Terence Michael Cooper v Brisbane Bus Lines Pty Ltd
[2011] FWA 1645
•24 MAY 2011
[2011] FWA 1645 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Terence Michael Cooper
v
Brisbane Bus Lines Pty Ltd
(U2010/12410)
COMMISSIONER SIMPSON | BRISBANE, 24 MAY 2011 |
Termination of employment -harsh unjust and unreasonable - compensation ordered
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Terence Michael Cooper (“the Applicant”) who claimed he had been unfairly dismissed by Brisbane Bus Lines Pty Ltd (“the Respondent”).
[2] The application was filed on 10 September 2010 and a conciliation conference was conducted on 6 October 2010, which was not successful in resolving the matter.
[3] Directions were issued for the hearing of the substantive matter and were complied with by both parties.
[4] On 13 December 2010 the Applicant wrote to Fair Work Australia (“FWA”) seeking orders requiring the attendance of Ms Michelle Enchelmaier and Ms Barbara Hamilton at the hearing of the matter. The Applicant also sought an order for the production of documents relating to the investigation referred to the Respondents submission. The orders sought were issued on 14 December 2011. No documents were produced on the basis that the Respondent said none existed. 1
[5] A form 53 - Notice of Representative commencing to Act was filed by Mr Christopher Terence Hunt on behalf of the Applicant on 17 December 2010. On the same date two additional witness statements from Mr Angus Cunningham and Mr Leslie Wakelin were filed by the Applicant.
[6] The matter was listed for Mention on 12 January 2011 however was adjourned due to flooding affecting access to the premises of Fair Work Australia in Brisbane on that date. For the same reason scheduled hearing dates of Wednesday 19 January and Thursday 20 January 2011 were also vacated.
[7] The matter was relisted for Mention on Monday 21 February 2011 where the Respondent pressed an objection to Mr Hunt representing the Applicant at the hearing. Directions were sent out on 21 February 2011 requesting the parties provide submissions on the objection pursuant to s.596 by 25 February and I would determine the matter based on those submissions. A Decision allowing Mr Hunt to represent the Applicant in the matter was issued on 3 March 2011. 2
[8] The matter was listed for hearing on Wednesday 9 and Thursday 10 March 2011 in Brisbane. At the hearing the Applicant was represented by Mr Hunt and the Respondent represented itself with the assistance of Mr Travis Degan from the Australian Road Transport Association.
JURISDICTION - MINIMUM EMPLOYMENT PERIOD
[9] At the commencement of the hearing I sought to clarify that the Applicant qualified for protection from unfair dismissal by meeting the minimum employment period as described in s. 383 of the Act. I raised this question as the material filed by both parties made reference to a previous dismissal that had occurred in May 2010. The question of the Applicant meeting the minimum employment period had not been raised at any stage by either party.
[10] I was provided with a copy of a document headed ‘Terms of Settlement’ in the matter of Terrence Michael Cooper (Applicant) and Brisbane Bus Lines Pty Ltd (Respondent) in Case No: U2010/9508 which is a case file number for an Unfair Dismissal application made to Fair Work Australia.
[11] As it was generally agreed between the parties that the facts and circumstances surrounding this previous matter would not be relied upon by either party for the purposes of conducting their respective cases I do not intend to consider any of the previous matters that were resolved through the signing of the ‘Terms of Settlement’ document in the resolution of matter U2010/9508.
[12] The exception to my statement above of is in regard to one clause within the ‘Terms of Settlement’ document which I determined that I needed to consider in order to be satisfied that the requirements of s. 383 of the Act have been met.
[13] The relevant clause 3.3 of the “Terms of Settlement” and reads as follows;
“ The Respondent will maintain the continuity of the Applicant’s employment and will not record any information on the Applicant’s employment record pertaining to the alleged unfair dismissal or related events occurring up to and including the date of these Terms of Settlement i.e there will be a “clean slate” on the Applicant’s record relating to this matter.”
[14] The Respondent did not press a jurisdictional objection on this issue and on the basis of the “Terms of Settlement” document I accepted that the Applicant satisfied the minimum employment period. 3
BACKGROUND
[15] The Applicant is 60 years of age and married with two adult children. The Applicant stated that his Christian faith is very important to him and influences his values and ethics, and guides his day to day actions. He stated that for these reasons the allegations leading to his termination that he had been deceitful and dishonest were particularly hurtful. 4
[16] The Applicant ended his career as a painter and decorator approximately eight years ago due to chronic tendonitis. In more recent years the Applicant and his wife have sought to live on small farms, seeking to make the farm partially self sufficient whilst his wife works in an office in the city. This arrangement has required that he also seek supplementary part time employment in order to balance the farm and other work.
[17] The Applicant was employed from April 2005 until 2008 by Dayboro Bus Charters, and after that by the Respondent after it had taken over the business of his previous employer. The Respondent did not raise or rely upon any previous disciplinary matters and on that basis it was not contested that prior to events which occurred on 26 August 2010 the Applicant had a clear employment record.
[18] The Applicant attached to his statement a range of positive references from his local community including a letter from Mr Ron Enchelmaier, the former owner of Dayboro Bus Charters. The letter from Mr Enchelmaier spoke very highly of the Applicant in terms of his performance of his duties as a school bus driver.
[19] On the morning of Thursday 26 August 2010 at or around 7am in attempting to drive a school bus out of the Dayboro Depot the bus driven by the Applicant came into contact with a star picket causing a reflector on the side of the bus to be dislodged and a some minor marking or scraping on the side of the bus.
[20] The Applicant stopped the vehicle and inspected the damage to the bus. He collected the damaged reflector and proceeded to complete his school bus run that morning. The Applicant telephoned in and reported the incident at approximately 11.45am to Mr Errol Brough, the School Service Manager. Before reporting the incident the Applicant returned to the Dayboro Depot to attempt to repair the damaged reflector which he believed he had done successfully.
[21] At approximately 5pm on Friday 27 August the Applicant received a phone call from Mr Dempster, the Respondent’s Operation Manager, and a discussion occurred where he was advised he needed to complete paperwork regarding the incident and would be stood down due to the incident as standard procedure while it was investigated.
[22] On Saturday morning 28 August the Applicant drove to Enoggera Depot and collected an insurance form, filled it out and returned it on Monday 30 August 2010. At this time the Applicant was asked to remain and he subsequently attended a meeting with Mr Wright the General Manager and Mr Filippini the Human Resource Manager where the incident involving the reflector was discussed.
