said that Ms Phillips had hesitated and had said that her mother has the toys and was deciding which ones she wanted out of the bag. When she told Ms Phillips what was in the bag, Ms Phillips had not denied it. It was Ms Bradley’s view that she gave Ms Phillips an opportunity to explain. However, Ms Phillips had just said that her mother had the toys and she was deciding what she was picking out of the bag. 58 To her knowledge, Ms Phillips had not brought the toys back nor did she ever pay for them.59

[36] With respect to the pink blanket, it was confirmed by Ms Bradley that there was an entry in the work diary on 23 March 2011 that says that Simone is to pay for the pink blanket. She said that the entry does not say that she has paid for it and that she was not aware of this entry until a bit later. Also, she did not know whose handwriting it was. 60 It was also confirmed by Ms Bradley that she had broached the bag of toys with Ms Phillips as it was the toys that she was primarily concerned about. As the pink blanket was on the top of the bag, it was obviously mentioned.61

[37] It was agreed by Ms Bradley that she was always available on either her mobile or the landline. She said that she had all of the staff’s phone numbers. 62 Ms Bradley thought that she had returned from holidays around 30 March 2011 and that Wednesday, 30 March 2011 was her first day back working with Ms Mitchell.63

[38] Ms Bradley confirmed that, on 6 May 2011, she made a formal complaint to the police and that it was the first time she had spoken to the police. She agreed that it was a month after the event. It was indicated that she did not undertake an investigation and obtain statements from staff members. She said that there was only one person who had observed the actual theft and that was Ms Mitchell. 64

[39] With respect to the conversation that she had with Mr Kassem, Ms Bradley indicated that she had called him on the afternoon of 2 April 2011 and told him what she had done and the circumstances around it, without embellishment. In terms of the contents of Mr Kassem’s statement, Ms Bradley stated that he had obtained the information from somebody else, not from her, and unbeknownst to her. She also said that she knew nothing about his statement. 65

[40] It was agreed by Ms Bradley that Ms Phillips was the longest serving of all of the employees. She said that she was a good worker, a nice person and that she was ambitious. 66 She said that Ms Phillips did not swear much and did not think that she did at work. It was agreed that she could be a little expressive in her conversation with friends.67

[41] It was confirmed that it was common practice that, when a delivery was to be made, a note was put in the diary. Ms Bradley went through the diary but could not find a note to say that there had been a delivery on that day. It was stated that she was not in the store that day as she was away at the time. 68 Ms Bradley indicated that, sometimes, the staff make a copy of the tax invoice and attach it to the item that is being delivered and it went with the item. As well, sometimes they wrote notes on big pieces of paper that says that tomorrow, something is going out. The note would have gone in the rubbish bin at the end of the day as it was not something that was kept.69 Ms Bradley said that she would not make anything out of the fact that there was no note in the diary. She said that the goods could have been delivered.70

[42] It was Ms Bradley’s recollection that she had not told Ms Phillips that she was putting her on for more days. Rather, she told Ms Phillips that she was giving her a little bit more responsibility by her doing lay-bys or taking charge of the Wednesday afternoon when the truck comes in, maybe putting tags on and making sure that everything is tagged and in its right place. She said that these were not managerial duties. Rather, she was trying to delegate a little bit more as sometimes she takes too much on herself because she likes things done a certain way. 71 Ms Bradley understood how important the job was to Ms Phillips and so she did not take the matter lightly and she did not want to do what she did.72 It was her understanding that Ms Phillips and Ms Mitchell were friends.73

[43] Ms Bradley explained that there is only one Manager per store. She stated that the buck stopped with her so that, if anything went wrong, she was responsible for fixing it. 74 She agreed that Ms Phillips generally worked weekends but said that it was her choice to work on Sunday because she got the extra money and could get a break from the children. It was indicated that she did not know that, for the first 12 months, Ms Phillips was not paid extra for working weekends. This was because all of the employees dealt directly with head office about their pays.75

[44] It was Ms Bradley’s view that it was possible that Ms Mitchell would not have been able to know whether goods had been returned or paid for. However, she said that if someone was accused of stealing goods, wouldn’t that person have said that they had paid for them on that day? She agreed that Ms Mitchell did not work every day and that she did not have access to the store’s accounts. She explained that all Ms Mitchell would have had access to was the EFTPOS receipts at the end of the day which did not identify the goods that had been paid for. 76

[45] With respect to whether she, Ms Bradley, could know whether goods had been returned or paid for, she said that she could ring Julie who has all the listings and transactions for all of the stores. She recalled that she did not ring and find out from Julie prior to 2 April 2011 as Ms Phillips had told her that her mother had the goods and that she was deciding which ones she wanted. Ms Bradley indicated that she had telephoned Julie on 3 April 2011 to find out whether the goods had been paid for. 77 With respect to the pink blanket, Ms Bradley said that she had been through the accounts with Julie and that, on 18 March 2011, there was no transaction for a kids line pink blanket. She stated that she had seen Ms Phillips’ receipt for the first time on the day of the hearing. It was stated that it was possible that the receipt was for the pink blanket.78

