Ms Susan Coughlin v Greyhound Australia Pty Ltd

[2015] FWC 2631

[2015] FWC 2631

FAIR WORK COMMISSION

DECISION

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

Ms Susan Coughlin
v
Greyhound Australia Pty Ltd
(U2014/11994)

COMMISSIONER CLOGHAN PERTH, 31 JULY 2015

Application for relief from unfair dismissal.

[1] This is an application by Ms Susan Coughlin (Ms Coughlin or Applicant) seeking a remedy for alleged unfair dismissal from her former employer, Greyhound Australia Pty Ltd (Greyhound or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing, Ms Coughlin was represented by Mr Glenn Ferguson, Senior Projects Officer, Transport Workers’ Union of Australia, Western Australia Branch (TWU). Ms Coughlin gave evidence on behalf of her application.

[4] Greyhound, with the leave of the Commission ([2015] FWC 2105), was represented by Ms Libby Mussared of Herbert Smith Freehills. Mr P Lewis, Ms S Field and Ms S Guild gave evidence on behalf of the Employer. The following written witness statements were admitted into evidence without the necessity of cross-examination:

• Mr M Teesdale;



• Mr D Taggart;



• Mr D Tulp; and



• Ms D Macdonald (who will be referred to as Ms Dawson).

[5] Mr D Millman’s written interview statement was also admitted into evidence without the necessity of cross-examination.

[6] This is my decision and reasons for decision on Ms Coughlin’s application.

RELEVANT BACKGROUND

[7] Greyhound has a contract with Bechtel Oil and Gas Chemicals (Bechtel) for the provision of bus services on the Wheatstone LNG Project (Wheatstone Project).

[8] Bechtel is the Wheatstone Project Engineering, Procurement, Construction and Management provider. Put shortly, Bechtel is the head contractor and is responsible for the management of other contractors on the Wheatstone Project.

[9] The Wheatstone Project is located 12 kilometres west of Onslow. Onslow is 1,392 kilometres north of Perth in Western Australia.

[10] Greyhound provides transportation services for approximately 3,500 construction workers on the Wheatstone Project.

[11] Ms Coughlin commenced employment on 11 October 2013.

[12] Ms Coughlin’s letter of appointment as a bus driver states that, while working for the Employer, she is required to comply with all company policies and procedures. The Employer’s Code of Conduct which sets out the standard of behaviour expected of Greyhound employees was highlighted in Ms Coughlin’s letter of appointment. Ms Coughlin was required to familiarise herself with the Employer’s policies and procedures and invited her, if she had any problems complying with the policies and procedures, to speak to her manager.

[13] The Employer’s policies and procedures relevant to this application are the Code of Conduct; EEO and Inappropriate Behaviours and The Team Member and Behavioural Explanation.

[14] Ms Coughlin’s husband also worked as a bus driver on the Wheatstone Project. Mr Coughlin was present during an incident on 8 July 2014 which led eventually to his and the Applicant’s dismissal.

[15] On 8 July 2014, both Ms Coughlin and Mr Coughlin were in the Bus Coordination Room (crib room). An incident occurred. On 28 July 2014, correspondence was forwarded to Ms Coughlin headed “confirmation of investigation into alleged serious misconduct”. The allegations are as follows:

“1. between 5:00am and 5:30am in the crib room, you attempted to conduct a breathalyser self-test without a manager or supervisor present;

2. when politely reminded by Diane Dawson of Greyhound’s requirement that a manager or supervisor be present for breathalyser tests, you responded with words to the effect of “why don’t you mind your own business” in an aggressive manner;

3. when informed by Peter Lewis about the inappropriate nature of your response to Ms Dawson and your attempted self-test, you again responded with words to the effect of “why don’t you mind your own fucking business” in an aggressive manner; and

4. after Dennis Coughlin began verbally and physically confronting Mr Lewis in an aggressive manner, you encouraged Mr Coughlin’s inappropriate behaviour by saying words to the effect of “go on, tell him, get up him”, thereby inflaming a situation you initiated.” 1

[16] Prior to the correspondence of 28 July 2014, Ms Field, Mr Tulp and Ms Coughlin met on site. At the meeting, Ms Coughlin was informed that “an allegation had been made against her that she had verbally attacked and acted aggressively towards another driver in the Bus Coordination Room on 8 July 2014”. 2 Having been informed of the allegation, Ms Coughlin was also advised that she was not required to provide a response immediately but that there would be an investigation, be demobilised from site and a further meeting held with her.

