Scott Irving v MacPhees Pty Ltd T/A MacPhees for the Wine Enthusiast
[2010] FWA 8951
•26 NOVEMBER 2010
[2010] FWA 8951 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Irving
v
MacPhees Pty Ltd T/A MacPhees for the Wine Enthusiast
(U2010/10328)
COMMISSIONER BISSETT | MELBOURNE, 26 NOVEMBER 2010 |
Application for unfair dismissal remedy.
[1] This is an application by Mr Scott Irving (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Irving was employed by MacPhees Pty Ltd T/A MacPhees for the Wine Enthusiast (MacPhees) (the Respondent) in positions associated with the sale of wine and management of their retail outlet.
[3] The matter was not settled at conciliation.
[4] Mr Irving was represented by Mr Pollard. The Respondent was represented by Mr McKenna.
[5] Mr Irving appeared as a witness on his own behalf and Mr MacPhee was a witness for the Respondent.
Background
[6] Mr Irving was employed by the Respondent in October 2007 in the position of Wine Sales Manager and Shop Sales Manager. He was, at times during his employment, responsible for ‘overseeing and managing the day to day running of the South Melbourne store...preparing and maintaining client records, general customer service, preparing wine events and store promotions, stock management, reporting to the Directors and wine retail sales.’ 1 Mr Irving had ‘an excellent technical knowledge and understanding of wine’.2 Mr Irving was employed on a salary of $70,000 per annum plus superannuation.3
[7] The retail store, at the time of Mr Irving’s employment, sold wine accessories and became a wine retail store about 12 months later. 4
[8] In October 2008 Mr Irving was given a pay rise to $80,000. He was also provided with details of an incentive plan in which he could participate. 5
[9] In September 2009 Ms Courtney Symes was employed to work three days a week in the retail store. 6
[10] In March 2010 Mr Irving was advised by the Directors that they wanted him to focus more on wine sales. The essential goal ‘was to ensure financial success of the retail wine side of the business and prove that the “wine advisory model” could be developed to a high level.’ 7 To facilitate this a new ‘Role Guidance & Objectives’ statement for the Wine Sales Manager/Store Backup position was developed and discussed with Mr Irving in late April/early May 2010. Mr Irving signed off on this statement on 28 May 2010.8 Mr Irving commenced in this role formally in late April 2010.9
[11] In late April 2010 Ms Symes commenced full time employment in the store to enable Mr Irving to concentrate on the agreed duties. 10
[12] On 16 June 2010 the Respondent held a management meeting and discussed the wine sales figures from the store. Mr MacPhee of the Respondent recommended that the position of the Applicant be made redundant. This decision was made because of poor sales figures and because the business could no longer ‘justify the continued employment of a person on $80,000 per annum, plus costs.’ 11
[13] On 21 June 2010 Mr MacPhee met with Mr Irving. Mr Irving was advised that, whilst no final decision had been taken, the Respondent was considering making Mr Irving’s retail position redundant. Mr Irving was invited to provide any suggestions he may have had to avoid the redundancy. 12
[14] On 24 June 2010 Mr MacPhee met with Mr Irving at about 9.00am and asked if he had any suggestions or alternatives to redundancy. Mr Irving did not consider it was up to him to provide suggestions on how the redundancy might be avoided. 13
[15] At 4.00pm or 5.00pm Mr MacPhee again met with Mr Irving and advised that a definite decision had been taken to make his position redundant. 14
The evidence
Mr Irving
[16] Mr Irving’s evidence is that he has extensive experience in a range of areas associated with wine, including winemaking and has a sophisticated palate. Prior to the changes in April 2010 his duties included general store management, stock ordering, maintenance of client records, general customer service including educating clients, advice on wine accessories, arranging wine tastings - drawing on his knowledge of wine and palate - and wine sales. The preparation of wine events and store promotions was part of his duties post April 2010. 15
[17] He was the driving force behind the store moving into the sale of packaged wine and for a period of time had autonomy over the selection of wines for sale. 16
[18] Mr Irving says he was good at his job and clients came back specifically to see him.