[46] Ms Bradley agreed that Ms Mitchell had also told her about Ms Phillips bringing her children to work and that they were disruptive. She could not remember the date but said that it would have been during the time that she was away. 79 It was her view that Ms Mitchell was not an assertive person but that Ms Phillips was. She recalled that Ms Mitchell did not actually use the word “stole” but had told her that Ms Phillips had put the goods into a bag and taken them home. However, she really did not remember as this had all happened back in April.80

[47] It was Ms Bradley’s evidence that, prior to 2 April 2011, she did not telephone Ms Phillips and indicate that she needed to have a serious talk with her on 2 April 2011 about some toys that she had been seen to have taken on 18 March 2011 and that she may wish to bring a friend with her. This was because she would rather have a face-to-face discussion with a person about such an issue and, as well, Ms Phillips would have worried about it for two days. It was her view that, having a face-to-face discussion, was the decent thing to do. She did not think that what Mr Smith was proposing was fair and reasonable. 81 Ms Bradley also indicated that she did not give Ms Phillips any warning that she was stealing and that, if she had given her a warning that she was going to talk to her about it, she could have made up all sorts of things.82

[48] It was Ms Bradley’s recollection that she thought that she had told Ms Phillips the date that the alleged theft had occurred. She said she would be surprised if Ms Phillips’ evidence was that the first time she knew the date of the alleged theft was at the conciliation conference. This was because Ms Phillips was well aware on the day that Ms Bradley told her that the date of the alleged theft was 18 March 2011. It was later stated that she was 100% sure that Ms Phillips knew what the date was. 83

[49] In terms of showing Ms Phillips the CCTV video, Ms Bradley stated that she did not show her it to her on 2 April 2011 and that Ms Phillips had not asked to see it. It was said that Ms Phillips had every opportunity to ask to see the footage as she was in the store a good half-hour before she left and the store had not been opened. Ms Bradley indicated that she had not offered to show Ms Phillips the diary either. 84

[50] Ms Bradley gave evidence that, during March and April 2011, she could not say that she worked all weekends but she did work on the odd Saturday and Sunday even though in her statement she said that she worked at least two of four weekends. It was recalled that, from the time she opened the store, she was pretty much their seven days a week. Maybe in the last two or three months prior to April 2011, she was starting to get a little bit of respite. She indicated that two or three of the weeks during this period, she was away. It was agreed that it was possible that she only worked one Sunday in the month of March 2011. Ms Bradley confirmed that she was only rostered on for one Saturday for the whole of April 2011. 85

[51] It was Ms Bradley’s evidence that, if Ms Phillips worked a Sunday and was rostered on with Ms Mitchell, it was Ms Mitchell who had the key and she would not arrive at work any earlier than 10 minutes before opening time. Further, it was stated that there was no reason for anyone to stay behind after the shop was shut because all of the staff just wanted to get out at 5:30pm. In addition, she said that the staff did not have to work through their lunch except maybe on a Saturday or Sunday, if there were only two staff and they were very busy. 86 Ms Bradley confirmed that Ms Phillips and also herself, have done deliveries on their way home and that they both had been paid by the customer. To her knowledge, Ms Phillips had probably done three such deliveries. It was explained that it was not company policy but was something that Ms Phillips was able to do because she could get a little bit of extra money for it. It was said that Ms Phillips was never asked to do deliveries after hours.87

[52] With respect to bringing children to work, Ms Bradley explained that there was no company policy about this but that she had spoken to Ms Phillips about this issue previously. It was recalled that she had told Ms Phillips that if she needed to take the children home because they were sick, she was to call Ms Bradley and she or somebody else would come in and take over her shift. She said that is certainly not why she asked Ms Phillips to leave. 88

SUBMISSIONS

Applicant

[53] On behalf of Ms Phillips, it was contended by Mr Smith that the Tribunal is entitled to take from the fact that Ms Mitchell was not called to give evidence the implication that, had she been called, she would not have supported the respondent’s position. 89

[54] Secondly, with respect to Ms Bradley’s evidence, it was argued that she is not a dishonest person and so he was not attacking her honesty. However, it was submitted that her memory of what happened is far from certain. Therefore, if there is a conflict in the evidence between that of Ms Bradley and that of Ms Phillips, Ms Phillips’ evidence should be preferred to that of Ms Bradley. 90