[17] Ms Coughlin was demobilised from the Wheatstone Project for the duration of the Employer’s investigation.

[18] Ms Coughlin responded to the Employer’s correspondence of 28 July 2014, on the same day (28 July 2014). Ms Coughlin advised that she had received the correspondence and strongly disagreed with the allegations and seeking a “face to face” meeting.

[19] On 30 July 2014, Ms Coughlin had a “face to face” meeting with Mr Tulp and Ms Field by telephone.

[20] Later on the same day, Ms Field, pursuant to a separate investigation concerning Mr Coughlin’s role in the incident, interviewed him by telephone in the presence of Mr Tulp.

[21] In parallel to discussions with Ms Coughlin and Mr Coughlin, the Employer also interviewed:

• Ms Dawson;



• Mr Connelly;



• Mr Cooper;



• Mr Robertson;



• Mr Smith;



• Mr Lewis; and



• Ms Stacy.

[22] Following completion of the investigation, Ms Field came to the conclusion that “Ms Coughlin had incited the incident between her husband and Mr Lewis and has encouraged him to act in the manner he did”. 3 Ms Field discussed her “findings” with Ms Guild.4

[23] Ms Guild considered all of the material from the investigation and had discussions with Ms Field, Mr Tulp and Ms Henningsen. Following this discussion, a decision was made, in conjunction with the Chief Executive Officer, to terminate Ms Coughlin’s employment.

[24] On 7 August 2014, the Employer communicated to Ms Coughlin the outcome of the investigation as follows:

“The investigation has resulted in the Allegations being substantiated. The weight of evidence simply does not support your denials that you did not swear, did not behave aggressively or in a confrontational manner, and that you did not subsequently seek to inflame the situation between Dennis Coughlin and Peter Lewis through your conduct”. 5

[25] Further, “as a result of the findings of the investigation...you are required to show cause...why your employment should not be terminated”. 6

[26] On 12 August 2014, the Applicant provided a response to the “show cause” letter.

[27] On 14 August 2014, Ms Coughlin was notified of her termination of employment. The relevant part reads:

“We have considered and taken into account the matters you raised at the [show cause] meeting (on 12 August 2014).

In all the circumstances, we consider that the findings of the investigation warrant the termination of your employment.” 7.

RELEVANT LEGISLATIVE FRAMEWORK

[28] There is no dispute between the parties that Ms Coughlin has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.

[29] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”

[30] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in s.387 of the FW Act and is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[31] Ms Coughlin’s dismissal related to one incident on 8 July 2014.

[32] The four main actors in the incident on 8 July 2014, are the Applicant, her husband, Mr Lewis and Ms Dawson.

[33] I intend to focus on their evidence as to whether the Employer harshly, unjustly or unreasonably dismissed the Applicant.

CONSIDERATION

[34] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[35] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[36] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[37] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 8.

Applicant attempted to conduct a breathalyser self-test without a manager or supervisor present

[38] There is no dispute that Ms Coughlin, when she entered the crib room, went to the breath testing unit. Ms Dawson’s evidence is that “there were 3-4 [drivers] over near the machine testing without a supervisor” 9.

[39] Neither Ms Dawson nor Mr Lewis state that Ms Coughlin was attempting to “self-test” in their statements given on 26 and 24 July 2014 respectively.

[40] Ms Coughlin, when interviewed on 30 July 2014, stated that she witnessed her husband self-test but did not self-test herself. The incident which subsequently led to Ms Coughlin’s dismissal, occurred before she could self-test.

[41] There is no evidence to conclude that Ms Coughlin attempted to conduct a self-test without a supervisor being present, except that she approached the breathalyser with 3-4 other drivers. Ms Coughlin may have intended to self-test but I have no evidence to say that she attempted to self-test as set out in the Employer’s allegations of 28 July 2014.

