Richard Birch v Allied Color & Additives Pty Ltd T/A Allied Color & Additives

[2013] FWC 7890

[2013] FWC 7890 Note: An appeal pursuant to s.604 (C2013/6595) was lodged against this decision - refer to Full Bench decision dated 23 December 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Birch
v
Allied Color & Additives Pty Ltd T/A Allied Color & Additives
(U2013/8460)

COMMISSIONER WILSON MELBOURNE, 9 OCTOBER 2013

Application for relief from unfair dismissal.

[1] Richard Birch left his employment as a Process Technician with Allied Color and Additives Pty Ltd on 28 March 2013. Mr Birch had been employed by the company since either 15 or 16 January 1993. His evidence includes that he had performed work for the company prior to that date, but not as an employee, in the period from 1 July 1991 to January 1993. At the time he left employment he was 62 years of age.

[2] The factual dispute between the parties includes whether Mr Birch resigned his employment or whether he was dismissed.

[3] Allied Color and Additives is a small manufacturer of colour and additive materials for the plastics industry. It is based in Mitcham, Melbourne, where it has about 28 employees, with a branch in New Zealand where it has about six employees.

[4] Mr Birch’s employment at the time he left employment was as a Process Technician in the quality control function. He had been in this role since November 2009. Before that time he had been employed as a process controller with different duties in a different part of the business. At the time he left employment he was paid an annual salary of $54,590 1.

[5] As a Process Technician, Mr Birch’s duties included supporting “the QC function to ensure all jobs produced are tested in a timely and best practice manner”. 2

[6] In March 2013, the operations manager William Miller, complained to Tony Sewell, Managing Director, about Mr Birch in an email. The complaint referred to a batch of product prepared for a new customer and included that the quality control process, supervised by Mr Birch, had taken far too long, taking three days, and that in any event when quality-control released the batch colour it was not correct.  3

[7] Customer H had recently been acquired as a customer by Allied Color and Additives through the efforts of Mr Sewell, whose evidence included that customer H had moved its business partly because it was dissatisfied with the technical abilities of its previous supplier. Customers have high expectations about their product including very accurate colour matching.

[8] Mr Sewell was concerned about the complaint, since it had the potential to harm the relationship he was developing with customer H. He asked Mr Rogers, the company’s Technical Manager, to provide an assessment of the situation 4.

[9] Mr Rogers received his own complaint about the matter on or around 19 March 2013 through the company’s quality assurance system. The complaint indicates that “92.3 kg delivered: need to be picked up and reworked” 5. The company’s internal investigations found this had occurred because of a quality control error. The report reviewed the “plaque” produced by quality-control and found that both the thickness and colour of the plaque was incorrect. It found: “[a]gain a QC judgement error – we should have scrapped the contaminated material”.6

[10] Mr Rogers provided his assessment of the complaint to Mr Sewell, who responded to Mr Rogers as follows;

“… Based on your frank assessment of the problem, has appropriate counselling of the offending party taken place? Is this matter serious enough for a written warning?” 7

[11] Mr Birch contends the errors were small and that they were not intentional and that they were not out of character for any person within the lab department to make. 8

[12] Mr Sewell’s evidence is that “what finally brought the unsatisfactory performance of Birch to a head was his poor and untimely decision making in connection with a specific customer known as [customer H]”. 9 He subsequently formed the opinion that Mr Birch “lacks the necessary expertise and genuine ability to learn from experience and training to carry out the role he was employed to perform and that is prescribed in his Job Description”.10

[13] On Tuesday 26 March 2013, Mr Birch was invited through an email to a meeting on Thursday 28 March which would comprise of Mr Sewell, Mr Rogers and Mr Birch. When the meeting took place it also included Ms Skazas, Executive Assistant and HR/Payroll Supervisor.

[14] It is common ground between the parties that in the meeting Mr Birch’s performance was discussed. He had not expected to go to the meeting to discuss his work performance, however the evidence indicates that this became the purpose of the meeting almost as soon as it started. A number of past errors attributed to Mr Birch were raised by the managers and discussed. In addition, Mr Rogers put to Mr Birch that the other lab staff had lost confidence in him; that they had been going to Mr Rogers for advice for the past two and a half weeks which was causing him additional work, in order to deal with the extra interruptions 11.

[15] There was discussion about Mr Birch’s reasons for not signing a confidentiality agreement that had been put to him by the company in late 2012 12. Mr Sewell raised the subject of the mistakes in relation to the batch prepared for the new customer H13. Also raised in relation to the same batch of material for the customer H was the length of time that the quality control function had taken to clear release of the batch14.