Small Business Fair Dismissal Code

[55] With respect to whether the respondent has complied with the Small Business Fair Dismissal Code (the Code), Mr Smith contended that the first limb is that the employer must have reasonable grounds for believing that the employee’s conduct is sufficiently serious to justify immediate dismissal. 91 It was stated that it was not sufficient for Ms Bradley, in her own mind, to have believed that the items were stolen.92 Rather, to have reasonable grounds, the respondent would, at the date of dismissal, need to have some evidence that goods were missing from the shop and that there was no record of them being paid for. Also, as Ms Phillips had an unblemished work record, the employer would need to consider all of the circumstances of the alleged theft. It was said that, at the date of dismissal, Ms Bradley relied on what she was told by Ms Mitchell and what she saw in the CCTV video recording.93

[56] Further, it was submitted that the applicant should have been given enough information and sufficient opportunity to properly respond to the allegations. This was said to be particularly so when, in this case, the facts the employer relied on are in question or are capable of some other explanation. However, Ms Bradley did not show Ms Phillips the CCTV video recording nor advise her of the date of the alleged theft or identify, except for the pink blanket, what was allegedly stolen. Ms Phillips was also not given a reasonable opportunity to respond. 94 Ms Bradley’s evidence, that she did not think it was fair and reasonable to have given Ms Phillips some notice of the discussion she was going to have with her on 2 April 2011, was highlighted in this regard.95

[57] It was stated that there were a number of alternative explanations for what occurred. Mr Smith stated that Ms Phillips acknowledges that, during the last three or four weeks prior to her dismissal, she took some goods home for her mother to check. 96 In her written statement, Ms Phillips indicated that the respondent has all the receipts and evidence of that.97 Further, Ms Phillips was confused about what was being discussed on 2 April 2011. She thought that it was the pink blanket but she was not sure and she was not sure which date it was.98 It was argued that the only specific goods that Ms Phillips was accused of stealing was the pink blanket. The evidence shows that Ms Phillips made a note in the diary on the day of taking the pink blanket and paid for the pink blanket on 25 March 2011 which was 8 days before she was dismissed.99

[58] In terms of a complaint to the police, Mr Smith submitted that the complaint must be made within a reasonable time of the alleged theft and follow directly from the alleged theft. In addition, it was argued that the employer must have reasonable grounds for making the report to police and that, in this case, there were not reasonable grounds. 100

Dismissal was harsh, unjust or unreasonable

[59] As Ms Phillips was summarily dismissed in a way that was not consistent with the Code, it was necessary for the Tribunal to determine whether Ms Phillips’ dismissal was harsh, unjust or unreasonable. This was said to be a much harder test than the tests for compliance with the code. 101

[60] With respect to whether there was a valid reason for the dismissal, it was argued that there was not sufficient evidence to show that Ms Phillips had, in fact, even on the balance of probabilities, stolen goods on that particular date. Therefore, there was no valid reason for the dismissal. 102

[61] It was stated that, while Ms Phillips was notified on 2 April 2011 of the reasons for her dismissal, those reasons were erroneous and not such as to enable Ms Phillips to understand why she was dismissed. Therefore, Ms Phillips could not respond to them and was not given such an opportunity. 103

[62] Mr Smith also submitted that there was no direct refusal to allow Ms Phillips to have a support person present to assist her at discussions relating to her dismissal. However, the conduct of Ms Bradley effectively precluded her from having a support person present. Further, there was no notice given to Ms Phillips of the meeting nor of the serious allegations of theft that were to be put to her. 104

[63] It was submitted that the respondent is a small business and that the size of the enterprise and the lack of dedicated human resource management specialists had an impact on the procedures followed in effecting the dismissal. However, it was argued that, even making allowances for this, the manner in which the dismissal was affected left much to be desired. 105

[64] Mr Smith contended that, in all of the circumstances of this case, the fact that the respondent is a small business is not sufficient to outweigh the lack of a valid reason and the failure to afford procedural fairness to Ms Phillips. 106

Remedy

[65] Ms Phillips was said to not be seeking the remedy of reinstatement. 107

[66] With respect to compensation, Mr Smith submitted the following:

Ms Phillips’ average gross weekly wage was $595.60

Ms Phillips had been employed with the respondent for about 18/19 months.

There is no evidence concerning the impact of an order on the viability of the business.

Ms Phillips would have continued in her employment if it was not for the incident on 2 April 2011.

The primary amount of compensation for six months would be $15,485.60. Earnings to date (as at 4 November 2011) were approximately $4,109.00. Therefore, the primary compensable amount to the date of hearing would be approximately $11, 376.60 (subject to tax).

Ms Phillips is also seeking one week’s pay in lieu of notice ($595.60).

