[2017] FWC 4309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robin Willmot
v
BlueScope Steel Limited
(U2017/181)

COMMISSIONER GREGORY

MELBOURNE, 18 AUGUST 2017

Application for relief from unfair dismissal.

Introduction

[1] Mr Robin Anthony Willmot (“the Applicant”) was first employed by BlueScope Steel Limited (“BSL”) in February 2014 and worked as a Process Worker/Operator at its Westernport steel mill at Hastings in Victoria. He is most often referred to as Tony Willmot. On 5 November 2015 he slipped and fell at work and sustained an injury which required him to spend time in hospital, and to then attend a rehabilitation centre. He lodged a work injury claim five days after he was injured, which was initially accepted. However, BSL became concerned over time about the progress of his recovery, and whether he was feigning the injury.

[2] On 27 June 2016 Mr Willmot’s injury claim was terminated and, after further processes of investigation and enquiry, his employment was terminated on 16 December 2016. The letter of termination stated, in part:

“Having taken into consideration the allegations that have been made against you, and the responses you have provided, the decision has been made by BlueScope to summarily dismiss you from your employment with effect on 16 December 2016.

The reason for this decision is that BlueScope is satisfied that the allegations of misconduct made against you have been made out. The reasons, therefore, for the decision to terminate your employment are that you:

1. Made a fraudulent workers compensation claim.

2. Provided misleading information in support of the workers compensation claim made by you on 10 November 2015.

3. Misled BlueScope as to the extent of your injuries and work capacity.

4. Provided misleading information to BlueScope during the investigation of the allegations made against you.

Your conduct, amounting to serious misconduct, is completely unacceptable and has resulted in a breach of trust and confidence, and a complete breakdown of the employment relationship.” 1

[3] Mr Willmot then lodged an unfair dismissal application. The matter was dealt with in hearings on 24, 26, 27 and 28 April 2017. At the conclusion of those proceedings it was agreed that the parties would have additional time to file and serve closing submissions, with a further hearing date then scheduled to allow final closing submissions. That occurred on 16 June 2017. The Applicant’s brother, Mr Paul Willmot, appeared on his behalf. Mr Andrew Pollock of Counsel was granted permission to appear on behalf of BSL under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”)as the matter involved a degree of complexity and his involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[4] Mr Willmot claims he has been unfairly dismissed under s.385 of the Act because his dismissal was “harsh, unjust or unreasonable.” In dealing with the application s.387 of the Act sets out various considerations that the Commission must take into account. It states:

“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.” 2

[5] The Commission is accordingly required to determine whether Mr Willmot’s dismissal was harsh, unjust or unreasonable taking into account the matters contained in s.387.

The Evidence and Submissions

Mr Tony Willmot

[6] Mr Willmot indicates in his witness statement that he commenced with BSL in February 2014 in what he describes as a Process Technician (Operator) role. However, on 5 November 2015 he “was involved in a slip and fall whilst moving between Cold Production Mill stands.” 3 His statement continues to indicate:

“3. My initial diagnosis was lower limb weakness, back pain and spinal shock, however, with limited recovery, this has evolved to ‘Conversion syndrome/disorder.’ My symptoms include limited mobility and cognition. I do feel amplified pain from my lower body.

4. Prior to getting out of bed I must consume sufficient and appropriate medication, when I set out from the house for an errand I prepare with diet, additional medication, particular clothing (including diaper) and several supports (Ankle Foot Orthosis, tape and crutches). I have the ability to ambulate (‘walk) using predominantly my right thigh muscle.

5. My cognitive function is limited to short periods and narrow fields of concentration and my short-term memory is deficient.” 4

[7] On 10 November 2015 he lodged a work injury claim which was initially accepted by BSL. However, on 27 June 2016 it decided to end his weekly medical support and he was then “summarily terminated by BSL on 19 December 2016 based on accusations of fraud.” 5

[8] He also indicated in his evidence in chief that there is no evidence of any gain or advantage to him that has been identified as a consequence of his allegedly fraudulent behaviour, and he has never been involved in anything in the past involving allegations of fraud.

[9] He also provided an explanation in response to a question about whether he had “developed a piece of kit for your left leg that will assist you in ambulating.” 6 He provided a detailed answer in response, describing a range of devices and mechanisms he has developed to assist his mobility.

[10] He also indicated that he was at a very low point in his life in the early part of last year following his injury and the death of one of his brothers. He had been involved in a range of business activities with his brother which came to an end following his death.

[11] Mr Willmot denied in cross-examination that he had lied about who had driven the vehicle when he travelled from his home in Mount Martha to the appointment with Associate Professor Brazenor at his rooms in Richmond. However, he did acknowledge that he may have made an error or been confused when he stated that he had been driven to the appointment by his sister. He also denied that he had exaggerated his symptoms in the medical examinations carried out by Doctor Frayne, Associate Professor Brazenor, and other health professionals.

[12] He also indicated in cross examination that he did not take issue with what was depicted on the video surveillance footage of him, however, on those occasions he presented very differently because he was “fully augmented,” with a variety of aids designed to assist his mobility and movement.

Doctor Pamela Wu

[13] Dr Pamela Wern Loo Wu is Mr Willmot’s General Practitioner. In a letter dated 30 March 2017 Doctor Wu states that she has been his GP since 20 January last year, and has had 35 consultations with him since that time. Her letter includes the following statement:

“From the start of my professional relationship as Robin’s doctor on 20/1/2016 he was a workcover patient funded by Blue Scope Steel since having had a fall at work on 5/11/2015 that required transfer to and management at Frankston hospital, followed by rehabilitation at Golf Links Road Rehabilitation for lower back pain and bilateral leg weakness with suspected spinal infarct/shock. Robin had required significant analgesia, physiotherapy and psychological counselling and continues to need this. He requires crutches for ambulating as well as a wheelchair. Likely from using his crutches and his diligence with physiotherapy he developed significant wrist pains and ankle pains and required rest and taping of his wrists and ankles for support and relief. He also has orthotics such as an ankle foot orthotic and back brace. He is compliant with his management and attends all his medical appointments. Despite him participating regularly with physiotherapy he has had minimal improvement and we therefore referred him to a neurologist (Dr. Judith Frayne) who repeated a lot of his investigations and suspects that he has Conversion Disorder and has referred him to Caulfield Pain Management Service for further specialist team management. The Caulfield Pain Management Service is formulating a plan for him in communication with myself too via letters and via the patient, which requires a multidisciplinary approach involving a medical doctor to review medications, psychiatrist, psychologist, physiotherapist and occupational therapist.” 7