[23] On Tuesday 31 August 2010 at approximately 11.30am Mr Filippini and Mr Dempster visited the Applicant at his home and he was handed a dismissal letter.
THE APPLICANTS CASE
[24] The Applicants statement was admitted as exhibit 3. 5
[25] In his witness statement the Applicant referred to difficulties for an extended period before 26 August 2010 for buses in entering and leaving the Dayboro Depot because of extremely muddy conditions around the yard and near the culvert at the entrance. 6 The Applicant attached photographs to his statement7 which would indicate the Depot did appear, at least in the photographs provided, to be in a rough and muddy state as claimed.
[26] The witness statements of Mr Angus Cunningham 8 and Mr Leslie Wakelin9 were admitted into evidence uncontested.10 The statement of Mr Cunningham said that he was employed as a casual bus driver by the Respondent and on the morning of 10 August 2010 on exiting the Dayboro depot via a causeway the bus he was driving slipped into a water rut causing the bus to slide off the causeway and into the grassy area on the side.
[27] Mr Cunningham described the Depot as being in a very poor condition being flooded and having excessive muddy areas. Mr Cunningham said it took him several attempts to successfully exit the Depot. He said that he received an improvement report from the Respondent indicating he was in error and suggested he needed “further training in adverse conditions”. His statement described this as “a bit of an insult” as he had over 900 previous crossings in all conditions. He said he was not stood down and did not lose his accident free bonus which was part of the employment package for drivers employed by the Respondent.
[28] Mr Leslie Wakelin, also an employee of the Respondent provided a statement that described a driving incident when the bus he was driving slid from a causeway in wet and difficult conditions. As a result of the incident the bus suffered some damage however the Respondent took no action against him.
[29] In his statement the Applicant describes the incident occurring at approximately 6.45am on the morning of 26 August 2010. The Applicant maintained that the incident occurred mainly because of the conditions in the yard. 11
[30] As he approached the culvert the bus began to lose traction and slide to the left in the mud. He gently applied the brake but, because of a thick layer of mud on his shoes, his foot briefly slipped off the brake pedal. The result was that the bus glanced against a star picket that had been placed there to hold up temporary plastic fencing on either side of the culvert. The Applicant in oral evidence provided further description of the incident as follows.
“As I said, I got out of the bus. I picked up the piece of reflector, put it in my pocket. I stood up the star picket. I got back into the bus. I noticed that there was nothing - you know, there were no dints or anything to stop the wheels turning around or anything. So I drove on, and I went across the culvert....”. 12
[31] Ms Enchelmier, currently employed by the Respondent as a bus driver gave evidence that she spoke to the Applicant on the morning of 26 August 13 where another employee Ms Barbara Hamilton was also present.
[32] Ms Enchelmier gave evidence that she was on Ms Barbara Hamilton’s bus collecting her worksheet when the Applicant came to collect his worksheet and also got on the bus. Ms Enchelmier said that the Applicant was holding a little reflector in his hand. It was her evidence that the Applicant said “Oh no, you’ll never guess what I’ve just done. I’ve just knocked this off the bus.” Ms Enchelmier also gave evidence that the Applicant said “I’ll have to give the officer a call and report it when I finish my run.”. 14 Ms Enchelmier gave evidence that the Applicant had also said that he may be able to pop it back on. Ms Enchelmier said this conversation took place around 7.40 am.15
[33] Ms Barbara Hamilton, another driver for the Respondent gave similar evidence to Ms Enchelmier regarding the substance of a conversation with the Applicant. This evidence was generally consistent with the evidence in the Applicants statement. 16
[34] The Applicant described driving back to the Depot after completing his run, unscrewing the fitting that held the reflector to the bus and going home where he glued the reflector to the fitting. He then attended to a few other tasks including making phone calls about a health scare affecting his mother and also a split in one of the water tanks at the farm. The Applicant said he described this sequence of events to Mr Wright and Mr Filippini when he met with them on 30 August 2010. 17
[35] The Applicant then returned to the Depot and reattached the reflector. Attached to the Applicants statement 18 are photos he said he took of the reflector on the bus on 2 September 2010.
[36] The Applicant said that in the circumstances he did not feel any urgency about reporting the matter. He also said he did not have a mobile phone with him that day, the bus radio only worked intermittently and the best place to report the incident from was his home phone which he did at approximately 11.45am. 19
[37] The Applicant said when he made the call he was asked if the call was about a school related matter to which he replied yes as he assumed it was and he was put through to Mr Brough the School Service Manager. 20
[38] The Applicant said he explained what had occurred and that he had put the reflector back on the bus. The Applicant maintained that he added a comment to the effect of , “I’m letting you know in case someone saw me at the yard and wondered what I was doing - especially after all the trouble we had last time” in reference to a matter in connection with the previous dismissal. 21
[39] The Applicant described in some detail the numerous dealings he had previously had with Mr Denis Fabian who he believed had witnessed the incident at the Depot. 22 The Applicant also stated that he had told Mr Wright and Mr Filippini when he attend a meeting with them about the incident on Monday 30 August 2010 that he believed he had been seen on the morning of the 26 August at the time of the incident by Mr Fabian.23
[40] The Applicant said there was no reference to an investigation when he meet with Mr Wright and Mr Filippini 24 and he was never contacted by Mr Filippini as part of an investigation25 or been asked to submit a statement regarding the incident.26
[41] The Applicant did not believe his employment was in jeopardy before being visited by Mr Dempster and Mr Filippini at his home on 31 August 2011. 27 The Applicant also maintained something needed to done about the state of the Depot as two other buses had been involved in incidents in the Depot.28
[42] The Applicant strongly maintained that he had no reason to believe he may face dismissal over the incident following the meeting on 26 August. 29
RESPONDENTS CASE
[43] The termination letter signed by Mr Wright on behalf of the Respondent and provided to the Applicant on 31 August 2010 included the following;
“..Major issues that have become apparent are as follows;
1. A failure to report damage or incident as it occurs.
2. The carrying out of unauthorised repairs to Brisbane Bus Lines property.
3. Only reporting an incident after attempts to remove evidence of said incident had failed.
4. When reporting the incident you stated the only reason for doing so was in case it was seen by anyone.
5. The deception that appears to have taken place by your actions and your attempts to cover up the incident were deliberate...”
The letter goes on to state;
“..Integrity and honesty are key values and morals that, Brisbane Bus Lines requires and expects all its employees to have and exercise in every way whilst working in their employ. Your actions were deliberate and deceptive in nature and it is felt that you only came forward with the truth after all avenues of deception were exhausted.
