Fair Work Act 2009
s.394—Unfair dismissal

Gerard Monaghan
v
Applied Medical Australia
(U2022/460)

Application for an unfair dismissal remedy

[1] The applicant, Gerard Monaghan was dismissed by the respondent, Applied Medical Australia Pty Ltd on 7 December 2021 in connection with his status as an unvaccinated person. He has applied under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that he has been unfairly dismissed.

[2] I have decided that the applicant’s dismissal was not unfair and that his application should be dismissed. My reasons follow.

Background facts

[3] Except as indicated below, the material facts are not in dispute. The applicant commenced employment with the respondent on 5 August 2019 in the position of Territory Manager – Victoria. He was based in Victoria.¹

[4] The respondent is a subsidiary of a global company, Applied Medical Resources Corporation, which manufactures and distributes medical devices, including in Australia through the respondent. The respondent operates in all States and Territories in Australia and its major clients in Australia include both public and private hospitals.²

[5] Before commencing his employment with the respondent, the applicant entered into a contract of employment constituted by the acceptance of a letter of offer and a schedule of terms and conditions attached thereto.³ Clause 3.1 of those terms and conditions, inter alia, provides:

You will be able to work from home provided that you attend all necessary meetings and travel throughout your sales district (Territory Manager – Melbourne) as required to perform your duties.⁴

[6] Clause 5 broadly sets out the duties and responsibilities of the applicant’s position and relevantly provides:

5.5. You must comply with all lawful orders and instructions given by Applied Medical

5.6. You must comply with all of Applied Medical’s policies and Code of Ethics as varied from time to time (although such policies operate independently of this agreement and are not incorporated into this agreement)⁵

[7] As with other Territory Managers employed by the respondent, the applicant had a position description which described that his role was “to manage the promotion, sales and negotiations of the Applied Medical product line in all accounts within their assigned territory”.⁶ According to the position description, among the key objectives of the role, the applicant was required to:

•  Develop relationships with all Surgeons, Nurse unit managers, and Purchasing officers relevant to each’s business; and

•  Spend a minimum of four and a half days on the road and in theatre with customers.⁷

[8] The applicant was aware of the above terms and agreed that the key objectives specified above were an accurate description of his role as a Territory Manager.⁸

[9] Stuart Johnson, the respondent’s Vice President of Field Implementation, gave evidence that the applicant’s role required him to be ‘in the field’ – that is, on the road and in theatre with customers – four and a half days of his five-day working week. So much is also evident from the terms of the employment contract earlier set out. Mr Johnson said there were two primary components of the applicant’s role. The first was to procure and sell the respondent’s products to client contacts in the relevant healthcare facilities. The second was to attend operating theatres during surgical procedures to ‘clinically convert’ surgeons – that is, convert them from using a competitor’s product – and guide them in correctly using the respondent’s products. Mr Johnson said that this included in-servicing the nursing staff within the theatre unit and ensuring all stakeholders understand how they intersect with the respondent’s products and organisation.⁹

[10] The applicant did not give contrary evidence and did not challenge Mr Johnson during cross-examination about the veracity of this evidence. I accept the evidence.

[11] As with other States and Territories, as part of the Victorian Government’s response to the management of the COVID-19 pandemic, the Victorian Minister for Health declared a state of emergency under s 198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) on 16 March 2020. The declaration thus permitted the Chief Health Officer for Victoria (CHO), or any person acting in that position, amongst others, to make various directions directed to “pandemic management”. The Health Minister has on several occasions pursuant to s 198(7)(c) of the PHW Act extended the state of emergency declaration, and relevantly did so on 18 November 2021, which remained in force until 11:59 pm on 15 December 2021. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (PH&WA Act) came into operation on 8 December 2021. The PHW Act as amended by the PH&WA Act has thereafter regulated matters pertaining to the COVID-19 pandemic. The CHO and those acting as CHO from time to time have, since at least September 2021, issued successive iterations of the mandatory vaccination directions which were directed to operators of various facilities in Victoria (CHO Directions). The Minster for Health has issued various health orders to the same effect as the CHO Directions since the commencement of the PH&WA Act (Health Orders).