[14] She concludes by stating that she believes Mr Willmot “has had significant limitations since then that has required specialist management … to help in his recovery.” 8

[15] Doctor Wu also said Associate Professor Brazenor was the only treating practitioner who had suggested Mr Willmot was feigning his condition, 9 and she had been working through a process with him whereby a “working diagnosis” was initially developed with further work then being done to ascertain whether this was the correct diagnosis.10

[16] Doctor Wu also indicated in cross examination that she did not have specialised training as a neurologist or psychiatrist, and essentially played a coordination role in regard to Mr Willmot’s treatment. She also acknowledged that she was not in a position to take issue with or question Associate Professor Brazenor’s diagnosis of Mr Willmot. 11

Mr Willmot’s submissions

[17] Mr Willmot indicates in his submissions that following the injury sustained on 5 November 2015 he progressed in his rehabilitation in a manner consistent with temporary spinal shock diagnosis. However, his recovery then stagnated. “It also became apparent that none of the expected organic pathology was evident, with all scans deployed of significance. This has also never been contested.” 12

[18] As the cause of his symptoms remained unclear Doctor Wu pursued what was described as “a multi–disciplinary approach across both physical and psychological domains to isolate a diagnosis.” 13 In addition, through a combination of “enhanced technique, diet, drugs, retraining of muscle groups and structural augmentation”14 he became “somewhat functional outside the home environment.”15

[19] However, BSL began to develop a perception that a gap existed between the medical reporting of his condition and his demonstrated capacity. He submits this was due to what he describes as “apples and oranges comparisons,” 16 and was primarily due to the influence of Mr Wallington and the reliance placed on his views and opinions by Mr Taylor. In summary, BSL had ignored the fact that he presented differently in his natural state (with unaided capacity) when compared to how he presented in his augmented state.

[20] In April last year Doctor Wu gained approval to enable a neurological examination to be conducted and Mr Willmot was referred to a neurologist, Doctor Judith Frayne. She examined him on three occasions, and finally concluded that she could not establish any medically or surgically treatable cause of his condition, but did indicate that “It is my impression there is likely a conversion disorder.” 17

[21] At the same time BSL initiated a surveillance program and arranged for a further examination to be carried out by a neurosurgeon, Associate Professor Brazenor. Mr Willmot does not take issue with the conclusion reached by Associate Professor Brazenor that there was no evidence of a back injury. However, he does take issue with the manner in which this examination was carried out highlighting, in particular, Associate Professor Brazenor’s prejudice to “a feigning outcome, and the lack of adherence to IME standards.” 18

[22] He also submits that BSL confined its investigations to the “physical domain,” 19 and dismissed any suggestion that psychological factors, including conversion disorder, might be responsible. It chose to ignore the “massive evidence pool”20 available from other medical and professional support staff, and instead relied only on the opinion of Associate Professor Brazenor. His evidence was also relied upon to dismiss the suggestion by Doctor Frayne of possible conversion disorder. This occurred without Mr Willmot being provided with the opportunity to adduce evidence to establish that conversion disorder might be responsible.

[23] He continues to submit that BSL “has made apples and oranges comparisons due to a lack of appreciation of: a. the difference in the applicant’s capability in his natural and augmented state, and b. the contextual nature of the reports they are relying on.” 21 This misunderstanding could have been resolved if Mr Wallington had allowed Mr Taylor to visit Mr Willmot in his home. Instead Mr Wallington’s lack of understanding about what Mr Willmot was capable of when “fully augmented” led to flawed perceptions about his capability, and if Mr Wallington had been prepared to meet him in his home in his “non-augmented state” he would have formed a more accurate view about him.

[24] His capability in his so-called “augmented state” is also relied upon to explain his behaviour in the surveillance footage compared to how he presented during medical examinations and at other times.

[25] Mr Willmot also submits that the “chance meeting” with Ms Towey was not, in fact, a coincidence, but rather a contrived circumstance given the evidence indicating Mr Willmot was under surveillance on that day.

[26] Mr Willmot also takes issue with Associate Professor Brazenor’s role. He notes, firstly, that he is not a psychiatrist or psychologist. Secondly, his reaction to the footage of the injury and, in particular, his reaction to the accompanying laughter, caused him to conclude the injury was feigned when it is unclear whether the audio was concurrent with the footage of the injury. He also did not comply with the requirements of a WorkSafe IME in that he failed to first explain his role and the purpose of the examination he was about to conduct. Mr Willmot also submits that in referring in his report to the “maintenance of his ruse” 22 Associate Professor Brazenor made a value judgement about Mr Willmot that clouded his ultimate conclusions.

[27] He also submits that the evidence of Associate Professor Brazenor has been relied upon exclusively by BSL in circumstances where another specialist, Doctor Frayne, has made reference in a medical report to the possibility of conversion disorder. A psychiatric assessment should therefore have been carried out so that all options were covered off before the decision was made to terminate his employment.

[28] He also submits there was no justification for his summary dismissal as he had already been absent from the workplace for some time, and there was no need for him to be immediately excluded. BSL had instead embarked on a planned strategy designed to end with the termination of his employment and, as such, he was denied a fair process and a fair hearing.

[29] He also rejects any suggestion that the possibility of conversion disorder was only suggested at the eleventh hour, and submits instead that a “broader diagnostic process” 23 was on-going at the time of his termination and was still to be completed. In addition, Mr Taylor was not aware at the time of termination that Associate Professor Brazenor had ruled out any possible diagnosis of conversion disorder, and he should therefore have done more to ascertain whether this was a potential cause of Mr Willmot’s condition once alerted to the possibility by Doctor Frayne’s report.