[42] Ms Field’s written evidence is that there was some dispute among those present in the crib room as to whether Ms Coughlin had actually used the breathalyser. I understand Ms Field’s evidence that she considered that this difference among those present, was irrelevant 10. If it was “irrelevant”, I fail to see why the allegation was made against Ms Coughlin that she attempted to conduct a breathalyser self-test without a manager or supervisor present. Alternatively, Ms Field’s evidence may have been that, even though there were differing views on whether Ms Coughlin attempted to self-test, this was irrelevant for the purposes of her finding.

When reminded that a manager or supervisor needed to be present for breathalyser testing, the Applicant responded, “why don’t you mind your own business” in an aggressive manner

[43] The Applicant gave evidence that she heard the words, “oi, you can’t do that without a supervisor present”, and responded with the words “why don’t you mid your own business”.

[44] Both Ms Dawson and Mr Lewis gave evidence that Ms Coughlin’s response was aggressive 11. Ms Coughlin’s evidence was simple – she uttered the words as alleged.

[45] I am comfortable to conclude that the nature of the words “why don’t you mind your own business”, can be forceful and self-assertive and be received by the other person as aggressive. In reaching such a conclusion, there is no evidence to conclude that it was aggressive in any physical sense.

[46] Shortly stated, Ms Coughlin’s “mind your own business” retort was an unsubtle insult to bring another person’s assertion, to a quick end. It did not, and I now move to the next stage of the incident and allegation.

When questioned by Peter Lewis regarding the inappropriate nature of Ms Coughlin’s response, Ms Coughlin further responded with the words “why don’t you mind your own fucking business”

[47] Ms Coughlin denies that she told Mr Lewis to “mind his own fucking business”.

[48] Ms Dawson states that Ms Coughlin “told Peter [Mr Lewis] to mind his own business” 12.

[49] Mr Lewis’ evidence is that he was told to “mind his own fucking business” 13 by Ms Coughlin.

[50] As part of the Employer’s investigation, there is a statement from Mr Cooper who indicates that Ms Coughlin said to Mr Lewis, “why don’t you mind your own fucking business” 14. Mr Robertson states it was Ms Coughlin who said the words to Mr Lewis, but also, the same or similar words, were stated by Mr Coughlin to Mr Lewis.

[51] Mr Smith’s statement as part of the investigation reveals that he heard Ms Coughlin say to Mr Lewis, “mind you own business” without the use of the word “fucking” 15.

[52] Ms Stacy’s evidence is that Ms Coughlin incorporated the word “fucking” in her retort to Mr Lewis 16.

[53] Finally, in the investigation, Mr Millman’s statement is that Ms Coughlin’s response was “It’s not of your business” which presumably should have been transcribed as “it’s none of your business 17.

[54] Clearly, there is a contest regarding whether Ms Coughlin made the statement, “why don’t you mind your own fucking business”.

[55] For reasons which will be set out later, it is not essential that I come to a conclusive finding on this particular allegation.

Following a confrontation between Mr Coughlin and Mr Lewis , Ms Coughlin behaved inappropriately by saying words to the effect of “go on, tell him, get up him”, thereby inflaming the situation

[56] Firstly, if the Employer is relying on the words of Mr Lewis regarding the allegation, Mr Lewis states “I could hear Sue [Ms Coughlin] saying, ‘go on, go on, tell him’.” Mr Lewis does not state, as part of the investigation, that Ms Coughlin was “inflaming the situation”.

[57] Ms Dawson, as part of her statement, does not refer to any specific “inflaming” words used by Ms Coughlin but described the behaviour of both Mr and Ms Coughlin as unnecessary and aggressive 18.

[58] Mr Cooper’s statement put the view that Ms Coughlin definitely “started the situation”, although it is unclear whether the Applicant continued to “fuel” the incident.

[59] There is no mention in Mr Robertson’s statement of Ms Coughlin saying the alleged words or inflaming the situation 19. A similar situation exists in the statement of Mr Smith20.

[60] In contrast, Ms Stacy’s statement is that Ms Coughlin was “egging on” her husband saying, “go tell him, get up him” 21.

[61] Again, clearly there is a contest regarding what was said by Ms Coughlin. Mr Lewis did not elaborate upon Ms Coughlin, words “go on, go on, tell him”, in either his witness statement, or oral evidence, except to say that Ms Coughlin was “egging her husband on” 22.