[12] As an example, the Acting CHO made the COVID-19 Mandatory Vaccination Directions (No 4) which commenced operation at 11:59pm on 29 September 2021 and ceased operating at 11:59pm on 21 October 2021. The directions imposed certain obligations on operators, relevantly, of healthcare facilities. The directions required an operator of a healthcare facility to collect, record and hold vaccination information about a worker if the worker was or may be scheduled to work at the facility, on 15 October 2021. The directions required an operator of a healthcare facility to take all reasonable steps to ensure that on or after 15 October 2021 a worker who was unvaccinated did not enter, or remain on, the premises of a healthcare facility for the purposes of working at the facility, and if the operator did not hold vaccination information about the worker the operator was required to treat the worker as if the worker was unvaccinated.

[13] Relevantly, the directions also provided that if the operator was obliged to comply with the requirement set out in the last sentence of the preceding paragraph in relation to a worker, and the operator was not the employer of the worker or the person who engaged the worker to work at the facility, the operator was authorised to disclose to the employer or person who engaged the worker that the operator was obliged to comply with the requirement.

[14] Subsequent CHO Directions contained provisions to the same or substantially the same effect. Relevantly, at the time of the applicant’s dismissal the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) operated, in relation to, inter alia, healthcare facilities.

[15] Since approximately late July 2021, the respondent began receiving communications from some of its customers in both the private and public health sectors about their COVID-19 vaccination requirements based on the announcement of the CHO Directions and their own internal policies.¹⁰ For example, on 13 October 2021 the respondent received correspondence form Eastern Health advising that it was required to collect COVID‐19 vaccination information about all workers, including contractors and requesting the respondent to “alert [its] staff that proof of vaccination will be required at time of entry to Eastern Health sites”.¹¹ To similar effect, St John of God Health Care advised the respondent on 6 October 2021 that it “requires that all suppliers/contractors and their employees, agents, and subcontractors visiting a St John of God Health Care facility in Victoria must receive their first dose of a COVID-19 vaccine by 15 October 2021 (or have a first dose appointment booked for before 29 October) and their second dose by 1 December 2021”.¹²

[16] Mr Johnson gave evidence that the respondent needed to ensure that all its employees knew they may not be able to work if, in accordance with their customers’ mandatory vaccination policies and the relevant CHO Directions, they were not vaccinated. To this end, employees, including the applicant, were sent emails by the respondent as and when the respondent received notification from its customers, to ensure its employees were aware of the requirements and could provide the necessary proof of vaccination.¹³ This evidence was not challenged, and I accept it.

[17] Because of its customer and government requirements, the respondent began considering implementing a mandatory vaccination policy in early to mid-September 2021.¹⁴ The respondent finalised a draft policy by 21 September 2021, released it to employees for consultation and requested employees to provide any comments and feedback by 27 September 2021.¹⁵

[18] The draft policy contained a definition of “Qualifying Employees” and required such employees to have doses of the COVID-19 vaccine “in line with applicable health orders” which were thereafter listed.¹⁶ Whether by omission or design, no applicable or operative Victorian CHO Directions were listed. The omission is not material and as will shortly be evident the final policy promulgated by the respondent included Victorian CHO Directions.

[19] The applicant provided some feedback in an email of 27 September 2021 in which he expressed his concern about “the proposed unprecedented policy” and raised a range of questions as follows:

1. Can you please advise me of the approved legal status of any vaccine and if it is experimental?

2. Can you please provide details and assurances that the vaccine has been fully, independently, and rigorously tested against control groups completing all phases as with all other vaccines and the subsequent outcomes of those tests?

3. Can you please advise of the full list of contents of the vaccine I am to receive and if any are toxic to the body?

4. Can you please fully advise of all the adverse reactions associated with this vaccine since its introduction and compare those to other widely used vaccines.

5. Can you please confirm that the vaccine you are advocating is NOT ‘experimental mRNA gene altering therapy’?

6. Can you please confirm that I will not be under any duress from yourselves as my employers, in compliance with the Nuremberg Code?