[30] Mr Willmot submits, in summary, that BSL has taken a simplistic approach. When his treating doctors were unable to establish any cause of injury it simply concluded that he had feigned the injury and was therefore acting fraudulently. This ignored other legitimate options including, in particular, psychosomatic or psychological causes. BSL pursued this approach despite a psychologist, Mr Thornton, indicating Mr Willmot presented as a “genuine and motivated client,” 24 and Doctor Frayne, who suggested the possibility of conversion disorder.

[31] The process of working through a broader diagnostic approach was further hindered by BSL’s decision to end rehabilitation support in June 2016. Its deficiencies in its decision-making processes were also accentuated by its failure to understand the difference between Mr Willmot’s capacity when “fully augmented,” and his abilities when not so assisted. This caused it to have a consistently flawed perception of his capabilities.

[32] BSL has therefore placed artificial boundaries around the potential scope of what it was prepared to consider by way of diagnosis and disregarded the assessments of other medical professionals leading to an unjust and unfair outcome. In summary, Mr Willmot submits that –

all avenues for proper diagnosis were not pursued;

he was never provided with an opportunity to demonstrate his true functionality;

BSL did not taken account of his cognitive impairment, despite this being evident during his medical examinations; and

even if he is now found to be suffering from conversion disorder BSL submits it acted appropriately in dismissing him at the time. This is unacceptable. He has been dismissed for acting fraudulently. That finding and the associated damage to his reputation should not be allowed to stand.

Mr James Wallington

[33] Mr James Wallington is a Senior HR Adviser at the Westernport site, but was occupying the role of HR Manager while the permanent appointment to that position, Ms Laura Towey, was on maternity leave. He became aware of the injury sustained by Mr Willmot shortly after it occurred, and was aware he lodged a work injury claim on 10 November 2015. Mr Willmot then received work injury payments and worked with a return to work coordinator to develop a return to work plan. Mr Wallington continued to be involved in ongoing reviews about the status of his claim, as he did with other work injury claims at the site.

[34] He was subsequently advised by the Claims Manager that Mr Willmot’s condition appeared to be deteriorating and an independent medical examination by a neurologist was proposed. It was also decided that video surveillance be initiated to ascertain whether his actions and behaviour were consistent with the description of his capability provided in his certificates of capacity. This took place in May and June 2016.

[35] On 1 June 2016 Mr Wallington attended a case conference with Mr Willmot. He indicated at that time that he had difficulty in driving for more than 10 minutes; he could not sit for more than 20 minutes at a time; he suffered from incontinence, and any physical movement was only possible with the full weight of his body being taken by his crutches. On his return to the site Mr Wallington visited Ms Towey at her home, as he did on occasions, to provide an update about some of the current issues he was dealing with at work. The discussion included an update on Mr Willmot and the observations of him at the case conference.

[36] Later that afternoon he received a phone call from Ms Towey who said she had just seen Mr Willmot at the Benton Square Shopping Centre. She told him her observations of his physical capability were very different to how Mr Wallington had described them when he met with Mr Willmot earlier that day. Mr Wallington discussed this with the Claims Manager and it was decided to continue the surveillance of Mr Willmot.

[37] He was then told by the Claims Manager on 27 June that Mr Willmot had been advised that his work injury claim had been terminated. The surveillance footage was then received on 30 June and it was decided to again ask Associate Professor Brazenor to provide an opinion about what the footage revealed.

[38] A meeting was then arranged on 22 July with Mr Willmot to discuss the termination of his work injury claim. He was invited to have a support person present. Mr Taylor and an Administration Coordinator, Ms Amanda Burston, also attended. Mr Wallington detailed BSL’s concerns about the surveillance footage and the witness observations of him not being consistent with the medical reports about the nature and extent of his injuries. Mr Willmot responded by indicating he was not fully dependent on crutches, and asked whether BSL had viewed footage of him being assisted with his diaper at Associate Professor Brazenor’s rooms. He also said he had seen CCTV footage from the Benton Square Shopping Centre.

[39] Mr Willmot subsequently provided a written response on 3 August, but it was general in nature and did not respond to the specific allegations made against him. BSL was then advised to direct any further enquiries to his lawyer. A further response was then received on 12 September 2016 after he had been given additional time to respond.

[40] Mr Wallington also made enquiries of the Centre Manager at the Benton Square Shopping Centre about the availability of CCTV footage, and was told he could not recall any requests being made to view footage from 1 June. He was also told that any such request would likely be denied as the Centre had a policy of not providing footage to the general public.

[41] BSL considered the response provided by Mr Willmot and decided to again approach Associate Professor Brazenor to seek further clarification about his observations of Mr Willmot. He provided a supplementary report to BSL on 14 October 2016.

[42] A further meeting was then scheduled with Mr Willmot on 28 October and he again attended with a support person. He said he wanted to provide further details from his various treating practitioners and asked BSL to contact them. BSL said it would consider all relevant information and asked for consent notices to be provided so the relevant medical reports could be obtained.

[43] These reports were then reviewed and it was decided that they did not point to any new diagnosis that gave any additional insights into Mr Willmot’s condition. Mr Wallington said Mr Taylor then told him he now considered he had enough information to enable him to make a decision and he had decided Mr Willmot’s employment should be terminated. Mr Wallington accordingly prepared a termination letter for Mr Taylor to sign.

Mr Geoffrey Taylor

[44] Mr Geoffrey Taylor has been employed by BSL for 32 years and has been the Cold Reduction Department Operations Manager since 2011. He was made aware of the injury to Mr Willmot shortly after it occurred, and directed a Supervisor to conduct an initial investigation. He then visited Mr Willmot in hospital on two subsequent occasions and said he appeared to be in good spirits and was hopeful of a speedy recovery. However, he then became aware he was only progressing slowly.

[45] He was then advised by Mr Wallington in May that the Claims Department had concerns about Mr Willmot’s work injury claim and it was to be investigated further. He was involved in the meeting with Mr Willmot on 22 July, and reviewed the various medical reports prior to the meeting. After reviewing them and the surveillance footage he concluded that Mr Willmot had a case to answer, given the apparent inconsistencies in his behaviour. His evidence about what occurred in the meeting was consistent with that of Mr Wallington. He also provided similar evidence about the various representations and delays that then occurred before a response was received from Mr Willmot. His evidence continued to detail the efforts made to then obtain the various medical reports Mr Willmot asked to have considered.