Each driver is required to be able to work independently and with minimal supervision, especially those operating at remote depots, these attributes work hand in hand with the trust that Brisbane Bus Lines places in all its employees. Your actions limit the level of trust that w can have in regard to your day to day actions.
It is for these reasons that effective immediately Brisbane Bus Lines will no longer choose to engage you for casual employment.”
[44] The Respondent argued this was a case of serious misconduct. 30 The Respondent relied upon policy and procedures as the basis for ensuring minimal risk to health and safety and to protect the business.31
[45] The Respondent is subject to the Transport Operations (Passenger Transport) Act 1994. The Applicant signed and agreed to conditions of employment on commencement and also had a copy of the Drivers Manual in his possession from 30 October 2009.
[46] The Applicant had as recently as 27 July 2010 attended a two-day training course which covered among other things the requirement to immediately report an incident or accident no matter how minor or trivial.
[47] Mr Tony Wright the General Manager of Brisbane Bus Lines was called to give evidence for the Respondent. 32 Mr Wright has been the General Manager of the Respondent for 16 and a-half years.
[48] Mr Wright gave evidence that he in fact wrote the drivers manual which included the requirement for the immediate reporting of incidents and accidents. He gave two reasons in evidence that were the rationale for this. The first was that as buses were driven by different drivers it was important a driver immediately reported before such vehicle may go into the hands of another driver. Secondly operations needed to confer with the maintenance staff as to whether the vehicle should continue to be used or taken off the road. 33
[49] Mr Wright emphasised it was a managerial role to determine whether a vehicle should continue being used. 34 As General Manager Mr Wright believed that the actions of the Applicant amounted to serious misconduct.35 Mr Wright gave evidence that he appointed Mr Filippini to investigate the incident.36
[50] Mr Damien Dempster, the Operations Manager of the business provided statements for the matter. 37 Mr Dempster among other things gave evidence that the actions of the Applicant in not reporting the incident immediately were a “serious neglect of duty”,38 and the reason that he was suspended.39
[51] Mr Dempster gave evidence that he had been advised by Mr Errol Brough at about 7am on the morning of 26 August 2010 about the incident involving the Applicant at the Depot as Mr Brough had said he witnessed the incident. 40
[52] Mr Dempster agreed that about 5pm on Friday 27 August he made a telephone call to the Applicant advising him that he was to be stood down 41 because the matter had not been reported straight away.42
[53] Witness statements from Mr Greg Arnold 43 who gave evidence that he had been involved in an incident with a bus on 6 October 2010 and been stood down, and Ms Chantel Brodie44 who gave evidence regarding receiving a telephone call from the Applicant on 26 August and the manner in which the call was handled were admitted into evidence uncontested.45
[54] Mr Jason Filippini who is employed as the Respondents Assistant Operations, Human Resource and Training Manager, and was centrally involved in the handling of the matters that are the subject of this case provided a witness statement. 46
[55] Mr Filippini was asked how he arrived at the conclusion that the Applicants conduct was deceitful and dishonest conduct. 47 Mr Filippini indicated that he was influenced by the advice of Mr Errol Brough regarding the Applicant’s telephone call to Mr Brough and his use of the words “in case somebody saw me”. Mr Filippini was also influenced by the Applicants admission that he carried out repairs on the bus.48
[56] Mr Filippini also referred to a discussion he had with Mr Fabian where Mr Fabian denied seeing the Applicant or being at the depot when the incident occurred as claimed by the Applicant. 49
[57] Mr Filippini also concluded when he investigated the matter than the Applicant did in fact have a drivers manual in his possession for a number of months contrary to claims of the Applicant that he didn’t.
[58] A witness statement of Mr Warren Sansom, the Assistant Operations Fleet Manager was admitted into evidence. 50 Also admitted was a statement he prepared for the previous dismissal matter.51 Mr Samson’s witness statement referred to collecting a green driver’s folder, a black driver’s folder and the keys to bus 38 from the Applicant on 3 June 2010.
[59] Mr Paul Austin, the Workshop Forman provided a brief statement regarding an incident on 18 August 2010 involving a flat battery in a bus driven by the Applicant. 52
[60] Mr Nilsson, also a driver for the Respondent gave evidence including that he recalled when he attended training that the matter of the need to immediately report incidents was covered. 53 He recalled that the procedure was that the Driver was to switch to channel 2 on the radio and advise what had occurred as he had done a week earlier regarding a scratch on his bus.54 Mr Nilsson identified material that was distributed to participants in the training session which explained the procedure.55
[61] Mr Errol Brough, the Assistant Operations and School Services Manager gave evidence 56 that he understood a statement from the Applicant “in case somebody saw me”, when the Applicant rang him to report the incident to be in reference to the incident at the Depot involving damage to the reflector, and not in regard to when the Applicant returned to the Depot later to repair the reflector.57
[62] Mr Brough then said that is how he relayed the matter to Mr Filippini. He also said in the course of the conversation he did not make a lot of comments to the Applicant given that fact that at the time of the accident he was the one who was sitting in the bus and witnessed what happened. 58
[63] Mr Dennis Fabian, also a casual bus driver provided a witness statement 59 regarding an incident on 1 September after the dismissal of the Applicant where an exchange occurred involving the Applicant.
CONSIDERATION
[64] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account a range of matters set out at s.387 of the Act.
Was there a valid reason relating to conduct?
[65] A range of issues were relied upon in the Respondents termination letter. In the written submissions of the Respondent 60 there was a major focus on the motive for the Applicant in not reporting the incident on the morning of 26 August. During the conduct of the hearing an emphasis was also placed on the failure of the Applicant to comply with instructions to immediately report incidents.