Centrelink payments between the dismissal and the making of the order for compensation are not counted as remuneration earned. 108

Respondent

Compliance with the Code

[67] With respect to the police report, Mr Tunn referred to Ms Bradley’s evidence that it was discussed with the owner of the business later on 2 April 2011 or the day after. It was said that it was left up to Ms Bradley to decide what to do in relation to reporting it to the police. She had subsequently decided to report the matter on 6 May 2011 but, after having spoken to the police officer, she decided not to proceed any further. 109

[68] It was submitted that the respondent had reasonable grounds, based on the evidence available at the time, on which to form the view that Ms Phillips’ conduct was of such seriousness as to justify summary dismissal. Mr Tunn referred to Ms Bradley’s evidence that, on 2 April 2011, when she raised the issue of the toys, Ms Phillips had said that they were at home and that she had taken them home so that her mother could sort out the ones that she wanted. Ms Bradley’s response was said to be that, if you remove items from the store without paying for them, that is theft. The Tribunal was reminded that Ms Bradley said this after having looked at the CCTV footage and after having spoken to Ms Mitchell. 110

[69] With respect to Ms Mitchell, the respondent indicated that her statement had not been tendered and that no conclusion should be drawn from her not being available for cross examination. This was because it was not his intention to use her evidence. 111

[70] It was stated that, during Ms Phillips’ oral evidence, she raised for the first time that the toys were part of a delivery. It was stated that it was now not being said that the goods were not taken but that they were taken to be delivered. However, it was highlighted that, in neither of her written statements, is there any reference to a delivery. No weight was therefore to be placed on Ms Phillips’ evidence. 112

[71] Mr Tunn recounted that Ms Phillips had been observed by a co-worker putting the items into a bag and removing them from the store. She was confronted on 2 April 2011 with accusations of theft and was there for about half an hour in the shop. It was stated that it was not just the pink blanket but also a bag of sassy toys that she believed she could take on trial. The respondent argued that a small business could not have employees just removing things to see whether they were suitable to their mother. 113

[72] Further, it was argued that Ms Phillips’ having brought her children into the shop had nothing to do with the reason for her dismissal. The sole reason for her dismissal was said to be Ms Bradley’s belief that Ms Phillips had stolen from her employer. 114

[73] It was submitted that there has been compliance with the Small Business Fair Dismissal Code by virtue of the report having been made to the police. The belief upon which the report was made was said to be a reasonable one formed on the basis of the evidence then available to Ms Bradley. 115

The dismissal was not harsh, unjust or unreasonable

[74] The respondent argued that Ms Phillips’ dismissal was not harsh, unjust or unreasonable, taking into account the relevant matters. With respect to the issue of a support person, it was submitted that there is no obligation on the employer to ask the employee if they would like a support person present. 116

[75] In terms of valid reason, it was submitted that the Tribunal could reach the conclusion that, if after the passage of a certain amount of time, no effort had been made to either bring back some or all of the goods or to pay for some or all of them, then that amounted to theft. 117

[76] It was argued that Ms Phillips was given an opportunity to respond on 2 April 2011. 118

Remedy

[77] Mr Smith’s calculations were accepted in the mathematical sense. However, as the applicant had only been employed for about 18 months and she has been able to obtain alternative employment, this is not a situation where anywhere near the maximum amount of compensation would be appropriate. 119

LEGISLATVE FRAMEWORK

[78] Section 396 of the Act sets out a number of matters that must be decided before the merits of the application are considered. They are:

“396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(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.”

[79] It was not disputed that the application was made within the relevant time, that Ms Phillips is protected from unfair dismissal and that the dismissal was not a case of genuine redundancy. Therefore, I am satisfied that the requirements of section 396(a), (b) and (d) have been met.

[80] It was not disputed that the respondent is a small business. Therefore, it remains to be determined as to whether the dismissal was consistent with the Small Business Fair Dismissal Code.

[81] The Small Business Fair Dismissal Code (the Code) provides as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[82] It was common ground that Ms Phillips was summarily dismissed. She was not given notice of termination or payment in lieu of notice.

Considerations

Conduct sufficiently serious to justify immediate dismissal

[83] The question to be determined is whether the employer had reasonable grounds for believing that Ms Phillips’ conduct was sufficiently serious to justify immediate dismissal.

[84] It appears from the material before me, that Ms Phillips was dismissed by her employer for the theft of certain goods (a bag of toys and a pink blanket) on 18 March 2011. This was on the basis that it was Ms Bradley’s understanding that, as at 2 April 2011, the goods had neither been returned to the store or paid for by Ms Phillips.

[85] The Code provides that it is fair to dismiss an employee without notice when the employer believes on reasonable grounds that the conduct of the employee is sufficient to justify the dismissal. The requisite test as to whether summary dismissal is in accordance with the Code is, not if the conduct occurred but whether the employer believes, on reasonable grounds, that the conduct occurred.