[46] Mr Taylor indicated, in conclusion, that after reviewing all of the materials he decided that Mr Willmot had:

“made a fraudulent workers compensation claim;

provided misleading information in support of his claim;

misled BlueScope as to the extent of his injuries and work capacity; and

provided misleading information to BlueScope during our investigation of the allegations made against him.” 25

[47] He also stated that he believed Mr Willmot had actually been injured at work and had initially made a genuine work injury claim. However, after reviewing the surveillance footage and medical reports, and his responses to the allegations put to him, “it became apparent to [him] that the claim was fraudulent.” 26 He also emphasised that the only diagnosis available to him at the time was that provided by Associate Professor Brazenor and, as a consequence, he did not consider that he needed to take his investigations any further. He therefore decided Mr Willmot’s employment should be terminated, given the seriousness of his misconduct, and the fact he could no longer be trusted.

Associate Professor Brazenor

[48] Associate Professor Brazenor has been a neurosurgeon for more than 35 years, and has a particular interest in complex spinal injuries and medico legal matters. In April last year he was asked by BSL to examine Mr Willmot and was provided with a series of questions it wanted addressed. He subsequently provided a report dated 30 May 2016 after examining Mr Willmot earlier that day.

[49] He said Mr Willmot presented during the examination, “[a]s an apparently very disabled man.” 27 It appeared, in particular, that he was unable to use his legs at all, and instead used his arms to reposition his legs and raise his body, when seated. However, he was not aware of anything during the examination that suggested Mr Willmot had soiled himself, or was incontinent. Mr Willmot also told him that his sister, who normally lives in Darwin, was in Melbourne at the time and had driven him to the appointment from his home in Mount Martha because he was unable to drive long distances.

[50] Associate Professor Brazenor then received further requests from BSL to provide an opinion after reviewing the surveillance footage of Mr Willmot. He subsequently came to the following conclusions after reviewing that footage.

Mr Willmot was feigning his spinal injury.

There was no clinical or radiological evidence to support the claim he suffers from a spinal injury.

His behaviour was entirely inconsistent with a diagnosis of spinal injury. 28

[51] He highlighted the following points in support of these conclusions.

1. The contradictions contained in Mr Willmot’s medical history. In this context he referred to:

the claim that he has paresis and yet is able to drive a car;

the implausible claims about how he manages his alleged incontinence;

the medication he takes for alleged spinal pain which is not intended as a treatment for that condition; and

his apparent ability to be able to care for himself while claiming to be “paraparetic.”

2. The findings from his examination of Mr Willmot on 30 May 2016. He indicated, in summary, that there was not a single finding from that examination to support Mr Willmot’s claim of spinal injury, or even a finding that supports the claimed weakness in his legs. He provided a number of examples from his examination in support of this conclusion.

3. The incompatibility between Mr Willmot’s presentation during the examination and how he appeared in the surveillance footage. In this context he highlighted Mr Willmot’s ability in the footage to walk with little or no support from his crutches, and to be able to bend and stand without support or assistance.

4. The CT and MRI scans did not reveal any sign of injury and only pointed to deterioration consistent with normal age related degenerative change. 29

[52] He also made a number of additional observations when viewing the video surveillance footage during the course of the hearing, including that he was observing a man pretending to be using crutches, and he could be seen kneeling down and then using full power in his legs as he gets up. He also stated that he had not seen anyone injure their spinal cord in a fall of the kind experienced by Mr Willmot.

[53] He also rejected the suggestion than when he referred to Mr Willmot continuing with “his ruse” he was making a value judgement about him. He said this was instead a clinical judgement. He continued to state, “I have made a clinical judgement. It’s clinical. He doesn’t have an injury to his spine, and not only that but he is pretending to have an injury to his spine. That means he’s a malingerer. And that means he is perpetrating a ruse. So it’s not a value judgement, it’s a reflection of the diagnosis that I came to reluctantly after considering all the evidence.” 30

Ms Karen Jarmain

[54] Ms Karen Jarmain works as a Medical Secretary with Associate Professor Brazenor. She let Mr Willmot in when he attended the rooms on 30 May 2016. She did not notice any unusual smell then, or when he left after his appointment. She also denies that Mr Willmot asked her whether there was a sanitary bin in the bathroom, or that she left the reception area to direct him to the bathroom.

Ms Lara Towey

[55] Ms Lara Towey is the HR Manager at BSL Westernport. She was absent from work on maternity leave from August 2015 until September 2016, but during this time remained in contact with Mr Wallington, who was acting in her role. Their discussions included the injury suffered by Mr Willmot and the progress of his recovery. Ms Towey knew Mr Willmot from when he was first employed by BSL and was concerned about his welfare and how he was progressing.

[56] She was contacted on 1 June last year by Mr Wallington who was in the area and asked if he could call in at her home. During the course of their discussions he told her that following a case conference that morning it appeared Mr Willmot required “constant care.” 31 He also told her that an investigation was now taking place into the “authenticity of Tony’s medical claims.”32

[57] On the afternoon of the same day Ms Towey was at the Benton Square Shopping Centre when she “saw in the distance a man walking along with a crutch in one hand and pushing a trolley with the other. He appeared to be walking unassisted. I noticed it because I thought it looked a strange thing to do. I could not see the man’s facial features and did not recognise him at that point.” 33 However, as he got closer she recognised him as Mr Willmot and he then walked straight past her “within touching distance.”34 She continued, “He appeared to be walking normally in the 20 – 25 metres whilst pushing the trolley along with one hand and carrying the crutch in the other and was certainly not accompanied or assisted by anyone. What I saw of his walking ability at the Shopping Centre was completely inconsistent with how James had described his appearance and demeanour earlier that day.”35

[58] After he passed her she turned around and noticed he had commenced using the crutch to support his left side as he continued walking and wheeling the shopping trolley. When she returned home she rang Mr Wallington and told him what she had seen.