[19] In March 2010 the Directors of MacPhees asked him to focus more on wine sales, following which discussions on the role took place. 17 A draft position description was drawn up, to which he proposed a number of changes which were accepted.18 The position description provided for a greater focus on wine sales.19
[20] Mr Irving agreed that Ms Symes commenced working full time in the store in April 2010, and that while she had a background in retail, she generally did not have Mr Irving’s reputation, knowledge and skill (in the wine industry). 20 He understood that Ms Symes had been promoted to his previous position.21
[21] Mr Irving agreed that wine sales figures for May and June 2010 were down on the same months in 2009. 22
[22] Mr Irving does not believe the termination of his employment was a genuine redundancy. 23 He believes that his employment was terminated because of his absences from work due to family responsibilities,24 although he agrees that he was not refused flexibility at work to meet his family commitments including leaving work early to pick children up or meet with lawyers. His evidence is however that he got a ‘vibe’ that the Respondent was not happy with the flexibility he sought.25
[23] Mr Irving did not believe it was his responsibility to put forward ideas on how to keep his position, particularly when he ‘knew that a decision had already been made.’ 26
[24] Mr Irving’s evidence is that he would have considered other positions in the organisation, though probably would not take a warehouse position and would not accept a retail wine sales role at a salary of $45,000. 27
[25] Mr Irving maintains that he did not delete company emails from his work computer, although he did delete private emails that were on his work computer. 28
Mr MacPhee
[26] Mr MacPhee’s evidence is that the MacPhees business consists of four areas: wine storage, design and construction of wine cellars, importation and distribution of Eurocave wine cabinets and a retail store, and that he employs a total of 9 staff. 29
[27] His evidence is that the retail store has not been profitable since its opening in 2007, though he has persevered with it. 30 He received advice on a number of occasions from 2009 to mid 2010 that he needed to address the profitability of the store.31 He did not immediately seek to reduce labour costs as a result of the advice he received, as he was passionate about the wine advisory model and he did not want to abandon what had been put into the business. Ultimately he determined to employ more staff in the store (Ms Symes) to free up Mr Irving to concentrate on wine sales.32
[28] Mr MacPhee maintained in his evidence that there was nothing new in Mr Irving’s role post April 2010, 33 just that he could now concentrate on the wine advisory role. The focus on wine sales came about as soon as the license to sell packaged wine was obtained.34 Following the formalisation of the position description in 2010 wine sales did not improve in May and June on the same period for the previous year.35
[29] As part of the discussion on the position description in April 2010, Mr Irving was given the budget figures 36 and asked to provide his comments. The expectation was that, given Mr Irving would be ‘one hundred per cent focused on wine sales’, the sales figures would improve.37 The budget figures provided to Mr Irving at this time were not new, as they had always had informal budgets and targets for what the company wanted to sell in wines.38
[30] Mr Irving was not privy to the management meeting on 16 June that discussed the future of his position. At this meeting Mr MacPhee had made up his mind that the role should be made redundant but not that Mr Irving would no longer be employed. 39 Mr MacPhee had no option but to make Mr Irving’s role redundant as he could no longer afford to pay someone $80,000 per annum for the low level of revenue being generated. By this stage the viability of the retail store was affecting the viability of the business. The business had no choice but to give up on the wine advisory model.40
[31] Mr MacPhee’s evidence is that Mr Irving was not terminated due to his performance against the budget figures but because the business could not afford to keep paying him at the level of remuneration he was receiving. 41
[32] Some of the functions Mr Irving had been responsible for are being performed by Ms Syme, but the store and/or Ms Syme no longer do wine tastings, wine events, store promotions, specific email offers to clients, bulk emails with respect to wine matters, attend wine tastings or meet with wholesale representatives. A significant amount of the work that Mr Irving did has been discontinued. 42 Whilst Ms Syme does some of the work previously done by Mr Irving, this is at a ‘low level’.43
[33] Mr MacPhee did not realistically expect that Mr Irving would accept redeployment into a $40,000 store manager position. 44
[34] Mr MacPhee’s evidence is that he had concerns from time to time about Mr Irving taking time off for his family responsibilities but these related to notification and the completion of leave forms. 45 Mr Irving’s family responsibilities had nothing to do with the termination of his employment.46
[35] Mr MacPhee gave further evidence that, following the termination of Mr Irving’s employment, he inspected the work computer used by Mr Irving and discovered that nearly all the ‘sent’ emails had been deleted. He further said that he sent the lap top to a data recovery company who were unable to recover any emails. 47 Mr MacPhee did not produce a copy of the correspondence from the recovery company.48
[36] There was no written policy of the company specifying a requirement to send emails though the ‘Qdos’ system. 49
Submissions
The Applicant
[37] The Applicant submits that the termination of his employment was not a case of genuine redundancy. In addition he submits that the Respondent has not followed the Small Business Fair Dismissal Code in effecting the termination.
[38] On the matter of redundancy, the Applicant submits that the duties of his job still exist and are currently being undertaken by Ms Syme. Given this is the case, the redundancy cannot have been genuine.