[86] It was Ms Bradley, the Store Manager, who formed the belief that Ms Phillips had stolen certain goods when, on 18 March 2011, she left work with a bag of toys and a pink blanket which, as of 30 March 2011, she believed had neither been paid for nor returned. Ms Bradley was not present in the store on the day in question. However, another employee, Ms Mitchell was and it was she who told Ms Bradley, on 30 March 2011, that Ms Phillips had stolen a bag of toys and a pink blanket. Ms Bradley had then watched the CCTV video of 18 March 2011. This resulted in her being absolutely satisfied that what Ms Mitchell had told her was true ie. that there had been a theft. It was also Ms Bradley’s evidence that she trusted Ms Mitchell and that she believed her when she said that Ms Phillips had taken the goods out of the store and had not returned them nor paid for them.

[87] Prior to putting the allegations of theft to Ms Phillips on 2 April 2011, Ms Bradley had viewed the CCTV video footage. It was her evidence that she had not checked, prior to 2 April 2011, as to whether Ms Phillips had paid for the goods by telephoning the accounts department. She said that she had checked the shop diary, on 30 March 2011, to confirm Ms Mitchell's statement that she had written a note in the diary on the date of 19 March 2011 about Simone and the “bag of goodies”.

[88] On 2 April 2011, it was Ms Bradley’s version of the meeting that she had confronted Ms Phillips with the alleged theft after she had walked into the store. She did not believe that it was unfair for her not to have given Ms Phillips advance notice of the meeting or of the topic to be discussed. It was also Ms Bradley’s view that, in the half an hour in the shop, Ms Phillips was given an opportunity to respond to the allegations.

[89] Ms Bradley gave confused evidence about whether or not she had told Ms Phillips the date of the alleged theft during the meeting on 2 April 2011.

[90] It was Ms Bradley’s recollection of Ms Phillips’ responses during the meeting, on 2 April 2011, that she had initially said that she had taken the bag of toys home and that they were at her Mum’s house because she wanted to choose some of them but had not done so yet. Ms Phillips had said that she did not have the receipts for them on her and so Ms Bradley gave her until the end of the day to produce them. Ms Phillips had also said that she had paid for the pink blanket. Ms Phillips had then changed her story and said that she could not have asked Ms Bradley as Ms Bradley was away on holidays. When told that Ms Mitchell had left a note in the diary about the goods but that there was not a note from her about them, Ms Phillips was recalled to have said “well, you know…”. It was Ms Bradley’s evidence that, in saying that, Ms Phillips had admitted that she had the toys at that point. From Ms Bradley’s perspective, that was then “a done deal”.

[91] For the applicant’s part, Ms Phillips denied that she had stolen any goods. When the allegations were put to her, on 2 April 2011, it was common ground that she was not shown the CCTV video footage nor Ms Mitchell’s note in the diary on 19 March 2011. Ms Phillips also contended that she was not given an opportunity to respond to the allegations. As well, she was confused about what Ms Bradley was talking about. Her evidence was that she thought that Ms Bradley was talking about a pink blanket but then she said something about a bag of toys. She stated that Ms Bradley had first asked her about what was going on with a high chair and then about a pink blanket that she (Ms Phillips) had written in the diary. Ms Bradley had then advised her that Ms Mitchell had told her that she (Ms Phillips) had stolen a bag of toys. She had no idea what Ms Bradley was talking about and thought that she was talking about the pink blanket. She had responded that it could have been part of a delivery as that was the only thing she could put it down to as she had not left work with any other bag of toys. Ms Phillips was unable to provide an explanation as to why she had not mentioned that the goods were for a delivery in either of her two written statements.

Conclusions

[92] It is not the role of the Tribunal, in determining whether the dismissal was consistent with the Code, to decide whether or not Ms Phillips stole the goods in question.

[93] Rather, as Deputy President Bartel explained it:

“The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.” 120

[94] On the basis of the material before me, I find that the employer did not have reasonable grounds on which to reach the view that Ms Phillips’ conduct was sufficiently serious to justify immediate dismissal. This is on the basis that, apart from viewing the CCTV footage, Ms Bradley did not undertake any other independent checking of Ms Mitchell’s allegations. Rather, it was Ms Bradley’s evidence that she believed and trusted Ms Mitchell. For example, prior to 2 April 2011, Ms Bradley did not check with accounts as to whether or not the goods had been paid for. This was open to Ms Bradley to do and possible as the alleged theft had taken place on 18 March 2011 and the conversation with Ms Mitchell was on 30 March 2011.

[95] As well, Ms Bradley did not show Ms Phillips the evidence that she had to support the allegation of theft eg, CCTV video. Further, she did not show Ms Phillips the note made by Ms Mitchell on the diary date of 19 March 2011 about asking Simone about “the bag of goodies”.