BSL’s Submissions

[59] BSL submits, in summary, that Mr Willmot was terminated because he misrepresented the nature and extent of his injury, and then acted to deliberately mislead it during the investigation into what occurred. He also made a fraudulent work injury claim. Its reasons for his termination are detailed in the extracts from the letter provided to him, which are set out in the introduction to this decision. It also submits its process in investigating all of the circumstances was fair, and led to the conclusion that his behaviour and conduct provided a valid reason for his termination.

[60] In dealing with the evidence it submits, firstly, that Mr Willmot was not a credible witness and was “highly evasive” 36 in terms of much of his evidence. His recollection of events was also unreliable. In addition, his physical symptoms appeared to vary, being notably pronounced during cross examination, but much less apparent during his examination in chief and re-examination.

[61] It also submits that his GP, Doctor Wu, was by her own admission not a relevant expert, and instead played a coordination role in Mr Willmot’s treatment. In addition, no direct expert evidence was called, including from Doctor Frayne, entitling the Commission to draw a Jones v Dunkel 37 inference. It makes the same submission about the lack of any expert evidence about how his so-called “augmentations” or aids were able to assist his capacity. It also points to the evidence of Associate Professor Brazenor suggesting it is impossible to drive a car without being able to flex the ankle, an action Mr Willmot claims he cannot do.

[62] It continues to submit that Associate Professor Brazenor’s evidence was unchallenged, and the attempt to discredit him for not being a Worksafe approved Independent Medical Examiner is of no consequence as he was not bound at the time by Worksafe’s service standards. In any case that issue has no bearing on Associate Professor Brazenor’s status as a relevant expert. In addition, his evidence that Mr Wilmot was feigning his spinal injury, and could not have been suffering from conversion disorder, was unchallenged and must be accepted.

[63] In addition, Ms Karen Jarmain’s evidence was also consistent with Mr Willmot’s conduct in misrepresenting his symptoms, and Ms Laura Towey’s evidence about her chance meeting at the Benton Square Shopping Centre reinforced this pattern of behaviour.

[64] Mr Wallington’s evidence about the difference between Mr Willmot’s apparent impairment at a case conference on the morning of 1 June last year, and his behaviour as observed later that day by Ms Towey, was again consistent with the contrast between how he presented in various medical examinations and how he appeared in the surveillance footage. In addition, no serious challenge was made to Mr Taylor’s evidence about what he describes as BSL’s “measured approach” in dealing with Mr Willmot.

[65] It submits, in summary, that there are two key issues in dispute. Firstly, whether it had a valid reason to dismiss Mr Willmot related to his capacity or conduct and, secondly, whether it afforded him procedural fairness as part of that process. In regard to the question of “valid reason” it submits the Commission should find Mr Willmot misrepresented the nature and extent of his injury in the period November 2015 to July 2016, as borne out by Associate Professor Brazenor’s observations and the responses to the various tests he carried out.

[66] BSL also dismisses the suggestion it should have considered and evaluated conversion disorder as a potential diagnosis. It had instead received a report from an independent expert which concluded Mr Willmot was feigning his symptoms. Those allegations were put to him. It was accordingly for Mr Willmot to provide expert evidence in response if he wished to challenge or take issue with this diagnosis. He did not take up this opportunity, and at no time during the investigation process did he provide a diagnosis of conversion disorder from a specialist qualified to provide that diagnosis.

[67] It also submits that Mr Willmot provided a number of misleading responses during the course of the investigation. They include the claim that his sister drove him to the examination at Associate Professor Brazenor’s rooms, when the surveillance footage makes clear he drove himself. It also refers to the claim that he was assisted at that appointment to change his adult diaper when the evidence makes clear this did not occur. The claim that he had soiled himself immediately prior to that examination was also not borne out by the evidence. The claim that he had viewed the CCTV TV footage from the Benton Square Shopping Centre was also not able to be substantiated.

[68] BSL submits, in conclusion, that Mr Willmot’s actions constituted serious misconduct and justified the termination of his employment. It referred to what it describes as three “critical matters” 38 in this context.

His behaviour involved a sustained attempt to mislead BSL and various health professionals.

He attempted to claim that other employees at BSL had acted dishonestly as part of an orchestrated campaign against him. This was fundamentally inconsistent with the trust and confidence necessary to continue in an employment relationship.

Finally, Mr Taylor received three separate reports from Associate Professor Brazenor before deciding to terminate Mr Willmot’s employment. The last of these reports contained a comprehensive rebuttal of the various explanations previously provided by Mr Willmot. Mr Taylor also had no credible evidence before him of any diagnosis of a psychiatric condition, despite Mr Willmot being provided with every opportunity to provide such evidence. 39

[69] BSL also rejects any suggestion that there were serious procedural fairness deficiencies in its investigation processes. Mr Willmot was provided with comprehensive details in writing of the allegations made about him. He was given every opportunity to respond to those allegations, including being provided with additional time on more than one occasion to enable him to do so. He was also provided with, and took up the opportunity, to have a support person present in the various meetings that took place. He was also given detailed reasons for the subsequent decision to terminate his employment. It submits in conclusion that “stripped to its essence, his conduct amounts to an attempt to ‘cover his tracks’ after being caught out in a lie.” 40

Consideration

[70] The submissions and evidence provided by the parties have traversed a range of issues and a variety of circumstances. I have had regard to all of that material. However, in coming to a decision in this matter I have had particular regard to those matters in s.387 that I must take account of in determining whether Mr Willmot’s dismissal was “harsh, unjust or unreasonable.”

[71] An explanation about the nature of the conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 41 when McHugh and Gummow JJ stated as follows:

“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 42

[72] The decision of a Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 43 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 44

[73] I now turn to deal with each of the matters in s.387 having regard to these authorities.

(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)

[74] It has been made clear that the existence of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 45 a Full Bench of the Commission came to the following conclusion about the importance of “valid reason”:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 46

[75] The reason must also be objectively valid. It is not sufficient for the employer to believe it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 47where the Full Bench held at [19]:

“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 48

[76] The decision in Selvachandran v Peterson Plastics Pty Ltd 49 also makes clear that the reason should be “sound, defensible and well founded” and must not be “capricious, fanciful, spiteful or prejudiced.”