[16] It is also common ground that after discussion of these issues for some time Mr Sewell requested time to consider what the company would do in relation to the matters that had been discussed 15. While Mr Birch remained in the room, Mr Sewell, Mr Rogers and Ms Skazas left the room and returned shortly after16. When they returned Mr Sewell said to Mr Birch words which indicated to him that he was to be dismissed. Mr Birch recollects that there was a discussion about an ex gratia payment which was to be made to him17. The conversation then turned to a proposition from Mr Sewell to Mr Birch that in return for a resignation the company would be prepared to provide references for Mr Birch for future employment, after which Mr Birch signed a letter of resignation.18

[17] Notwithstanding that Mr Birch signed a letter of resignation and subsequently left the employment of Allied Color and Additives, I am not satisfied that this was a genuine resignation on the part of an employee. I am satisfied on the evidence that this was a termination brought about for reasons of the employer. Without the strong conversation from Mr Sewell to Mr Birch in the meeting on 28 March 2013, including the statement from Mr Sewell that Mr Birch was to be dismissed, Mr Birch would not have voluntarily chosen to leave employment.

[18] Section 396 of the Fair Work Act 2009 (the Act) provides the following about the meaning of the term “dismissed”;

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[19] I am satisfied Mr Birch did not resign and was instead dismissed.

LEGISLATION

[20] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which 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.

CONSIDERATION

[21] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the FWC) must take into account the legislative factors set out earlier.

(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)

[22] In all the circumstances, Allied Color and Additives did not have a valid reason for the dismissal of Mr Birch on 28 March 2013.

[23] The evidence indicates that there were most probably reasons for the employer to be concerned about the performance of Mr Birch and, within the context both of the company’s trading position and its efforts to obtain a new and potentially valuable customer, it had reasons to counsel Mr Birch about his performance. Even so, the evidence also indicates that Mr Birch was defensive about the criticisms being made of him and that while he accepted some criticisms he did not accept all and had possible reasons for explanation as to others. On the basis of the evidence about the company’s investigations about the circumstances of the errors made in relation to the customer H batch and what was put to Mr Birch in the meeting on 28 March 2013, it is apparent there was, at that point at least, insufficient investigation of Mr Birch’s direct involvement in the failings and an insufficient consideration of any explanation he may have wished to put about the matters he was being criticised about.

[24] Mr Sewell’s witness statement in relation to Mr Birch’s performance indicates that ultimately the company had formed the view that Mr Birch had unsatisfactory expertise, together with unsatisfactory decision making and communication skills and an unsatisfactory ability to work in a team. 19 The things he said in the meeting on 28 March confirm he blamed Mr Birch for the recent errors with customer H and that he was not prepared to consider alternatives. His evidence is also that Mr Birch’s unsatisfactory performance had come to his attention over some time, especially the past two years, and that Mr Rogers had spent many hours counselling and mentoring Mr Birch to retrain to the standard required.

[25] There is evidence in the form of a performance warning issued to Mr Birch, dated 16 December 2011, which addresses some of the issues that Mr Sewell was also concerned about in March 2013 20. However, the warning is too distant to be of direct value in this particular case. The evidence demonstrates the “tipping point” for the employment relationship was the problem with the batch for customer H. Without those mistakes, it is unlikely that Mr Birch would have been dismissed when he was.

[26] In any event there is no clear evidence before me which would unequivocally demonstrate that the mistakes were all of Mr Birch’s making and no one else was involved.

[27] In considering whether or not there is a valid reason for the dismissal of an employee, it is necessary to consider whether the reason provided is ‘sound, defensible or well founded.’ 21

[28] At the time that Allied Color and Additives came to terminate Mr Birch’s employment, it is apparent that the company did not have a sound, defensible or well founded reason for doing so. It could not demonstrate, on the balance of probabilities, that Mr Birch was responsible for the mistakes and that he did not have a reasonable explanation for what had occurred.

(b) whether the person was notified of that reason

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

[29] I am satisfied the company put to Mr Birch its reasons for dismissal and that this was in the course of the meeting held with him on 28 March. The meeting discussed its concerns with Mr Birch and its perceived failings - that he had made errors, especially in relation o customer H; that he had failed to sign a confidentiality agreement when asked; and that he had not been as actively involved in training other staff as the company wanted.

[30] These reasons were not well-founded and, as noted above, there is no evidence of the company taking into account what Mr Birch had to say when he defended himself.

[31] The criterion of having an opportunity to respond is connected with there first being a finding that there is a valid reason for dismissal 22, which is not the case in this matter.