[39] In support of this the Applicant referred me to the decision of Bray CJ in The Queen v Industrial Relations Commission of South Australia Ex-parte AMSCOL 50 where his Honour found that
...the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone. 51
[40] In the same matter Bright J held that ‘in its widest form the concept of redundancy connotes that an employee becomes redundant whenever...his employer no longer desires to have performed the job which that employee was doing.’ 52
[41] The Applicant also referred me to the decision in Jones v Department of Energy and Minerals 53 and in Quality Bakers of Australia Limited v Goulding54 in support of his position. Further he submits that, even if some of his job is no longer required to be done, too much of his job remains to be able to say the position was redundant. Further, he argues that there can be no redundancy if the reason for the termination is a loss of confidence by the employer in the employee (Fosters Group Limited v Wing55).
[42] The Applicant submits that the decision to terminate his employment was made by the Respondent at the management meeting on 16 June 2010. The Respondent cannot rely on the failure of the Applicant to meet budget figures, in the context of them only having been given to the Applicant six weeks prior to his termination, as a valid reason for the termination of his employment. The Applicant was given no opportunity to reach the budget figures in the time provided.
[43] On the further submission of the Respondent that the Applicant had deleted emails from the Respondent’s computer, the Applicant submits that the Respondent’s evidence on this should be disregarded and such a charge cannot be sustained.
[44] The Applicant submits that there was not consultation with respect to the redundancy and any consultation said to have occurred was a sham. This indicates that the Applicant was not given a fair go all round.
[45] Further, the Applicant submits that the Respondent has failed to comply with the Small Business Fair Dismissal Code and the termination was inconsistent with that Code.
Respondent
[46] The Respondent submits that for there to be a genuine redundancy two things are required - firstly that the job is no longer required to be performed and secondly that this is for a genuine operational requirement. On the first matter the Respondent referred me to the decision of a Full Bench of Fair Work Australia in Ulan Coal Mines Limited v Howarth and others 56 (Ulan Coal). On the second matter the Respondent submits that it is evident that the business model for the retail store was not viable.
[47] It is important in the Respondent’s submission that, as was seen in Ulan Coal, a redundancy may be genuine in circumstances where there is a redistribution of the functions performed. Not all of the Applicant’s functions are however being performed. Those functions that are still being performed in the retail area have been taken over by Ms Syme, with Mr MacPhee and perhaps Mrs MacPhee taking over one or two other functions. Ultimately however, the evidence shows that the high end wine function which was a key part of the Applicant’s role is no longer being pursued.
[48] The functions and duties of Mr Irving changed when the retail store gained a liquor licence and a significant part of his job became wine sales. The time devoted to wine sales increased, on the Respondent’s submission, when Ms Syme commenced part time in September 2009 and then again when she moved to full time in April 2010.
[49] The duties performed by Mr Irving at the time his employment was terminated were as the position description he signed in May 2010. 57 This is the position that must be compared to the duties undertaken by Ms Syme. Alternatively, if the comparison is with Mr Irving’s functions pre-April 2010, then the evidence is that in that role he was utilising skills, experience, knowledge and credibility that he had obtained in his years in the wine industry.
[50] The obligation to consult under the relevant award did not arise until a definite decision had been made by Mr MacPhee. Having determined that the position was redundant, Mr MacPhee then consulted Mr Irving. He provided Mr Irving with three days in which to consider how a redundancy could be avoided. Mr Irving chose not to put forward any proposals.
[51] There was only one position available to Mr Irving to be redeployed into and that was the position filled by Ms Syme at $42,000 per annum. Mr Irving gave evidence that he would not be interested in such a position.
[52] With respect to the Small Business Fair Dismissal Code, the Respondent submits that under the Code there was a valid reason for the termination (if the redundancy is not made out) relating to the deletion of emails.
[53] On this alternative argument, the Respondent submits that there is direct evidence from Mr MacPhee with respect to the inspection of the computer. That the information with respect to the deletion of emails only became apparent after the termination is no impairment to the consideration of that as a valid reason for the dismissal (see Lane v Arrowcrest 58and Concut v Worrell59).
Legislation
[54] The Act defines unfair dismissal as:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[55] In this case the Respondent claims that the dismissal was a genuine redundancy.
[56] Genuine redundancy is defined in the Act:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
[57] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548. The following are possible examples of a change in the operational requirements of an enterprise:
• a machine is now available to do the job performed by the employee;
• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.
[58] If the Applicant’s dismissal was a genuine redundancy then he cannot have been unfairly dismissed. It is therefore necessary that that question be determined first.