[62] Ms Coughlin stated, as part of the investigation, that she did not “incite” her husband in the incident with Mr Lewis 23.

[63] I am satisfied, on the evidence, that there was a “rift” between some of the drivers on the Wheatstone Project. Some of the drivers were divided into what can be loosely described as the “Greyhound employees camp” and the “Chandler McLeod employees camp”.

[64] While this situation gives context, as does the correct procedure for alcohol testing, it does not go to the core of what the Commission has to determine and that is whether the Employer had a “sound, defensible or well founded reason” to dismiss Ms Coughlin.

[65] Workplace “incidents” occur every day in Australia.

[66] This incident was over in approximately three (3) to four (4) minutes.

[67] I am satisfied, on the totality of the evidence, that there was a heated argument between Mr Coughlin and Mr Lewis. Who started the incident is not relevant. However, the incident appears to have been short, sharp and brutish. The two main protagonists, Mr Coughlin and Mr Lewis’ exchange views in a fairly robust way. Simply put, it was a heated argument.

[68] Whether Mr Coughlin was defending his wife or Mr Lewis was defending Ms Dawson, both Mr Coughlin and Mr Lewis stood their ground.

[69] In view of the situation, I am satisfied, on the balance of probabilities, that Ms Coughlin did swear at Mr Lewis on the one occasion. However, on the evidence, I feel it would be unsafe to conclude that she inflamed the situation. I suspect Ms Coughlin was not a mute bystander. Zsa Zsa Gabor once said, “husbands are like fires – they go out when unattended”. In the circumstances, I am inclined to the view that Mr Coughlin was sufficiently inflamed and he did not need the wife’s attention, to keep his heated argument with Mr Lewis going.

[70] Clearly, the Employer was faced with differing accounts of the incident. These differing views spilled over into the hearing. For example, the Employer states in its Statement of Facts that, “Mr Lewis stated that the incident had started when Mr Lewis stepped in to support a fellow colleague (Dianne Dawson) after she advised Mr and Ms Coughlin that they were not following the correct breath testing procedure…” 24. In my view, this is the correct interpretation of what happened at the incident. However, Ms Field’s evidence, as the investigator, was that she formed the view that “Ms Coughlin had started the incident”25 (my emphasis).

[71] Like Ms Field, the Commission was not present in the crib room. To be candid, the only sensible people in the crib room were those drivers who brought the incident to an end. Irrespective of the differences in evidence provided to the Commission, I have to find whether Ms Coughlin’s conduct was sufficient to justify her dismissal.

[72] Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract of employment 26. I am satisfied that Ms Coughlin’s conduct, while unsatisfactory and probably uncalled for, was not sufficiently serious to warrant dismissal.

[73] In my view, consistent with Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the Employer’s response was harsh because it was disproportionate to the gravity of Ms Coughlin’s conduct.

[74] In my view, Ms Coughlin’s conduct, on balance, was not consistent with the Employer’s various policies. However, while her behaviour was, on balance, inconsistent with the policies, I am certain it was not, of itself, sufficient to warrant the maximum sanction – dismissal. In reaching this determination, Ms Coughlin should not think that the Employer was wrong to investigate the matter – it was not.

[75] It is difficult to conclude that an employee telling another employee to “mind their own fucking business” is respectful or not insulting. However, the Wheatstone Project Information Handbook takes, in my view, a reasonable and practicable view when it states, “Proven repeated and/or multiple violations may constitute misconduct…” 27 This view relates to acceptable employee behaviour in the community. Mr Ferguson submits that the incident took place “not in the local community, nor was it the local catholic girl’s picnic – it was in a crib room – in the North West of Western Australia”28.

[76] The use of the word “fucking” by one employee to another in the workplace (or elsewhere) may be unpleasant and unwelcome, however, as Mr Ferguson states, it is unfortunately common language in workplaces. While not condoning the use of the word “fucking” in the workplace, in accordance with Selvachandran, the legislative provisions must be applied in a practical common sense way to ensure that employer and employees are treated fairly.

[77] The Employer states that, “it made the only decision [dismissal] open to it”. I disagree.