7. Can you please advise me of the long‐term efficacy and risk of fatality, should I be unfortunate to contract Covid 19 relying on the proposed 2 injections.¹⁷

[20] Mr Johnson responded by email dated 12 October 2021 in which he proposed a meeting with the applicant using Microsoft Teams to discuss the applicant’s feedback and concerns.¹⁸ The meeting occurred on 18 October 2021. The applicant did not receive a written response to his questions. Mr Johnson’s evidence was and I accept that the purpose of the meeting was to give the applicant an opportunity to discuss any concerns about the policy and that the nature of the questions that were set out in the applicant’s email were not matters for the respondent to provide a response.¹⁹ Minutes of the meeting were produced²⁰ and the applicant did not, during cross-examination of Mr Johnson, take issue with the accuracy of the minutes.²¹

[21] On 21 October 2021, the applicant was notified that the respondent would be implementing the policy and that it would allow him an extension to 1 December 2021 to receive his first dose of an approved COVID-19 vaccine.²² All of the respondent’s staff, including the applicant, were sent a copy of the final policy on 22 October 2022.²³ The finalised policy contained a requirement that relevant qualifying employees in Victoria receive a first dose of a COVID-19 vaccine by 29 October 2021 and a second dose by 15 December 2021 in accordance with the CHO Directions made on 19 October 2021.²⁴ As already noted, the applicant was not required to comply with the first dose requirement until 1 December 2021. Under the policy, a “Qualifying Employee” was relevantly an employee of the respondent:

a) whose role or function requires them to attend a healthcare facility;

b) whose role or function means they will be interacting (e.g. in face to face office or warehouse meetings) with another employee or contractor of Applied Medical required to attend a healthcare facility;

c) who is required by relevant public health authorities to receive a COVID-19 Vaccination; or

d) who Applied Medical otherwise designates as a Qualifying Employee.²⁵

[22] There is no dispute that the applicant was a “Qualifying Employee” within the policy given the requirements of his role as a Territory Manager.

[23] For the period between 21 October 2021 and 1 December 2021 the applicant was not able to enter any healthcare facilities because of his unvaccinated status and was working from home.²⁶ By 1 December 2021 the applicant had not provided the respondent with any confirmation of having received a first dose of a COVID-19 vaccine nor had he applied for a medical exemption based on a medical contraindication.²⁷

[24] Although there was some controversy during the hearing, it is now accepted that the applicant was on a period of personal leave from 29 November 2021 until his return to work on 6 December 2021 pursuant to a medical certificate.²⁸

[25] On 1 December 2021, Mr Johnson sent the applicant an email and a Microsoft Teams meeting invitation for 2 December 2021 which according to Mr Johnson was arranged for the purpose of discussing the respondent’s view that the applicant had engaged in misconduct and the proposed disciplinary action the respondent was considering taking.²⁹

[26] The applicant did not attend the meeting and gave evidence that he did not see that email because he was absent on sick leave, and he was not checking his work emails.³⁰ I accept the applicant’s evidence. He also said that during his absence on personal leave he did not turn on his laptop computer and did not access his emails.³¹ I also accept this evidence.

[27] On 3 December 2021 Mr Johnston sent the applicant a ‘Show Cause Letter’ by email. Mr Johnson said that he had intended to provide the applicant with the letter at the conclusion of the aforementioned meeting.³² The letter relevantly set out the following:

. . .

Your conduct in failing to receive your first vaccination dose, as well as your failure to communicate with us regarding your vaccination status, amounts to a failure to follow a lawful and reasonable direction in breach of your employment contract and of the Policy.

B. Show cause

As you are aware, you are a Qualifying Employee under the Policy because your role as Territory Manager Melbourne requires you to visit Applied Medical’s customers including healthcare facilities, which mandate that all visitors must be fully vaccinated against COVID-19.

If you continue to refuse to be vaccinated in accordance with the Policy, Applied Medical can no longer maintain alternative arrangements or accommodations to enable you to undertake your duties. Accordingly, Applied Medical considers you are unable to fulfil the inherent requirements of your role.

As your conduct outlined above amounts to breaches of the Policy and lawful and reasonable directions regarding your employment, Applied Medical is proposing to terminate your employment, with notice, on the grounds of misconduct.

You are invited to provide a response to the proposed disciplinary action of termination of your employment. Your response should show cause as to why your employment should not be terminated. You may provide your response in writing to me by no later than 5pm on Monday 6 December 2021.

Applied Medical will take your response into consideration before confirming any decision on disciplinary action. If you do not provide any response, Applied Medical will make a decision on the information available.

We appreciate this is a stressful time for you. Please note that UPRISE our Employee Assistance Program Provider is available 24 hours a day, 7 days a week and is a confidential service that can be contacted on 1300 209 371.