[77] The submissions and evidence relied upon by the parties have been set out in some detail already and are not restated now. Mr Willmot submits, in summary, that BSL did not have a valid reason to dismiss him because it had not at the time exhaustively investigated all of the possible causes of his condition before concluding he was feigning his injuries, had made a fraudulent work injury claim, and was seeking to deceive BSL. He submits that it failed, in particular, to consider and rule out the possibility that he was suffering from conversion disorder when this had been suggested as a possibility by one of his treating medical practitioners.

[78] He also submits that BSL’s assessment of him was distorted because it ignored the fact that his capacity in his so-called “augmented state” was significantly enhanced when compared to how he presented in his natural or “unaugmented state,” and this acted to explain why he presented differently at different times. He submits these perceptions of him were reinforced by the failure or refusal of Mr Taylor and Mr Wallington to visit him at home when they would have been able to observe him in his “natural state.” He describes BSL’s approach as being a flawed process of comparing “apples and oranges.” It simply concluded that the differences in his presentation and capacity at different times could only be explained by the fact he was feigning his injuries. It had accordingly placed artificial boundaries around the potential scope of what it was prepared to consider leading to an unjust and unfair outcome.

[79] He also submits that BSL relied too heavily on the evidence and expertise of Associate Professor Brazenor. Mr Willmot does not question Associate Professor Brazenor’s expertise as a neurosurgeon, however, he does take issue with aspects of his conduct and behaviour. He also submits that in referring to the “maintenance of a ruse” Associate Professor Brazenor allowed a value judgement to cloud his thinking, instead of basing his opinions upon a medical diagnosis. He also notes that Associate Professor Brazenor is not a psychiatrist and given the suggestion about the possibility of conversion disorder a psychiatric assessment should have been carried out to cover off all possibilities before BSL concluded he was feigning his condition and should be terminated on grounds of serious misconduct.

[80] BSL takes issue with much of the witness evidence relied upon by Mr Willmot. It describes him as an unreliable witness, who was highly evasive in terms of much of his evidence. It notes that his General Practitioner, Doctor Wu, was by her own admission not a relevant expert and instead played a coordination role in terms of the attempts to establish a diagnosis of Mr Willmot’s condition. It also notes that Mr Willmot did not call any direct expert evidence, including from Doctor Frayne, a neurologist who had previously examined Mr Willmot. It also points to the lack of any expert evidence about how his so-called “augmentations” or artificial aids were able to assist his capabilities and the way he was able to present on different occasions.

[81] It continues to submit by way of contrast that Associate Professor Brazenor’s evidence was unchallenged, and the attempts to discredit him had no bearing on his acknowledged status as a relevant expert. BSL submits it was entitled to accept and act upon his report, given his acknowledged expertise. It continues to submit that the evidence of Ms Jarmain and Ms Towey also highlighted Mr Willmot’s propensity to misrepresent his symptoms. This was again emphasised by the observations of his behaviour in the surveillance footage.

[82] It also rejects the suggestion it had an obligation to consider and evaluate conversion disorder as a potential diagnosis. It had instead received a report from an independent expert which had concluded that Mr Willmot was feigning his symptoms. Those allegations were put to him. He had been provided with an extended period of time to respond to or contest those allegations. He could have, at that point, provided evidence of a diagnosis of conversion disorder. He did not do so, and he has not done so at any time since.

[83] As indicated, the authorities have established that the reason for dismissal must be a valid one, based on an objective analysis of the relevant facts. It must also be “sound, defensible and well founded.” The evidence indicates that BSL went through an extensive process over a long period of time before it finally made the decision to dismiss Mr Willmot. The evidence also indicates that BSL was initially of the view that he had sustained an injury at work and had then made a legitimate work injury claim. This may well have been a correct assessment at that time. However, the lack of progress in recovery, and the apparent lack of any physical cause of injury, created doubts about the validity of the claims and led to a series of further processes being put in train. These included the independent medical assessments, the decision to initiate video surveillance, the further medical assessments of that surveillance footage, and the extensive opportunities that were then provided to Mr Willmot to respond to the allegations made about his conduct. His failure to provide an appropriate response to those allegations ultimately led to the decision to dismiss him.

[84] As indicated, an independent medical report was obtained from Associate Professor Brazenor as part of this process. The evidence indicates that he is an acknowledged expert in his field and his expertise as a neurologist is not in contest. He provided an initial report following a comprehensive medical examination which concluded that Mr Willmot was feigning his symptoms. He was subsequently asked to provide a further assessment after viewing surveillance footage of Mr Willmot. He rejected the suggestion in cross examination that his description of Mr Willmot’s “maintenance of his ruse” was a value judgement which had clouded his thinking, stating instead that it was an appropriate diagnosis of the patient that presented to him.

[85] Extracts from the surveillance footage were also shown during the course of Associate Professor Brazenor’s examination in chief. His observations when viewing that footage were consistent with his earlier diagnosis of feigned symptoms.

[86] Mr Willmot submits in response that BSL placed too much reliance upon the opinion of Associate Professor Brazenor and should also have had regard to the reports obtained from his other treating practitioners, including Doctor Frayne, before it decided to terminate his employment. However, the evidence indicates that BSL did take account of these other medical reports before that decision was made. They were not provided directly by Mr Willmot but were instead obtained by BSL after it met with him on 28 October 2016 and he requested they be taken into account. Mr Taylor’s evidence makes clear that each of these reports was then considered but it was decided that they failed to provide any other relevant diagnosis of his condition.

[87] Mr Willmot places particular emphasis on the medical reports provided by Doctor Frayne. As indicated previously she was not called as a witness. However, it was indicated in submissions that she examined Mr Willmot on three occasions after he was initially referred to her by Doctor Wu. The first of those occasions was on 30 May last year. Doctor Frayne came to the following conclusion in the written report she provided to Doctor Wu after that examination:

“I think his presentation is genuine. I suspect he has had a spinal cord infarct with variable recovery. The prognosis at this time is poor, with further recovery unlikely. Additionally his obsessive exercise and use of axillary crutches as producing secondary injury to the wrist and shoulders.