Training and Instruction on reporting incidents
[66] The Applicant was shown in cross examination a copy of a Drivers Manual that it was said was returned by Mr Samson with a document with the words “Bus 38” written on it 61 and a slip of paper62 with the Applicants signature dated 30 October 2009 to confirm that he had received, read and understood the 2009 revised edition of the Drivers Manual and retained that document for future reference. The Applicant maintained he had never seen the A5 version of the Manual.63
[67] The Applicant said that he did recall the reference to the reporting of accidents immediately when filling out his original application to work for the Respondent when the Respondent took over the running of the business. 64 The Applicant claimed there was no Drivers Manual in the material he collected.65
[68] The Applicant claimed that he was given a copy of the manual temporarily but had to return it. 66 The Applicant agreed the issue of the reporting of accidents was covered at the training course he attended conducted by Mr Filippini for the Respondent in July 2010. The Applicant stated he could not remember the words “including small scrapes” on one of the cards displayed on an easel during the training.67
[69] The Applicant rejected the evidence in the statement of Mr Nilsson that the Applicant had stated that he didn’t care about the training because he’d been a driver for years. 68
[70] The Applicant was directed to the seventh page of the Drivers Manual under the heading ‘Employee Code of Conduct’ where the following dot point appears;
- Immediate reporting of accidents/incidents. No matter how trivial, no matter what time, all accidents/incidents involving company vehicles/personnel must be reported
[71] The Applicant rejected the claim that he had the Manual in his possession for the 8 month period from 30 October 2009 until June 2010. The Applicant subsequently produced a document 69 which he said he signed at the request of Mr Matt McKerrow who was a former HR Manager of Brisbane Bus Lines70 which was in the same language as the document admitted as exhibit 6.
[72] The Applicant maintained he saw a copy of the Manual at this time but did not retain a copy. 71
[73] The Applicant stated that he knew it was common sense to report any incident that happened on the bus but in the case of knocking the reflector off, the first thing he should do is get back on the bus and go and collect “the kids”. He stated there was no physical damage that would stop the bus rolling and as “the kids” had connecting buses he would do it later on. 72
[74] The Applicant said as follows in evidence;
“But I looked at the bus and it was a reflector - which I have always stated from the very beginning, it’s just a reflector - and yes - I thought, “Move on.” 73
[75] The Applicant was asked how many times he thought he had an opportunity to report the incident prior to reporting it. The Applicant responded that he had never called into operations on his radio in the bus because it doesn’t work at all well in most places due to poor reception. He said he tried once when he pulled up to assist another driver who had a puncture but could not get through. He said he did not have his personal mobile phone with him that day. He also said when he arrived home he could have rung immediately but was more concerned about his mother who had been taken into hospital that night and was contacting his mothers husband about the situation. 74
[76] It was put to the Applicant that he was advised in training to contact the operations manager. 75 The Applicant said when he rang the depot that morning and asked to speak to Mr Brough as he understood Mr Brough, as the Assistant Schools Operations Manager, was the right person to talk to as he drove a school bus.
[77] The Applicant said he spoke to Mr Brough and told him exactly what had happened. The Applicant said Mr Brough had told him Mr Filippini would ring him back and that was the end of the conversation. 76
[78] Evidence from witnesses for the Respondent acknowledged difficulties with the 2 way radio reception but said the installation in all buses of radios that were reliable would be too expensive. Somewhat ironically Mr Dempster explained his decision not to seek to contact the Applicant immediately on learning of the incident from Mr Brough was partly based on difficulties with radio reception. 77
[79] There is a dispute between the parties regarding the statement of Mr Sansom and what he maintains was collected from the Applicant on 3 June 2010, and what the Applicant maintains he gave to Mr Sansom, namely a folder with a time sheet and other material but not the Drivers Manual. This is not a critical issue in my mind.
[80] The Respondent has established to my satisfaction that the Applicant should have been aware there was a requirement to report the incident as soon as possible through the instructions and training he had received, even if the incident was only minor as this one was. At the same time it also appears there were some practical difficulties for the Applicant in immediately reporting the incident including deficiencies in the radio system.
Conversation with Enchelmier and Hamilton
[81] There is uncontested evidence from Ms Enchelmier and Ms Hamilton that the Applicant had stated to them around 7.30 or 7.40am on the day in question that the incident had occurred and that he intended to report it. This is clear evidence that the Applicant was quite open about his intention to report the incident and contradicts the suggestion he was seeking to hide the incident.
[82] It is also uncontested that he did in fact ring in and report the incident several hours later. This evidence is inconsistent with the Respondents conclusion that the Applicant was attempting to hide the incident or be untruthful about the fact that it occurred and the fact that he attempted to repair the reflector.
[83] Had the Respondent conducted a more thorough investigation of the matter this evidence would have been available to it.
In Case Anyone Saw Me
[84] Much was made in the Respondents case regarding the Applicants use of the expression “in case somebody saw me” in the course of reporting the damage to the deflector to Mr Brough. Mr Dempster stated that it was his assumption 78 that the Applicant was referring to the incident itself and not to a later time when the Applicant returned to the Dayboro Bus Depot to repair the reflector as the Applicant claimed in his evidence.
[85] The Applicant always maintained the comment was in regard to the time at which he returned to the Depot later. The Applicant maintained that his comment was to the effect of , “I’m letting you know in case someone saw me at the yard and wondered what I was doing - especially after all the trouble we had last time” in reference to a matter in connection with the previous dismissal. 79
[86] Under cross examination Mr Filippini’s evidence indicates he did not adequately investigate the comments that Mr Brough attributed to the Applicant on this point. The termination letter given to the Applicant and drafted by Mr Filippini indicates that it had been determined by the Respondent that the comment was in reference to the incident itself. The Respondent ultimately relied on the report of the Applicants comment by Mr Brough to form the view that the Applicant was only reporting the incident out of fear that he had been seen as claimed at point 4 in the termination letter.
[87] It is my view the Respondent inappropriately jumped to this conclusion without due consideration to the explanation provided by the Applicant. 80
[88] It was put to Mr Brough in cross examination that the reason the Applicant made the comment was in the context of existing community concern involving an abduction affecting another bus company and that parents are “hypersensitive about these things”. 81
[89] Mr Broughs own statement did not link the comment to either the incident itself or to when the Applicant returned to the Depot later. However under cross examination he agreed it was his own deduction that the reference was to the first incident, 82 and later said in evidence “I would take it from the first incident”. His evidence then changed on this issue, at one point saying that the Applicant did say it was in relation to the first incident however clarified that by saying “I took that to be the incident”83 and that he made that deduction himself.84
[90] He accepted that it would be logical for the Applicant to want to report that he had been back to the Depot “in civvies” (as he had been when he returned to effect the repair) due to parent sensitivity. 85
[91] The Applicant’s explanation is a plausible one. I am cautious about the evidence of Mr Brough on this point as his oral evidence is contradictory. I prefer the evidence of the Applicant in regard to this issue for these reasons.
Accident Free Bonus Payment (AFB)
[92] The Respondents written submission said that the Applicant embarked on a course of deliberate deception and only abandoned this when his attempted deception had failed. The Respondent attributed the Applicants course of action to a desire to avoid losing the Accident Free Bonus payment (AFB). The Respondent maintained the attempt to repair the bus was an attempt to cover up the incident and the Applicant only reported the incident because the repair had failed and he feared he may have been seen.