[59] A job can be excess to requirements in circumstances where not all of the functions of the job are excess to requirements. In Ulan Coal, a Full Bench of Fair Work Australia considered the use of the expression ‘a person’s job’ in the Act and what this meant in the context of a genuine redundancy:
It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
In Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” (at par [27])60
[60] The implication of the decision in Ulan Coal is that it is not necessary that all of Mr Irving’s functions be redundant for it to be that his job is no longer required to be performed by anyone. It is legitimate that, in considering the operational needs of the business, parts of Mr Irving’s job may no longer be required to be performed but other parts of his job have been taken over by others. This is supported by the Explanatory Memorandum to the Fair Work Bill 2008. It is incorrect to assume that the requirement that the job is no longer required to be performed means that every function of that job is no longer required to be performed.
Consideration
[61] At the time his employment was terminated, Mr Irving’s job was as detailed in the Role Guidelines and Objectives for the Wine Sales Manager/Store Backup signed by him on 28 May 2010. 61 Mr Irving had been consulted on this job description and had provided amendments to the first draft provided to him by Mr MacPhee.62 On the basis of the evidence I find that he was undertaking this role from April 2010. Further, I find that a substantial part of Mr Irving’s role from the time the store obtained the liquor licence in about September 2008 was wine sales.
[62] The ‘role description summary’ for Mr Irving’s position was to ‘ensure financial success of retail wine and prove that the “wine advisory model” can be developed to a high level. In addition, backup for store.’ 63 A perusal of the detailed functions for the role indicate an emphasis on wine retailing, client records and wine event and promotions. Direct store activities in the main relate to ensuring the wine stock is properly acquitted, wine is properly displayed and to provide coverage in store during lunch and holiday/sick leave of the store manager and on Saturdays. It is apparent that Mr Irving held this position because of his extensive knowledge of wines and the wine industry. He was the reason many clients returned to the store.
[63] At the time he was employed in 2007, Mr Irving’s responsibilities included the day to day running of the store, maintenance of client records, promotional activities and stock management. At this time Ms Syme was not employed and the store did not have a packaged liquor licence. Around September 2008 the store obtained its packaged liquor licence. Mr Irving’s duties were then:
- managing the running of the store;
- maintaining client records;
- customer service;
- stock management;
- wine events and store promotions;
- wine retail sales.
[64] In September 2009 Ms Syme started to work three days per week and in April 2010 she commenced working full time. In April 2010, when Mr Irving had taken up his duties aligned with the “wine advisory model”, it is evident and I find that the basic retailing (excluding high end wine sales) and management of the store were taken over by Ms Syme.
[65] Ms Syme’s duties post Mr Irving’s departure consist of basic retail functions. She does not do wine tastings, send special email offers to clients, bulk emails to clients about wine related matters, meet wholesale sales representatives, attending trade tastings, or sell wine wholesale. 64 Yet these were functions Mr Irving performed.
[66] On the evidence I find that the substantial portion of the duties performed by Mr Irving at the time his employment was terminated were not taken over by Ms Syme.
[67] I find that the substantial portion of the duties performed by Mr Irving are no longer being performed by anyone within MacPhees.
[68] The reason the duties that Mr Irving was performing are no longer performed is because the business could not sustain these activities. The advice to Mr MacPhee from 2009 was that his business could not sustain Mr Irving’s level of remuneration given the amount of revenue generated. Mr MacPhee had two options when this advice was first provided - to increase staff to allow Mr Irving to concentrate on the wine sales part of the business or to cease that part of the business. Mr MacPhee’s commitment to the wine advisory model led him to attempt to organise his business in such a way that he could keep Mr Irving. It eventuated that these changes did not generate sufficient income from wine sales to allow them to be maintained. From an operational perspective Mr MacPhee took the decision that the business could not support the duties being undertaken by Mr Irving.
[69] I find that the Respondent no longer required the job being done by Mr Irving to be done by anyone and that this came about because of changes to the operational requirements of the business.
[70] Having reached the decision that he may have to make Mr Irving’s position redundant, Mr MacPhee raised the issue with Mr Irving and sought his views on how this may be avoided. Mr Irving’s view was that it was not up to him to come up with solutions to the problem.
[71] No submissions were put as to the relevant award that would cover Mr Irving’s position, nor were submissions made by the Applicant as to how this requirement has not been met. In any event the consultation provisions in each of the modern awards are similar. Those provisions require that an employer advise employees of the change, the effect the change may have and what measures have been taken to mitigate the effect. Relevant information must also be provided.