[96] In addition, the conversation with Ms Bradley on 2 April 2011 was most likely confusing for Ms Phillips. I accept her evidence that she was not altogether sure, at one point, as to what Ms Bradley was talking about - the pink blanket or the bag of toys.

[97] Further, Ms Phillips was not given advance notice of the meeting nor of the subject matter. One of the reasons given by Ms Bradley for not doing this was that Ms Phillips would have time to make up a story. It appears, therefore, that Ms Bradley had already decided, on the basis of what Ms Mitchell told her and after viewing the CCTV footage, that Ms Phillips had stolen the goods. Having already decided that Ms Phillips was guilty, Ms Bradley did not provide Ms Phillips with a genuine opportunity to respond to the very serious allegations.

[98] With respect to the issue of whether or not Ms Phillips was advised of the date of the alleged theft during the meeting on 2 April 2011, I have not been persuaded that Ms Phillips was told the date during that meeting. In reaching this conclusion, I am not impugning Ms Bradley’s honesty. Rather, as Mr Smith put it, Ms Bradley appeared to be uncertain and unreliable in terms of her memory. 121

Report to police

[99] Ms Bradley gave evidence that, on 6 May 2011, she made a report at the police station. However, when the officer told her that, once she puts the report “into play”, she could not retract it, Ms Bradley decided that she would not go ahead with it. 122

[100] It is not abundantly clear as to what Ms Bradley decided not to go ahead with. However, as it has been found that the employer did not have reasonable grounds for believing that Ms Phillips’ conduct was sufficiently serious to justify immediate dismissal, I am unable to therefore find that, if a report was made to the police, that the employer had reasonable grounds for doing so.

Summary

[101] For all of these reasons, therefore, I find that the employer did not have reasonable grounds on which to reach the view that Ms Phillips’ conduct was sufficiently serious to justify immediate dismissal. Accordingly, I find that the dismissal of Ms Phillips was not consistent with the Small Business fair Dismissal Code (s.396(c)).

WAS THE DISMISSAL UNFAIR

[102] Having determined that the Small Business Fair Dismissal Code was not complied with in effecting Ms Phillips’ dismissal, I am required to consider whether the dismissal was harsh, unjust or unreasonable (s.385(c) of the Act).

[103] Section 387 of the Act sets out the factors that the Tribunal is required to take into account when determining whether Ms Phillips’ dismissal was harsh, unjust or unreasonable. These 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)

[104] As set out in paragraphs 93 - 94 above, the tests regarding compliance by an employer with the Code are different to the determination of whether there was a valid reason for the dismissal.

[105] It is not necessary to outline again the evidence and submissions regarding what occurred on 18 March 2011. Having taken into account all of the material before me, I find that, on 18 March 2011, Ms Phillips took out of the store, a bag of toys and a pink blanket. In this regard, I accept Ms Bradley’s evidence that that was what she saw on the CCTV footage.

[106] With respect to the pink blanket, I am satisfied that, on 23 March 2011, Ms Phillips wrote a note in the diary to the effect that she needed to pay for the pink blanket. It was her evidence that she crossed it out in the diary once she had paid it. This was said to have been done on 25 March 2011. Ms Phillips’ bank statement reveals a payment to the employer on 25 March 2011 of $15.00. It was indicated by Ms Bradley that it was possible that this was payment for the pink blanket. In the absence of evidence to the contrary from the employer, it is accepted that Ms Phillips paid for the pink blanket on 25 March 2011.

[107] In terms of the reason Ms Phillips left the store with the bag of toys, latterly, it was Ms Phillips’ evidence that they could have been or were part of a delivery. She could not think of any other reason because she had not left work with any other bag of toys. However, this explanation was not contained in either of her two witness statements. If Ms Bradley’s evidence is accepted, the first time that the delivery explanation was proffered was during the hearing on 7 November 2011. There does not appear to be any other evidence before me that supports the contention by Ms Phillips that the bag of toys was for a delivery although it was Ms Bradley’s evidence that it was possible that there was a delivery on the day in question.

[108] On the other hand, it was Ms Bradley’s testimony that Ms Phillips had told her that the bag of toys was with her mother so that she could choose the ones that she wanted. Despite Ms Bradley’s memory on a number of issues being uncertain, I am more inclined to accept Ms Bradley’s recollection of Ms Phillips’ explanation. I also accept Ms Bradley’s evidence that, when she checked with accounts, she was advised that the toys had not been paid for.

[109] It is noted that, with the pink blanket, Ms Phillips wrote a diary note about her needing to pay for it and had then done so. There is no evidence before me that indicates that Ms Phillips followed the same process with the other goods that she took out of the store at the same time.