[93] The Applicant rejected the suggestion that his reaction in attempting to fix the reflector was in any way related to wanting to maintain the bonus. 86
[94] The Applicant rejected the Respondents rationale on this issue for the following reasons. Firstly as there had been a series of accidents in the Depot and the Depot was in a very poor muddy state he did not believe it likely he would be regarded as being at fault for the incident. On that basis at least in the Applicants mind the AFB what not an issue. Secondly, he gave evidence he was only vaguely aware of what the AFB was. The Applicant gave evidence that he did not really know what the bonus was until he spoke to another driver just before attending the training course. 87
[95] The Applicant argued that in any event the AFB was only worth $24 a week and he would not embark on such a course of deception for such a small sum. Further it is not clear even where drivers do have accidents where they are at fault that they lose the AFB.
[96] The Respondent argued that the evidence of Mr Cuningham and Mr Wakelin was not relevant on the basis that Mr Cunningham’s incident happened in the centre of the causeway not at the entrance prior to getting to the causeway. As they were two different areas it was argued this material should be disregarded. 88
[97] The Applicant argued the two statements were relevant as the Respondent has argued that the motive for the alleged deception of the Applicant regarding the damage to the reflector was his desire to protect the AFB.
[98] The Applicant argued as it was the Respondents policy that drivers only lost the bonus if it was found that they were at fault, the evidence of Cunningham and Wakelin showed it would be unlikely anyone would think it was his fault due to the wet and muddy conditions, and that is why the Applicant sought the introduction of the evidence. 89
[99] The Applicant also drew attention to the statement of Mr Dempster where it was said employees are stood down in cases of incidents or accidents. However the Applicant argued this is not true and that he was treated inconsistently when compared to the cases of Cunningham and Wakelin who were not stood down. 90
[100] In my view there is no compelling evidence to support the Respondents assertion that protecting the AFB payment was the motivation for the Applicant to attempt to hide the fact that the incident damaging the reflector had occurred. The evidence does not support the Respondent reaching that conclusion. Having heard the evidence of the Applicant I am more inclined to accept he was not particularly concerned about losing the AFB for the reasons he gave.
Nature of the Damage
[101] On examination of the photographs attached to the Applicants statement 91 of the reflector after it had been reattached it is hard to draw any other conclusion but that the damage was very superficial.
[102] The Applicant gave evidence that besides the reflector being dislodged and a scuff mark which could be polished out and a very slight removal of some paint there was no other damage to the bus such as a dent. 92
[103] Mr Brough said he witnessed the incident, rung through a report to Mr Dempster then returned to the depot later to take photos of the damage to the bus.
[104] Mr Dempster also gave evidence that based on the report he had received from Mr Brough he would have deemed the bus as being okay to continue operating. 93 Further had the Applicant informed him of the incident straight after it happened he said “We would have asked him some questions and then got on with things.”94
[105] Mr Dempster agreed that there was no detriment caused to the bus, its’ safety, the safety of the customers, and no detriment was caused by the Applicants delay. 95 Mr Dempster appeared to accept that the bus was not “worse off” due to the Applicants repair work on the deflector96 and generally the Respondent did not suffer a detriment by the delay in reporting the incident.97
[106] When the Applicant rang in to report the incident Mr Dempster declined to take his call despite being made aware of the incident several hours earlier by Mr Brough. This certainly is an indication that at least Mr Dempster did not regard the incident as a priority that day.
[107] Mr Brough agreed he had a good idea as to why the Applicant was ringing when he did however it was his evidence that Mr Dempster was preoccupied and could not take the call. 98
[108] Mr Dempster was asked what steps he took when he was advised by Mr Brough about the incident that morning. 99 Mr Brough said he made a diary note. When it was put to him that if the matter was as serious and important as the Respondent has stated he would have sought to contact the Applicant he responded by explaining the difficulty in contacting the Applicant for a range of reasons including the limited reception of his two-way radio.
[109] Mr Dempster also agreed that the Applicant could have thought Mr Brough was the right person to talk to about the incident. 100
[110] The manner in which representatives of the Respondent treated the incident on the day supports a conclusion that the Applicant’s delay in reporting it did not warrant such serious consequences as ultimately flowed from that delay when considering the nature of the damage.
Whereabouts of Mr Fabian
[111] The Applicant said he expressed his view to both Mr Brough and at the meeting on 30 August that he believed Mr Fabian witnessed the incident. Mr Wright said he did not remember if he did. 101 On the evidence it is not clear whether Mr Fabian was or was not present however I can see no basis for the Applicant inventing that evidence.
[112] Mr Fabian initially gave evidence that he never had prior contact with the Applicant. 102 He later changed his evidence by agreeing he had seen the Applicant on occasions to refuel his bus at a service station previously operated by Mr Fabian,103 and he also recalled assisting the Applicant when towing a bus out of a creek.104
[113] Mr Fabian’s evidence on his location on the morning of the incident of 26 August 2010 is unclear. Initially he claimed he was not at the Dayboro Depot. He did agree that it was possible he could have been there as claimed by the Applicant but he did not know. 105 He also did not remember if he had a conversation with the Applicant on the afternoon of 26 August 2010.
[114] As the Applicants evidence is quite firm on this question, including a description of the distinctive vehicle driven by Mr Fabian, and Mr Fabian’s evidence is inconsistent I am inclined to prefer the Applicants evidence.
Meeting of 30 August
[115] The Applicant was advised by Mr Dempster at approximately 5pm on Friday 27 August that he was being stood down which was a standard procedure while the incident was investigated. He was also advised he needed to complete some paper work. 106
[116] The Applicant completed the forms for the purposes of an insurance claim and presented them at the Respondents Head Office at Enoggera Depot on Monday 30 August where he was met by Mr Filippini. The Applicant stated that he had believed when he returned the insurance form that morning the stand down would be over. 107
[117] It is the Applicants evidence that on arrival Mr Filippini asked him to wait in the driver’s room. After a wait of approximately 20 minutes he was called into Mr Wright’s office and sat down across from Mr Wright and Mr Filippini sat in the far corner of the room. 108
[118] There is some dispute between the parties about what was said at this meeting but the Applicant agreed that Mr Wright had asked him if he was telling the truth about the incident and it is also agreed that the Applicant was told the matter was a serious issue. The Applicant maintains he was told that it would be referred to Mr Mitchell 109 but this was disputed.