[72] The Respondent is a small business. Whilst this does not obviate the need to consult with employees on changes in the business, it would be wrong in my view to confuse the need to consult with a complex process over a lengthy period of time. There is, in my opinion, evidence of the employer consulting with Mr Irving over changes to the business - and Mr Irving’s role - designed to help that side of the business grow. When this failed Mr Irving was advised his position might be made redundant and was asked his views. Mr Irving chose not to engage in this process. Mr Irving cannot refuse to engage in discussion on how the redundancy might be mitigated and then claim he was not consulted. For consultation to be meaningful both parties must engage in the process. Mr Irving was given the opportunity to engage and he chose not to. As a result his position was made redundant and his employment terminated.
[73] I find that the Respondent complied with its requirements to consult under the relevant award.
[74] There were no redeployment opportunities available to Mr Irving. As he himself said, he would not work in the warehouse and he would not accept a position at $45,000 per annum. I find that there was no prospect of redeployment.
[75] Whilst it is not necessary that I do so, given my findings above, it is appropriate to deal with the alleged deletion of emails from the work computer by Mr Irving. The allegation is serious. Mr MacPhee maintains that following the termination of Mr Irving’s employment, he discovered that most of the ‘sent’ emails had been deleted from the computer. Mr Irving agreed that, in responding to emails from clients, he did respond from his work email address (and hence those emails would be in the ‘sent’ box) and not through the ‘Qdos’ system. However, the Respondent did not provide any evidence, except the statement of Mr MacPhee, that the emails had been deleted. Evidence as to the efforts of a data recovery company was not put in the proceedings.
[76] On the basis of the evidence I do not find that Mr Irving deleted emails from the work computer beyond his personal emails which he agreed he had deleted.
Conclusion
[77] I find that Mr Irving’s dismissal was a case of genuine redundancy. As such, Fair Work Australia does not have jurisdiction to hear his application for unfair dismissal.
[78] The application is dismissed. An order to this effect will be issued.
COMMISSIONER
Appearances:
C. Pollard for the Applicant.
J. McKenna for the Respondent.
Hearing details:
2010.
Melbourne:
12 November.
1 Exhibit A1 paragraph 4.
2 Exhibit R1 paragraph 13.
3 Exhibit R1 attachment CM2; Transcript PN131.
4 Transcript PN14.
5 Exhibit R1 attachment CM3.
6 Exhibit R1 paragraph 23.
7 Exhibit R1 paragraph 26; Transcript PN231.
8 Exhibit R1 paragraphs 27-29; Transcript PN244.
9 Transcript PN249.
10 Transcript PN246; Exhibit R1 paragraph 27.
11 Exhibit R1 paragraph 31.
12 Exhibit R1 attachment CM9; Transcript PN370-3, 376-7.
13 Transcript PN376.
14 Exhibit R1 paragraph 35.
15 Transcript PN193.
16 Transcript PN201-2.
17 Exhibit A1 paragraph 7; Transcript PN233.
18 Transcript PN241-3; See also Exhibit R1 attachments CM5 and CM6.
19 Transcript PN 244.
20 Transcript PN270.
21 Exhibit A1 paragraph 14.
22 Transcript PN296.
23 Exhibit A1 paragraph 13
24 Exhibit A1 paragraph 14.
25 Transcript PN406-12.
26 Transcript PN376.
27 Transcript PN429, 440.
28 Transcript PN328-9, 343.
29 Exhibit R1 paragraph 9.
30 Transcript PN497.
31 Transcript PN501.
32 Exhibit R1 paragraphs 25-26.
33 Transcript PN508.
34 Transcript PN588.
35 Transcript PN512.
36 See Exhibit R1 attachment CM5.
37 Transcript PN517.
38 Transcript PN552.
39 Transcript PN534, 539.
40 Transcript PN549.
41 Transcript PN567.
42 Transcript PN589-611.
43 Transcript PN597.
44 Transcript PN566.
45 Transcript PN582.
46 Transcript PN584.
47 Exhibit R1 paragraphs 44-45.
48 Transcript PN575-6.
49 Transcript PN577-8.
50 1977 16 SASR 6.
51 1977 16 SASR 6, 8.
52 1977 16 SASR 6, 27.
53 (1995) 60 IR 304.
54 (1995) 60 IR 327.
55 [2005] VSCA 322.
56 [2010] FWAFB 3488 (10 May 2010).
57 Exhibit R1 attachment CM6.
58 (1990) 27 FCR 427, 456.
59 (2000) 176 ALR 693, [27]-[29].
60 [2010] FWAFB 3488, [17]-[18].
61 Exhibit R1 attachment CM6.
62 Exhibit R1 attachment CM5.
63 Exhibit R1 attachment CM6.
64 Transcript PN605.
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