(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;

[32] Mr Birch was not offered an opportunity to have a support person present during the meeting on 28 March and he did not request to have a support person present.

[33] While the criterion has relevance where an employee asks for a support person to be present, I also note that Mr Birch’s evidence is that he was unaware the meeting purpose was to discuss his work performance.

(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

[34] Mr Birch was warned of poor performance in a letter given to him in December 2011. The letter confirmed the matters that had been discussed with him earlier. The letter identified that his performance was not acceptable and particularised the company’s concerns, as well as noting how he had responded verbally at the time. As referred to above, the warning does not have direct value in this matter, having been given over a year before the “tipping point” that caused the company to make its decision to dismiss.

[35] The recency and extent to which the subject matter of a warning with the reasons for dismissal are both important considerations. The December 2011 warning ended with an expectation by the company that Mr Birch would “need to focus” on 14 matters, most of which are subjective criteria. Whereas the subject matter of the warning received by Mr Birch is connected with the company’s reasons for dismissal, the fact that it was not given recently causes it not to have high utility. While the warning demonstrates that the company, at least in December 2011, had considerable concern about Mr Birch’s performance, there is no evidence that the issues complained about continued without abatement and did not improve during 2012; or that Mr Birch was aware of that possibility; or was aware of the consequences for him if he did not improve his performance.

(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;

(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

[36] While the evidence is that Allied Color and Additives is not a small business employer, within the meaning of the Act, it only employs a relatively small number of people with about 28 employees in Melbourne and a further 6 employees in New Zealand.

[37] Ms Angela Skazas is employed as an executive assistant and HR/payroll supervisor and her duties include the administration of payroll and human resource matters.

[38] The failures of Allied Color and Additives in relation to Mr Birch’s employment go substantially to the lack of a performance management system by which it could be said he was aware of his performance objectives and progress against them. While the company issued a warning in December 2011 it appears not to have followed up more recently with structured feedback on the issues contained within the warning in a way that would ensure Mr Birch was fully aware of a continued lack of performance (if that was the case) and the consequences which might follow.

[39] It is probable therefore that the absence of dedicated human resource management specialists or expertise in the enterprise may well have impacted on the decision making by Allied Color and Additives.

(h) any other matters that the FWC considers relevant.

[40] I do not take into account any other matters as being relevant in forming a decision about whether the dismissal was unfair.

[41] After taking into account the above criteria, I have formed the view that the dismissal of Mr Birch was harsh, unjust or unreasonable.

REMEDY

[42] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are 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.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person

by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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.

[43] Pursuant to s.390(3) of the Act an order for the payment of compensation to a person must not be made unless the FWC “is satisfied that reinstatement of a person is inappropriate” and also that the FWC “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[44] In considering whether Mr Birch should be reinstated to his position with Allied Color and Additives, I take into account the fact that the company had considerable concern about Mr Birch’s underlying skills and abilities; the state of the relationship between Mr Birch and the company and Mr Sewell in particular; and the circumstances which were put to me about the company’s trading position.

[45] In connection with the relationship between Mr Birch and the company, part of the evidence included that Mr Birch held an expectation from the time that he started with the company in the early 1990s that he would be a shareholder in the business 23. Part of the evidence includes his view that he is in fact a shareholder and there are threats of litigation between the parties in relation to that proposition24. The question, at least in Mr Birch’s mind, is not resolved and in the giving of evidence by him and Mr Sewell, it is apparent that the lack of resolution of the question continues to cause some anxiety to both. While I am satisfied on the basis of the material that was provided in this hearing that Mr Birch was an employee at the time he was dismissed, the lack of resolution of Mr Birch’s rights, if any, as a shareholder together with the fact that he was dismissed from his employment means that reinstatement of him as a consequence of this decision is inappropriate.

[46] In addition Allied Color and Additives provided material which would indicate the company is in a difficult trading position and has been for some time 25. It is faced with competition and the potential of further losses. I accept the evidence given by Mr Sewell in this regard and also to the point that it is necessary for the company to be very focused on improving its market position which requires focus and determination on the part of its employees as well as demonstrably good skills. When connected with the company’s concerns about Mr Birch’s skills and performance, I am satisfied that this factor also provides reasons for reinstatement being an inappropriate option to consider in this matter.

[47] Notwithstanding these findings, I consider that an order the payment of compensation is appropriate in all the circumstances of the case. I turn to consider and appropriate quantum of compensation, taking into account the criteria for the setting of compensation set out in s.392 of the Act.

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

[48] As referred to above, there is some evidence to the effect that Allied Color and Additives is in a difficult trading position, however there was no evidence that the impact of an order for compensation would be so great as to affect the viability of the employer’s enterprise.