[119] The Applicant also agreed he was asked why he did not call in straight away and why he had carried out his own repairs. 110 The Applicant stated as follows;
“....I thought, such a minor incident and the thing for me to do was to get on with the job and pick up the children. Then I explained to Tony and yourself how I’d picked up the reflector, stood up the star picket, drove on, did my job and then reported back later on. I even showed how I stuck the reflector back together on the backing plate.” 111
[120] Mr Wright gave evidence that he took diary notes at the meeting with the Applicant. 112 This gave rise to the question as to why those notes were not produced in accordance with the Order for the production of documents issued by FWA.
[121] Mr Wright agreed to produce copies of those notes. 113 The Tribunal was subsequently advised the following day by Mr Filippini that Mr Wright did not in fact make any notes in his diary.114
[122] Mr Filippini accepted that there is no written record of the meeting that was held with the Applicant. 115
[123] Mr Wright said in evidence “I think you’re missing the whole point. The whole point of the exercise is not the accident. It’s not that it happened or where it happened. It’s the deception of not telling people that it had happened. That’s the point.” 116
[124] This is the central question in the case going to whether the Respondent had a valid reason to terminate the Applicant. On the evidence I am not at all satisfied that the Applicant did set out to deliberately deceive the Respondent or was untruthful about what occurred. To the contrary it is my view that he was quite open about what had occurred. The only criticism that could be levelled at the Applicant was a delay of several hours between the incident itself and his reporting of it.
[125] I would agree that there would have been opportunities for the Applicant to have reported that a deflector had been dislodged from the side of BBL 38 on a number of occasions between 7.15 am and 11.45am and in not reporting the incident immediately he was not complying with a requirement in the Drivers Manual to do so.
[126] However I have some sympathy with his explanation for reasons for his failure to report it immediately, including that the nature of the incident was very minor, he did not have reliable radio contact and that his mother had just been hospitalised in Nambour.
[127] The Applicant had been involved in the running of a farm and it is not unusual for persons involved in doing so to become accustomed to making minor repairs themselves. This appears to me to be what the Applicant sought to do in this case and nothing more.
[128] The central finding relied upon by the Respondent, namely dishonesty and deceitfulness is not available on the evidence. On that basis it is my view the Respondent did not have a valid reason to terminate the Applicant based on his conduct.
Was the Applicant notified of the reason for his termination?
[129] It appears from the evidence that the principle reason relied upon to terminate the Applicant was not put squarely to the Applicant during the meeting on 30 August, that being that he deliberately sought to deceive and/or mislead the Respondent about the incident that had occurred that morning.
[130] Mr Filippini agreed that conclusions he reached were never put to the Applicant until he received his dismissal letter. 117
[131] Mr Filippini rang the Applicant at his home on the morning of 31 August and advised that the employer had come to a decision. The Applicant maintained he did not know what the decision was about and that Mr Filippini advised he could not advise him over the phone. After some discussion it was agreed that Mr Filippini and Mr Dempster would visit the Applicant at his home at 11.30am. The Applicant was handed a copy of the dismissal letter when visited at his home.
[132] On that basis I am satisfied that the Applicant was not notified of the reason for his dismissal until he received the termination letter delivered to him on 31 August.
Was the Applicant given an opportunity to respond to any reason related to his conduct?
[133] The investigation referred to by the Respondent proceeded without the Applicant being advised in any formal way that an investigation was in fact occurring with the exception of the comment from Mr Dempster during the telephone call on 27 August that the matter would be investigated.
[134] Mr Filppini was referred to s. 387(c) of the Act. Mr Filippini accepted that the Applicant was not advised that he may be dismissed during the meeting on 30 August however the Applicant was told the matter was serious and that they would get back to him with the outcome. 118
[135] As already stated Mr Filippini agreed that conclusions he reached were never put to the Applicant until he received his dismissal letter. 119
[136] Mr Dempsters evidence did not support an inference that may have been drawn from some language in the Respondents submissions 120 that he and Mr Filippini were in any way authorised to give the Applicant a further opportunity to show cause as to why he should not be dismissed when he was delivered the termination letter on the morning of 31 August 2010.121
[137] Mr Filippini appeared also to accept that the Applicant was not advised beforehand that Mr Wright as General Manager would be attending the meeting on 30 August. 122 He also accepted that he had never advised the Applicant that he had been appointed to independently investigate the incident.123
[138] Mr Filippini was referred to the terms of reference for the investigation in Part 6 of the Employers Submission 124 which firstly required that he take statements from all people involved. He agreed that he did not take a statement from the Applicant125 but did take statements from Mr Brough and Ms Brodie.126 Mr Filippini clarified that he believed the statement from the Applicant was an oral statement at the meeting.
[139] A further term of reference for the investigation was to “carry out a thorough investigation that is transparent in nature”. 127 Mr Filippini was asked if he thought it was transparent to have no documentation from the interviews with Brough and Brodie. Mr Filippini replied he kept the records he felt were appropriate.128
[140] It appeared to me that Mr Wright did not have a clear recollection of the meeting. He indicated this himself on a number of occasions. 129 This is reinforced by his initial claim that he had diary notes but it was later clarified that he did not have diary notes.
[141] Mr Wright believed the meeting lasted for between 10 and 30 minutes. 130 The Applicant maintained the meeting lasted for no more than 5 to 10 minutes.131
[142] Further, Mr Wright initially indicated under cross examination that there was no reference to dishonesty in the meeting however then corrected that when he read paragraph 18 in his witness statement. 132
[143] Mr Wright agreed that the Applicant was not told in those words during the meeting on 30 August that he was in a disciplinary process 133 and also agreed that he was not told in those words he may be dismissed.134
[144] In response to a question as to whether he was quite happy that the disciplinary handbook had been followed with regard to the Applicant being “informed of the process they had entered into” and given an opportunity to “present their version of the conduct/incident” he stated he hadn’t even been aware of that particular point and he had put the manual together 15 years ago and it had been altered many times since then. 135
[145] Mr Wright saw it that the Applicant would be given a chance to respond to the case against him in the letter he would be sent as soon as the Respondent had investigated. 136 At the same time however he agreed that he had taken the decision to dismiss the Applicant prior to him receiving the termination letter.137
[146] Mr Wright accepted that there was no point in the Applicant responding to the termination letter because the decision had been taken. 138 He confirmed later in his evidence that he had not authorised any further consideration of the matter when Mr Filippini and Mr Dempster delivered the letter.139
[147] Mr Wright agreed that to his knowledge the Applicant was not aware of the conclusions the Respondent had arrived at prior to receiving the termination letter. 140
[148] Both Mr Filippini and Mr Wright both conceded their conclusions about the matter were not put to the Applicant until he was delivered the termination letter.