The mechanism is unclear. I think it is reasonable to repeat his imaging and to arrange sensory evoked responses.” 50

[88] Doctor Frayne’s final report was dated 17 November and was prepared at the request of the Accident Compensation & Conciliation Service after she had examined Mr Willmot earlier that day. Doctor Frayne did note in that report that “The power in his right leg is improved.” She also noted that “On reviewed he ceased using a wheelchair and was walking with crutches. There was more ankle movement when walking.” 51

[89] However, she also stated:

“He had a further MRI scan of the cervical, thoracic and lumbar spine which was showed no compression or other fracture. No epidural haematoma was identified and the cord appeared normal throughout. There was no evidence of any abnormal vasculature in the epidural space or around the cord. Sensory evoked potentials from the lower limbs was also normal.” 52

[90] She continued:

“There is no imaging for electrophysiological for his leg weakness. There has been some inconsistencies in examination. There is certainly no medically or surgically treatable course.” 53

[91] She also made the following statement in her report which Mr Willmot has repeatedly made reference to in his submissions:

“It is my impression that there is likely a conversion disorder.” 54

[92] Mr Willmot submits that after BSL obtained this report it was incumbent on it to explore the possibility that he was suffering from conversion disorder. A number of points can be highlighted in response. Firstly, Doctor Frayne did not have the opportunity to view the surveillance footage of Mr Willmot, and to contrast how he presented in that footage with the way in which he presented when she examined him in her rooms. As the evidence of Associate Professor Brazenor suggests her observations may well have been different if she had that opportunity.

[93] Secondly, Doctor Frayne’s reference in her report to conversion disorder falls well short of what might be described as a diagnosis. She simply refers instead to her “impression” that “there is likely a conversion disorder.” The uncontested evidence of Associate Professor Brazenor provided during the course of his examination in chief in fact indicates that a diagnosis of conversion disorder can only be made when based on the combined opinions of both a neurologist and a psychiatrist. I am not satisfied that the reference to conversion disorder in the report from Doctor Frayne created an obligation on BSL to do anything further. It had already obtained an expert medical opinion. In the absence of clear evidence of another diagnosis it cannot be expected to chase every rabbit down every burrow. If Mr Willmot was suggesting that another diagnosis was possible to explain his condition it was up to him to provide evidence of that diagnosis. He was provided with adequate opportunities by BSL to do so, and Doctor Frayne’s final examination of him was carried out more than a month before he was notified of the decision to terminate his employment. However, he did not do so. In addition, as indicated already Doctor Frayne did not provide a witness statement in these proceedings, and was not called as a witness. I am satisfied that the Commission is entitled to conclude in response that Doctor Frayne was not called because her evidence would not have assisted Mr Willmot.

[94] I simply make the following observations, in conclusion, in regard to the suggestion that Mr Willmot suffers from conversion disorder. There is no evidence before the Commission indicating that he has been diagnosed with what is apparently a very rare condition. In addition, Associate Professor Brazenor indicated in his examination in chief that a diagnosis of conversion disorder can only be made when based on the conclusions of both a psychiatrist and a neurologist. Therefore, he could not, by himself, make a diagnosis of conversion disorder. However, based on his examination of Mr Willmot, and his other observations of him, Associate Professor Brazenor concluded that Mr Willmot was not suffering from conversion disorder. That, of itself, is sufficient to rule out any such diagnosis. I am satisfied that any further consideration of issues to do with conversion disorder, based on the evidence now before the Commission, cannot be taken any further.

[95] In terms of the existence of a “valid reason” I have obviously placed considerable weight on the role and evidence of Associate Professor Brazenor. However, I am also satisfied that his conclusions about the injuries being feigned are borne out by the evidence of other witnesses. Ms Jarmain’s observations of Mr Willmot are at odds with how he claims he presented to her at the time. Ms Towey’s evidence is also significant. Her observations of Mr Willmot in a chance meeting are consistent with the evidence that he was feigning his injuries. This encounter occurred shortly after Mr Willmot’s examination by Associate Professor Brazenor, when he presented as a person who could not use his legs to stand up when sitting, and was barely able to use his legs at all without assistance. Mr Willmot attempted in his submissions to downplay the significance of Ms Towey’s evidence by suggesting that his encounter with her was not actually a chance meeting, but was somehow contrived. However, this suggestion is not substantiated by any of the available evidence.

[96] Mr Willmot’s own evidence was also instructive. For example, I am satisfied that he clearly intended to conceal the fact that he had driven from his home at Mount Martha to the examination at Associate Professor Brazenor’s rooms in Richmond, a distance of more than 70 kilometres, involving driving time of at least 1 hour. He was only prepared to admit in cross examination that this was the case when presented with clear evidence that he had in fact driven himself. This provides yet another example of his propensity to exaggerate his condition and ultimately to mislead.

[97] As a consequence of this and other examples Mr Willmot was an unconvincing witness at times during what was a lengthy cross examination. He appeared to only make acknowledgements when left with no option but to do so. On other occasions he was reluctant to provide direct answers. He also had difficulty with his recollection of events. These deficiencies involved matters of considerable significance in terms of his claimed incapacity.

[98] In addition, there is no expert evidence available to the Commission to indicate that the gap in perception about how he presented at different times, or the so-called “apples and oranges” comparison as it has been described, can be explained by Mr Willmot’s use of various aids or augmentations. No expert evidence was provided to explain how this might occur. In any case some of the surveillance footage indicated that Mr Willmot was not using any of these aids at the time.

[99] It is also suggested that BSL could have overcome this perception gap if Mr Taylor and Mr Wallington had been prepared to visit Mr Willmot at home to enable them to observe him in his natural or unaided state. In my view they had no obligation to do so and, in any case, the suggestion is misguided. Mr Taylor and Mr Wallington are not medical experts. Mr Willmot could have presented to them in any way that he chose if they had visited him at home. Given their lack of medical expertise Mr Taylor and Mr Wallington would have been in no position to judge whether he was presenting genuinely, or whether he was endeavouring to feign or mislead. I am not satisfied, in conclusion, that any such visit could have assisted in any way, or that BSL had any obligation to arrange such a visit.