[49] I find the order I propose will not affect the viability of the employer’s enterprise.

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

[50] As referred to above Mr Birch has been employed by the company since either 15 or 16 January 1993. In addition he worked as a contractor to the company for a period of about 18 months prior to commencing employment. At the time he left employment he was 62 years of age 26.

[51] The length of time of Mr Birch’s service, together with his age, require being taken into account in considering an appropriate amount of compensation.

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

[52] In matters in which compensation is a consideration, the FWC ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment” 27.

[53] There was plainly a history of concern about Mr Birch’s performance and ability to undertake the duties set out in his position description. While it may be the case at his age and length of service that Mr Birch may have expected to consider working for the company for some time into the future, that would have been unlikely and especially so if the company had implemented a proper performance management and warning process. All things considered, had Allied Color and Additives not dismissed Mr Birch in March his employment future would have been tenuous.

[54] Based upon the employment record of Mr Birch I consider that his employment would have continued for no more than three months if he had not been dismissed in March 2013 and probably less in view of the company’s strong views about his skills and performance. In forming this consideration, I have had regard to his length of service and that a person with significantly less service otherwise in the same circumstances as Mr Birch, would not have continued in their employment for more than one or possibly two months at the most (as a result of less lenience being shown during a performance management process).

[55] As a result I consider that the remuneration that Mr Birch would have received, or would have been likely to receive if he had not been dismissed in March 2013 is 10 weeks wages.

[56] The evidence about Mr Birch’s remuneration at the time of dismissal was that he was paid an annual salary of $54,590 which equates to an amount of $1049.81 per week. I consider it appropriate to use this weekly amount as the basis for calculating compensation.

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

[57] In giving his evidence, Mr Birch referred to having made a number of job applications, all of which had been unsuccessful at the time of the hearing. I accept these as genuine and proportionate efforts on his part to mitigate his loss from his dismissal.

(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

(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

[58] As referred to above to the date of the hearing, Mr Birch had not earned any wages since been dismissed. As a result there is no discount to be made in respect of any remuneration he may have received since the time of dismissal. In addition, since Mr Birch was not in employment at the time of the hearing, it is unlikely that any discount is required in respect of the income he might earn in the future from the date of the order of compensation.

(g) any other matter that the FWC considers relevant.

[59] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

CONCLUSION AND ORDERS

[60] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[61] I find that reinstatement is not an appropriate remedy in this case.

[62] I find that compensation is appropriate.

[63] The approach by the FWC in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5) of the Act. 28

[64] In relation to the matter of contingencies, I find there are none that ought be taken into account in this matter.

[65] Having regard to the considerations established by s.392 of the Act, and the criteria established by the FWC, I find that compensation should comprise a payment by the respondent to the applicant calculated as follows:

Assessment of remuneration lost:	10 weeks projected lost income at the rate of $1,049.81 per week	$10,498.10
Employer superannuation contribution on above	9%	$944.83
LESS:	Monies earned since dismissal	$0
LESS:	Contingencies	$0
TOTAL	$11,442.93

[66] The above amount does not exceed the compensation cap applying at the time of dismissal.

[67] The compensation payment of $11,442.93 will be taxed by the employer according to law, and is to be made within 14 days of this decision.

[68] An Order to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Mr R. Birch on his own behalf.

Mr A. Sewell for Allied Color and Additives Pty Ltd.

Hearing details:

2013.

Melbourne:

August, 6.

 1   Transcript, PN660.

 2   Exhibit A1, attached job description.

 3   Exhibit R1, para 4.

 4   Exhibit R2, para 10e.

 5   Exhibit R2, Appendix VIII (3).

 6   Ibid.

 7   Ibid, para 11.

 8   Applicant’s submissions, para 5.

 9   Exhibit R4, para 12.

 10   Exhibit R4 para 13.

 11   Exhibit A1, para 8.

 12   Ibid, paras 10 and 17.

 13   Ibid, para 6.

 14   Ibid, para 9.

 15   Transcript, PN410; Exhibit A1, para 14.

 16   Transcript, PN389; Exhibit A1, para 15.

 17   Transcript, PN48; Exhibit A1, para 16.

 18   Exhibit A1, attachment.

 19   Exhibit R4, paragraph 9.

 20   Ibid, attachment VII.

 21   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at 373.

 22   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

 23   Transcript, PN28.

 24   Exhibit A1, para 15.

 25   Transcript, PN 635 - 646.

 26   Transcript, PN689.

 27   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 28   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (2000), Print S5109 [33].

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