[110] Therefore, I find that the reason Ms Phillips took the bag of toys out of the store on 18 March 2011 was so that she could take them to her mother’s house for her to choose which ones she liked. I also find that the bag of toys had not been paid for nor returned two weeks after they had been taken out of the store.

[111] As Ms Phillips took the bag of toys out of the store on 18 March 2011 and, as at 2 April 2011, had not subsequently either returned them or paid for some or all of them, I find that there was a valid reason for Ms Phillips’ dismissal.

Notified of the reason – s.387(b)

[112] It was Ms Bradley’s recollection that she put the allegations about the theft of the bag of toys and the pink blanket to Ms Phillips.

[113] Ms Phillips’ view was that she was asked about the pink blanket and then told of Ms Mitchell’s allegation that she had stolen a bag of toys. She said that she did not know what Ms Bradley was talking about or why she was being dismissed.

[114] On the basis of the evidence before me, it is most probable that the communication from Ms Bradley to Ms Phillips was not, at all times on 2 April 2011, as clear as it could have been. However, on balance, I am satisfied that Ms Phillips was notified of the reason for her dismissal.

Opportunity to respond - s.387(c)

[115] As has been discussed in paragraph 98 above, I am not satisfied that Ms Phillips was given a proper opportunity to respond. Also, I have not been persuaded that the process followed by the company, notwithstanding that it is a small business, was procedurally fair in terms of Ms Phillips. She was not shown the CCTV video footage nor the diary - which formed the basis on which the decision to dismiss Ms Phillips for theft was made.

Support person - s.387(d)

[116] Ms Phillips did not request that she have a support person present with her for the meeting on 2 April 2011. However, as she was not advised, ahead of time, of the meeting or of its nature, there was no real opportunity for Ms Phillips to have done so.

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

[117] As Ms Phillips was dismissed due to her conduct, this section is not relevant in this case.

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

[118] It was common ground that the employer is a small business. There was no evidence of input from a dedicated human resources person during the process. Further to the finding in paragraph 115 above regarding a lack of procedural fairness, it is reasonable to conclude that the size of the business and the absence of dedicated human resources expertise did have an impact on how the dismissal of Ms Phillips was effected. However, it is my view that neither of these factors can account fully for the lack of procedural fairness. Therefore, these factors will not be taken account of to their full extent.

Any other matters - s.387(h)

[119] There does not appear to have been specific matters identified by either party under this section. However, Mr Smith made mention of the applicant’s good work record. It was common ground that the applicant was a good employee save for, from the employer’s perspective, the incident on 18 March 2011.

Conclusion

[120] In all of the circumstances of this matter and, having taken account of each of the factors in section 387 of the Act, I determine, on fine balance, that Ms Phillips’ summary dismissal was harsh.

[121] With respect to remedy, I have considered all of the requirements of section 390 and 392 of the Act. I do not consider that reinstatement is appropriate but that an Order for payment of compensation is appropriate.

[122] In all of the circumstances of this matter, I determine that Pram Warehouse Pty Ltd is to pay Ms Phillips two weeks’ notice, namely, $1131.20, taxed according to law, within 14 days of this decision.

[123] An Order 123 to this effect will be issued separately.

COMMISSIONER

Appearances:

Mr P R Smith, of Counsel for the Applicant

Mr J Tunn, Agent for the Respondent

Hearing details:

2011.
Brisbane.
November 7.

1 Exhibit A2 and Exhibit A2 and Attachment SP1

2 Exhibit A2 at paragraph 2

3 Ibid at paragraph 7 and Transcript PN 221

4 Ibid at paragraphs 2, 12 - 13 and 16 - 18 and ibid PN 100 - 101

5 Ibid PN 103 - 104

6 Ibid PN 107 and 128 - 130 and Exhibit A2 at Attachment SP1 at paragraph 6

7 Ibid PN 123 – 126 and Ibid at Attachment SP3

8 Ibid PN 141 - 143

9 Ibid PN 148

10 Ibid PN 149 - 150 and Exhibit A2 at Attachment SP1 at paragraph 7

11 Ibid PN 150

12 Ibid PN 151

13 Ibid PN 153 and 270 - 272

14 Ibid PN 153 and 329

15 Ibid PN 153 and 362 and Exhibit A2 at Attachment SP1 at paragraph 9

16 Ibid PN 153 and 284 and Ibid at paragraphs 21 - 22 and Attachment SP6

17 Ibid PN 156 and 228

18 Ibid PN 228, 254 and 326 - 328, 330 and 340 - 341

19 Ibid PN 242, 245 - 246, 267

20 Ibid PN 337 and Exhibit A2 at paragraph 19 and at Attachment SP1 at paragraph 8

21 Ibid PN 246 - 267

22 Ibid PN 153 and 284 and Exhibit A2 at paragraphs 5 and 19

23 Ibid PN 156, 284 and 298

24 Ibid PN 159 - 160 and 291 - 295, 331 and 351

25 Ibid PN 295 - 296, 307, 335 and 339 and Exhibit A2 at paragraph 20

26 Ibid PN 354 - 355

27 Ibid PN 156 and 352 - 353

28 Ibid PN 156 and Exhibit A2 at Attachment SP1 at paragraphs 10 - 15

29 Ibid PN 156 and 219

30 Ibid PN 157 - 158

31 Ibid PN 161 - 168 and 204 - 205

32 Ibid PN 190 - 194

33 Ibid PN 195 - 198

34 Ibid PN 206 - 209, 239 - 242 and 245

35 Ibid PN 243 and 360 - 361

36 Ibid PN 209 - 211

37 Ibid PN 212 - 215

38 Exhibit R2

39 Ibid at paragraph 2 and Transcript PN 460 and 508

40 Ibid PN 450 - 458

41 Ibid PN 467, 609 and 673 and Exhibit R2 at paragraph 10

42 Ibid PN 467, 609 and 551 and ibid

43 Ibid PN 467

44 Ibid PN 468 - 475

45 Ibid PN 703 - 723

46 Ibid PN 645 and 675 - 676

47 Ibid PN 722 - 723

48 Ibid PN 646 - 647

49 Ibid PN 478 and Exhibit R2 at paragraph 11

50 Ibid PN 756 - 766

51 Ibid PN 502 and Exhibit R2 at paragraph 17

52 Ibid PN 478 and 833 - 835

53 Ibid PN 478 and Exhibit R2 at paragraph 12

54 Ibid PN 478 - 479

55 Ibid PN 485 and 550 - 564 and Exhibit R2 at paragraph 10

56 Ibid PN 486 - 487 and 503

57 Ibid PN 490 - 492

58 Ibid PN 493 - 495 and Exhibit R2 at paragraph 18

59 Ibid PN 496 - 497 and ibid at paragraph 13

60 Ibid PN 500

61 Ibid PN 501 and Exhibit R2 at paragraph 10

62 Ibid PN 512 - 515

63 Ibid PN 518 - 531

64 Ibid PN 568 - 584

65 Ibid PN 586 - 590

66 Ibid PN 595 - 597

67 Ibid PN 601 - 603

68 Ibid PN 611 - 617

69 Ibid PN 618 - 625

70 Ibid PN 626 - 629

71 Ibid PN 630 - 635 and 637 - 638

72 Ibid PN 642

73 Ibid PN 643 - 644

74 Ibid PN 636

75 Ibid PN 639 - 641

76 Ibid PN 648 - 654

77 Ibid PN 658 - 671

78 Ibid PN 726 - 748

79 Ibid PN 673 - 682

80 Ibid PN 683 - 688

81 Ibid PN 690 - 699

82 Ibid PN 701

83 Ibid PN 767 - 775

84 Ibid PN 749 - 755

85 Ibid PN 779 - 795

86 Ibid PN 796 - 818

87 Ibid PN 819 - 830

88 Ibid PN 831 - 832

89 Ibid PN 889

90 Ibid PN 890 - 891

91 Ibid PN 892 and Exhibit A1 at paragraph 12

92 Ibid PN 892

93 Exhibit A1 at paragraphs 21 - 22 and 24

94 Ibid at paragraph 25

95 Transcript PN 893

96 Ibid PN 895

97 Ibid and Exhibit A1 at paragraph 30

98 Ibid PN 895 - 896

99 Exhibit A1 at paragraph 36

100 Ibid at paragraphs 18 and 20

101 Transcript PN 897 - 898

102 Ibid PN 899 and Exhibit A1 at paragraph 40

103 Exhibit A1 at paragraph 41 - 42

104 Ibid at paragraph 43

105 Ibid at paragraphs 44 - 45

106 Ibid at paragraph 46

107 Ibid at paragraph 48

108 Ibid at paragraphs 53 - 59 and Transcript PN 900

109 Ibid PN 903 - 904 and Exhibit R1 at paragraph 20

110 Ibid PN 906 - 909 and ibid at paragraph 23

111 Ibid PN 910

112 Ibid PN 911 and 918

113 Ibid PN 915 - 917

114 Ibid PN 914 and Exhibit R1 at paragraph 22

115 Ibid PN 918 - 919 and ibid at paragraph 23

116 Ibid PN 920

117 Ibid PN 921

118 Ibid PN 922

119 Ibid

120 [2010] FWA 7891 at paragraph 60

121 Transcript PN 778

122 Ibid PN 458

123 PR526166

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