[100] It has also been suggested that BSL’s approach in dealing with Mr Willmot was underpinned by a deliberate strategy designed to result in the termination of his employment, and he was therefore denied a fair and just process. It is difficult to find any evidence that might support this submission. Prior to sustaining the injury Mr Willmot appears to have been a valued employee, and no issues have been raised about his performance or behaviour up to that point. He also appears to have been provided with a significant degree of support after he sustained the injury. Mr Taylor’s evidence indicates that he visited him in hospital on two occasions, and the evidence of Mr Wallington and Ms Towey indicates they were concerned about him, and how he was progressing in his recovery. Mr Willmot also worked for a time with a return to work coordinator with the intention of developing a plan that would enable him to return to work. He was also provided, by any standard, with an extended period of time and numerous opportunities to respond to the concerns that eventually began to develop about how he was progressing in his recovery. In summary, the evidence does not provide any indication of the pursuit of a strategy by BSL designed to culminate in the termination of Mr Willmot’s employment.

[101] I am satisfied, in conclusion, that BSL carried out a thorough and considered process in dealing with Mr Willmot following the injury he sustained, and its subsequent decision to terminate his employment can be said to be sound, defensible and well founded. I am satisfied that it had a valid reason for dismissal.

(b) whether the person was notified of that reason

[102] This does not appear to be at issue. Mr Willmot’s work injury claim was terminated in June last year. He was advised in a meeting in July that BSL had concerns about the content of a medical report it had received and how he presented, by way of contrast, in surveillance footage. Further meetings then took place with him to discuss these circumstances. He was told his employment might be terminated if he was not able to provide a satisfactory explanation in response to the allegations made against him. The reasons for his subsequent termination were confirmed in the termination letter provided to him on 16 December 2016.

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

[103] As indicated Mr Willmot’s work injury claim was terminated in June last year. A meeting was held in July to discuss why that decision had been made. Mr Willmot then provided a written response to the allegations made in that meeting. This was received on 3 August. A further response was received from him on 12 September after he was provided with additional time to respond. Another meeting with him took place in late October. Further reports were then obtained from various health professionals following that meeting. These circumstances are detailed in the evidence provided by Mr Wallington. I am satisfied in response that Mr Willmot was given every opportunity to respond to the reasons related to his conduct.

(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

[104] There is no evidence of any refusal by BSL, unreasonable or otherwise, to allow Mr Willmot to have a support person present in any discussions relating to his dismissal. The evidence indicates that he attended several meetings together with a support person.

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

[105] This consideration is not relevant. Mr Willmot’s termination was not due to unsatisfactory performance.

(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

[106] BSL is obviously a large and well-resourced organisation. As such, it can be expected that it would follow appropriate procedures in carrying out Mr Willmot’s dismissal from his employment. The evidence indicates that this expectation has been met.

(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;

[107] This consideration is not relevant. BSL clearly has dedicated human resource management specialists and expertise.

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

[108] I am not aware of any further issues that need to be considered in this context.

Conclusion

[109] Mr Willmot has evidently been through some difficult times in the past 18 months. It is obviously unfortunate that he sustained an injury at work. He also had a significant family bereavement in the early part of last year. He was apparently involved in various business activities with his brother, which ended with his death. There is no joy in any of that.

[110] However, I have had regard to the evidence and the submissions that have been provided by the parties in this matter. I have also had particular regard to the considerations in section 387 that I am required to take account of. I am not satisfied in all the circumstances that it can be concluded that Mr Willmot was unfairly dismissed in terms of section 385 of the Act. It follows that his application must be dismissed.

COMMISSIONER

Appearances:

P Willmot for the Applicant.

A Pollock of Counsel for the Respondent

Hearing details:

2017.

Melbourne:

April 24, 26, 27, 28;

June 16.

Final written submissions:

Applicant’s final written submissions received 18 May 2017.

Respondent’s final written submissions received 2 June 2017.

Applicant’s final written submissions in reply received 8 June 2017.

1 Exhibit RW2.

2 Fair Work Act 2009 (Cth) s 387.

3 Exhibit RW3.

4 Ibid RW3.

5 Ibid at [6].

6 Transcript at PN 420.

7 Exhibit RW4.

8 Ibid.

9 Transcript at PN 575.

10 Transcript at PN 495.

11 Transcript at PN 611 – PN 618.

12 Transcript at PN 80.

13 Applicant’s written closing submissions, dated 18 May 2017 at [1].

14 Ibid at [2].

15 Ibid at [2].

16 Ibid at [3].

17 Exhibit RW2.

18 Applicant’s written closing submissions, dated 18 May 2017 at [8].

19 Ibid at page 1.

20 Ibid at [11].

21 Ibid at [19].

22 Exhibit BSL3 at attachment GB-2.

23 Applicant’s written closing submissions, dated 18 May 2017 at [11].

24 Exhibit RW2.

25 Exhibit BSL7 at [30].

26 Ibid at [80].

27 Exhibit BSL3 at [13].

28 Ibid at [24]-[25].

29 Ibid at [27]-[50].

30 Transcript at PN 2657.

31 Exhibit BSL5 at [8].

32 Ibid at [9].

33 Ibid at [11].

34 Ibid at [12].

35 Ibid at [14]

36 Respondent’s written closing submissions, dated 2 June 2017 at [8].

37 (1958) 101 CLR 298.

38 Respondent’s written closing submissions, dated 2 June 2017 at [66].

39 Ibid at [67]-[69].

40 Ibid at [71].

41 (1995) 185 CLR 410.

42 Ibid at 465.

43 [2011] FWAFB 7498.

44 Ibid at [20].

45 [2011] FWAFB 1166.

46 Ibid at [24].

47 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.

48 Ibid at [19].

49 (1995) 62 IR 371 at 373

50 Exhibit RW2.

51 Ibid.

52 Ibid.

53 Ibid.

54 Ibid.

Printed by authority of the Commonwealth Government Printer

Robin Willmot v BlueScope Steel Limited