[78] The Employer asserts that dismissal was the only option available due to the disharmony between Greyhound and Chandler Macleod drivers. Should Ms Coughlin have returned to the workplace, there was the potential for a similar occurrence to happen in the future. Firstly, there is no basis for such an assertion. In fact, the Employer conceded that Ms Coughlin did not have any previous disciplinary actions on her file. Secondly, this appears a case of an employer dealing with workplace disharmony, by making an example of one of it’s drivers Ms Coughlin. Such an approach invites an accusation of a disproportionate and unfair sanction – which was squarely put by Mr Ferguson.

[79] Mr Coughlin’s employment was terminated as a result of his conduct in the incident and the Employer refers to consistency of treatment in Australia Post 29. I was not provided with all the details of the investigation and disciplinary action relating to Mr Coughlin’s dismissal. On the material I was provided with, there are significant differences of conduct between Mr Coughlin and Ms Coughlin. Comparability submissions must have a basis in comparison, and not a case of “apples and oranges”. It is notable that Mr Lewis was not dismissed for his part in the incident. I make no judgement, nor should I, in relation to the Employer’s assessment of Mr Lewis’ conduct. However, the Employer could have made a comparison between Mr Lewis and Ms Coughlin, rather than between Mr and Ms Coughlin.

[80] Shortly put, it would be unfair, unreasonable and unjust for the “sins” of Mr Coughlin to be visited upon his wife. Ms Coughlin must and had to be treated as an employee in her own right and not as the wife of another employee. On the evidence, I am not satisfied that the Employer had a valid reason to terminate the employment of Ms Coughlin.

s.387(b)–(h)

[81] The parties agree that Ms Coughlin was afforded procedural fairness in the investigation which led to the Applicant’s dismissal 30. Further, there are no matters which the Commission considers relevant and should be taken into account, that have not been considered above.

CONCLUSION

[82] For the reasons set out above, I find that the Applicant was unfairly dismissed from her employment pursuant to s.385(b) of the FW Act.

[83] I now turn to the appropriate remedy for Ms Coughlin’s unfair dismissal.

REMEDY

[84] Section 390 of the FW Act provides as follows:

“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[85] Section 392 of the FW Act provides for compensation as follows:

“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.

Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

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

(a) the total amount of remuneration:

(i) received by the person; or
(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[86] I do not intend to consider remedy until the parties have had the opportunity to provide any evidence and make submissions to the Commission on the matter. However, this does not prevent the parties in reaching agreement on an appropriate remedy without determination by the Commission. Such an agreed remedy should be reached within fourteen (14) days of the date of this Decision.

[87] My Associate will contact the parties and advise of a directions conference if the parties have not reached an agreement on remedy within 14 days of this Decision.

COMMISSIONER

Appearances:

G Ferguson, of the TWU, on behalf of the Applicant.

L Mussared of counsel, on behalf of the Employer.

Hearing details:

2015:

Perth,

14 April.

 1   Exhibit R4 (8)

 2   Exhibit R12 (30)(a)

 3   Exhibit R12 (55)

 4   Exhibit R12 (55)

 5   Exhibit R4 (12)

 6   Exhibit R4 (12)

 7   Exhibit R4 (14)

 8   Brink v TWU PR922612 at paragraph [7]

 9   Exhibit R4 (111)

 10   Exhibit R10 (9)

 11   Exhibit R4 (111) and (116)

 12   Exhibit R4 (111)

 13   Exhibit R4 (116)

 14   Exhibit R4 (113)

 15   Exhibit R4 (115)

 16   Exhibit R4 (117)

 17   Exhibit R11

 18   Exhibit R4 (111)

 19   Exhibit R4 (114)

 20   Exhibit R4 (115)

 21   Exhibit R4 (117)

 22   Transcript PN472

 23   Exhibit R4 (127)

 24   Exhibit R2 (15)

 25   Exhibit R10 (27)

 26   North v Television Corporation Ltd (1976) 11 ALR 599

 27   Exhibit R4 (4)

 28   Exhibit A1 (14)

 29   BC & D v Australia Postal Corporation T/A Australia Post (2013) 238 IR para [35]

 30   Exhibit A3 (9)

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