[149] It is quite apparent that the Respondent failed to afford the Applicant procedural fairness because it did not allow him an opportunity to respond to the reasons for termination related to his conduct.
Was there an unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal?
[150] It appears to me from the evidence the Applicant was never told directly at the meeting on 30 August 2010 that his employment may be in jeopardy.
[151] It was put for the Applicant that had he been aware that his employment was threatened he would have relied upon his wife as a support person as he had done on the previous occasion involving a dismissal which was settled between the parties as referred to earlier. It was put to Mr Filippini the inference to be drawn from the Applicant not asking for a support person was that he had no reason to believe he needed one. 141
[152] The disciplinary procedure of the Respondent 142 states that within each stage of the disciplinary process, employees will be given the opportunity to have a witness present and present their version of the conduct/incident. Mr Filippini accepted that the Applicant was not given the opportunity to have a witness present in the meeting.143
[153] Under cross examination Mr Wright stated that the Applicant was asked when he entered the room whether he wanted a witness present. 144 He was asked why this was not in his or Mr Filippini’s statements. He replied that is what he believed happened.
[154] Mr Wright later said he thought the Applicant was offered an opportunity to have a support person prior to the meeting 145 and declined the offer.146 I prefer the evidence of the Applicant and Mr Filippini over Mr Wright on this issue as I regard Mr Wright’s evidence as generally unreliable due to his poor recollection generally.
[155] The Respondents own policy sets a higher bar then the legislative provision at s. 387(d) which deals with any unreasonable refusal to have a support person. The Respondent failed to comply with their own procedure in the discipline handbook which says employees will be given an opportunity to have a witness present. The question of unreasonable refusal never arose only because it seems the Applicant was unaware the discussion he was participating in on 30 August 2010 was related to his dismissal.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[156] The Respondent is not a small business employer, employing in excess of 100 employees.
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.
[157] Mr Filippini is employed as the Respondents Assistant Operations, Human Resource and Training Manager. Mr Filippini has said he does not have any formal training in human resources. His lack of expertise has contributed to serious deficiencies in how this matter was managed. It is my strong recommendation that if Mr Filippini is to remain in this role he undertake appropriate training regarding the handling of investigations and disciplinary processes to ensure procedural fairness is afforded to employees of the Respondent in the future.
Any other matters that FWA considers relevant.
Previous Record
[158] It reflects poorly on the decision maker for the Respondent, who was the General Manager Mr Wright, that he admitted quite openly in evidence that he had no regard at all to the Applicants previous employment record before taking the decision to terminate him. 147
CONCLUSION
[159] The Respondent has maintained throughout the matter that the conduct of the Applicant on 26 August 2010 constituted serious misconduct. Serious misconduct is defined in the Act at section 12 and at Regulation 1.07.
[160] While I can understand the Respondents desire to enforce a policy of the immediate reporting of incidents or accidents regardless of how minor they may be, for all the reasons I have set out above, I reject the Respondent’s view that the Applicant embarked on an elaborate course of action in an attempt to dishonestly cover up the incident. 148 There are no grounds to support the Respondents claim of serious misconduct.
[161] We will never know if the Applicant had been given a proper opportunity to respond to the allegations that were relied upon to terminate him if he could have persuaded the Respondent to reconsider the matter.
[162] I have found the Respondent did not have a valid reason for termination, the Applicant was not given an appropriate opportunity to respond to the reasons related to conduct, the Applicant was effectively denied the opportunity to have a support person and the Respondent admitted having no regard to the Applicants previous unblemished record. Therefore I find the dismissal was harsh, unjust and unreasonable.
REMEDY
[163] There is no evidence that an order for compensation will affect the viability of the business.
[164] It is my view the Applicant is likely to have continued in employment for at least another six months considering his age and as there were no other performance related reasons to suggest otherwise. I have not estimated a period longer than six months as his period of employment was less than 2 years and a greater degree of uncertainty exists with casual employment compared to permanent employment.
[165] Accordingly, I have estimated future income based on attachment D to the original Application filed which sets out the earning of the Applicant on a week by week basis since commencing employment with the Respondent.
[166] Based on the 12 month period before termination the Applicant earned $18,070.86 in 35 weeks, 6 weeks were not worked due to matters that were the subject of a Deed of Settlement and 11 weeks were school holiday periods. I have treated that 6 week period for the purpose of estimating future income as weeks where 23.25 hours would be likely to be worked and $3,328.50 earned. I calculate his projected likely income for one year to be $21,399.36, and on that basis for six months as $10,699.68.
[167] The Applicant has not earned remuneration since termination.
[168] I have deducted a further 10% as the Applicant failed to report the incident at the first available opportunity reducing the figure to $9,629.71.
[169] The compensation cap in the Act does not allow compensation to exceed the total amount of remuneration received by the person, or to which the person was entitled in the 26 week period immediately before dismissal. On that basis I make a further deduction of $1,516.10 to arrive at the figure of $8,113.61 which equates to the income earned by the Applicant during the 26 weeks immediately before dismissal.
[170] I have not included potential income for the six week period that was the subject of a Deed of Settlement as I am not able to find that an entitlement existed for that period.
[171] Accordingly, I order Brisbane Bus Lines Pty Ltd pay to Mr Cooper an amount of $8,113.61 gross, less tax as required by law, on or before 7 June 2011.
[172] An order to this effect will be issued shortly.
COMMISSIONER
Hearing details:
Brisbane
21 February 2011
9 March 2011
10 March 2011
1 Transcript 9 March 2011, PN 204-208.
2 [2011]FWA 1400 PR507281
3 Transcript 9 March 2011, PN 165.
4 Exhibit 3, clause 2.2.
5 Transcript 9 March 2011, PN 348.
6 Exhibit 3, clause 5.8.
7 Exhibit 3, attachment H.
8 Exhibit 1.
9 Exhibit 2.
10 Transcript 9 March 2011, PN 195-196.
11 Transcript 9 March 2011, PN 356.
12 Transcript 9 March 2011, PN 392.
13 Transcript 9 March 2011, PN 271.
14 Transcript 9 March 2011, PN 272-273.
15 Transcript 9 March 2011, PN 279.
16 Exhibit 3, clause 5.12.
17 Transcript 9 March 2011, PN 411.
18 Exhibit 3, attachment I.
19 Exhibit 3, clause 5.19.
20 Exhibit 3, clause 5.19.
21 Exhibit 3, clause 5.20.
22 Transcript 9 March 2011, PN 392.
23 Transcript 9 March 2011, PN 395; Exhibit 3, clause 5.11.
24 Transcript 9 March 2011, PN 399-400.
25 Transcript 9 March 2011, PN 403.
26 Transcript 9 March 2011, PN 404.
27 Transcript 9 March 2011, PN 406.
28 Transcript 9 March 2011, PN 402.
29 Transcript 9 March 2011, PN 421.
30 Transcript 9 March 2011, PN 966.
31 Transcript 9 March 2011, PN 966.
32 Exhibit 9.
33 Transcript 9 March 2011, PN 991.
34 Transcript 9 March 2011, PN 993.
35 Transcript 9 March 2011, PN 995.
36 Transcript 9 March 2011, PN 996.
37 Exhibit 10.
38 Transcript 9 March 2011, PN 1302.
39 Transcript 9 March 2011, PN 1366-1368.
40 Transcript 9 March 2011, PN 1373.
41 Transcript 9 March 2011, PN 1333.
42 Transcript 9 March 2011, PN 1334.
43 Exhibit 12.
44 Exhibit 13.
45 Transcript 10 March 2011, PN 1564.
46 Exhibit 15.
47 Transcript 10 March 2011, PN 1669-1670.
48 Transcript 10 March 2011, PN 1670.
49 Transcript 10 March 2011, PN 1675.
50 Exhibit 16.
51 Exhibit 17.
52 Exhibit 18.
53 Exhibit 19.
54 Transcript 10 March 2011, PN 2115.
55 Transcript 10 March 2011, PN 2132-2143.
56 Exhibit 21.
57 Transcript 10 March 2011, PN 2206.
58 Transcript 10 March 2011, PN 2207.
59 Exhibit 22.
60 Exhibit 14.
61 Exhibit 5.
62 Exhibit 6.
63 Transcript 9 March 2011, PN 478-505.
64 Transcript 9 March 2011, PN 370-378.
65 Transcript 9 March 2011, PN 379.
66 Transcript 9 March 2011, PN 380.
67 Transcript 9 March 2011, PN 386.
68 Transcript 9 March 2011, PN 387.
69 Exhibit 7.
70 Transcript 9 March 2011, PN 891-901.
71 Transcript 9 March 2011, PN 891-892.
72 Transcript 9 March 2011, PN 574.
73 Transcript 9 March 2011, PN 577.
74 Transcript 9 March 2011, PN 665.
75 Transcript 9 March 2011, PN 696-704.
76 Transcript 9 March 2011, PN 693.
77 Transcript 9 March 2011, PN 1377-1380.
78 Transcript 9 March 2011, PN 1461.
79 Exhibit 3, clause 5.20.
80 Transcript 10 March 2011, PN 1851-1864.
81 Transcript 10 March 2011, PN 2212.
82 Transcript 10 March 2011, PN 2214.
83 Transcript 10 March 2011, PN 2223.
84 Transcript 10 March 2011, PN 2224.
85 Transcript 10 March 2011, PN 2232.
86 Transcript 9 March 2011, PN 364.
87 Transcript 9 March 2011, PN 357.
88 Transcript 9 March 2011, PN 941-944.
89 Transcript 9 March 2011, PN 949.
90 Transcript 9 March 2011, PN 950.
91 Exhibit 3, attachment I.
92 Transcript 9 March 2011, PN 829-830.
93 Transcript 9 March 2011, PN 1380.
94 Transcript 9 March 2011, PN 1381.
95 Transcript 9 March 2011, PN 1382.
96 Transcript 9 March 2011, PN 1404.
97 Transcript 9 March 2011, PN 1423.
98 Transcript 10 March 2011, PN 2250-2254.
99 Transcript 9 March 2011, PN 1375.
100 Transcript 9 March 2011, PN 1455.
101 Transcript 9 March 2011, PN 1123.
102 Transcript 10 March 2011, PN 2368-2369.
103 Transcript 10 March 2011, PN 2382.
104 Transcript 10 March 2011, PN 2377.
105 Transcript 10 March 2011, PN 2400.
106 Transcript 9 March 2011, PN 722.
107 Exhibit 3, clause 5.30.
108 Exhibit 3, clause 5.31.
109 Transcript 9 March 2011, PN 734.
110 Transcript 9 March 2011, PN 739.
111 Transcript 9 March 2011, PN 739.
112 Transcript 9 March 2011, PN 1022.
113 Transcript 9 March 2011, PN 1065.
114 Transcript 10 March 2011, PN 1546.
115 Transcript 10 March 2011, PN 1701.
116 Transcript 9 March 2011, PN 1160.
117 Transcript 10 March 2011, PN 1772.
118 Transcript 10 March 2011, PN 1812.
119 Transcript 10 March 2011, PN 1772.
120 Exhibit 14.
121 Transcript 9 March 2011, PN 1352-1358.
122 Transcript 10 March 2011, PN 1733-1734.
123 Transcript 10 March 2011, PN 1737.
124 Exhibit 14.
125 Transcript 10 March 2011, PN 1757.
126 Transcript 10 March 2011, PN 1738; PN1776.
127 Exhibit 14, clause 6.1.4.
128 Transcript 10 March 2011, PN 1798.
129 Transcript 9 March 2011, PN 1012; PN 1072-1073; PN 1123; PN 1139; PN 1163-1170; PN 1175-1176.
130 Transcript 9 March 2011, PN 1130.
131 Exhibit 3, clause 5.32.
132 Transcript 9 March 2011, PN 1117-1119.
133 Transcript 9 March 2011, PN 1075.
134 Transcript 9 March 2011, PN 1076.
135 Transcript 9 March 2011, PN 1080-1081.
136 Transcript 9 March 2011, PN 1087.
137 Transcript 9 March 2011, PN 1088-1089.
138 Transcript 9 March 2011, PN 1090-1091.
139 Transcript 9 March 2011, PN 1188.
140 Transcript 9 March 2011, PN 1093.
141 Transcript 10 March 2011, PN 1832.
142 Exhibit 5, page 22.
143 Transcript 10 March 2011, PN 1722-1728.
144 Transcript 9 March 2011, PN 1070.
145 Transcript 9 March 2011, PN 1101.
146 Transcript 9 March 2011, PN 1100.
147 Transcript 9 March 2011, PN 1135-1143.
148 Transcript 9 March 2011, PN 969.
Printed by authority of the Commonwealth Government Printer
<Price code D, PR507609>
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