[28] As earlier noted, the applicant was on personal leave until 6 December 2021. He did not read the letter until sometime after his return to work on 6 December 2021.³³

[29] A further letter, substantially to the same effect as the 3 December 2021 letter, save that it allowed for a written response by 5:00pm on 7 December 2021, was sent to the applicant by email on 6 December 2021.³⁴

[30] The applicant provided a written response by email to Mr Johnson in the afternoon of 6 December 2021.³⁵ The applicant’s response was in the following terms:

This notice is written in concern of a requirement made unto me, to undertake a medical treatment for the Covid‐19 virus, as made on the basis that I may contract a disease and infect others thereafter and that the vaccination required of me to safeguard the community from that disease. It appears from the notice given, you are claiming to be acting on public health orders issued by the Chief Health Officer of the State which have not accompanied this notice in order to inspect whether such orders are mandating (contracting) and are enforceable and binding on me.

Prior to receiving such notice, I have taken genuine steps and sought competent legal advice and further made enquiries into the Public Health And Wellbeing Act 2008 (VIC) for which the Act has a provision found at s 203(2) for exemption by reasonable excuse, which is not accommodated for consideration in your notice, providing reasonable grounds for action against you for negligence. Your notice purports to be executed by an authorised person, being an entity created and governed by the Corporations Act 2001(Cth) claiming among other things, to impose changes to my employment contract by invoking a mandate that may not have fulfilled the legal process to overcome my constitutional guarantee of Crown law, found at s2(3) Constitution Act 1889 (WA) (s 118 Cth Constitution; Recognition of laws etc. of States) a mandatory prohibition against Acts devoid of the Crown, signature and seal.  

Furthermore, it has been declared by the High Court, in the matter  COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA  AND  ORS  V  QUEENSLAND RAIL AND ANOR [2015] HCA 11 to whereby the High Court unanimously held that a trading corporation within the meaning of s51(xx) of the Constitution that the relations between a trading corporation and its employees are governed by Commonwealth law and not State law and, therefore, seeking to apply State law to its employees is inconsistent with the Fair Work Act 2009 (Cth).  

The employer/employee relationship (which is private in nature) is governed by the Federal scheme of corporation law as requested by the States in 2001 via s 51(xxxvii), making the State Health directions inoperable by virtue of s 109 of the Constitution by extinguishing legislative power be imposed on the employer upon employees who enters the workplace.

It is of great concern that I am informed by a variety of government sources, both State and Commonwealth, that the vaccines have not gone through the safeguard trials required of vaccinations generally, and that the vaccines are being rushed through on the basis of an emergency and fail to provide protection from contracting nor spreading the virus and may only be a mechanism to lessen symptoms.   

There exists in several media venues reports of substantial adverse effects and the occasional death that occurs immediately to several days thereafter. Reports abound that emergency wards of hospitals are treating vaccinated people for the aftereffects of the vaccines where nurses who are required to have those same vaccines, are refusing and leaving their workplace for fear of the witnessed effects. Further, there are reports of ingredients in the makeup of the vaccines that have cause for alarm in that they are known toxins and the studies to ensure the safety of these harmful substances have not been carried out in the push for early release.

Albeit that said, it is my responsibility as an adult, and for my family that I do not put myself in harm’s way needlessly, and that I am not denied my rights to medical choice and medical privacy. In that sense, I protest the requirement made on me to reveal my medical status on the basis for employment, when I am not under the effects of a disease and cannot be subject to the State’s Quarantine powers which are for want of jurisdiction (employer/employee) as deemed by the High Court. Furthermore, it is my considered position that I serve myself, and my family, best if I refuse an experimental drug with known, and unknown, toxins and rely on my good health and natural immunity to safeguard my wellbeing.

Take Note:

I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.

I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment. I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.

I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.

I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.

Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due. Undertaking the vaccine as a condition to avoid work termination will not release, or absolve, you of the above numbered points and may be deemed a trespass without a written coram judice warrant. (See George v Rockett {1990} HCA 26‐170 CLR 106)

I have also raised concerns and questions in previous emails and have not received a written response to those concerns.

I expressly reserve all my rights, Religious and sovereign inclusive.

[31] Mr Johnson gave evidence that on 7 December 2021, Patrick Mahoney, the respondent’s Vice President, Finance and Operations Australia and New Zealand, arranged a Microsoft Teams meeting to discuss Mr Monaghan’s response to the Show Cause Letter and confirm the disciplinary outcome. Mr Johnson said that he requested Mr Mahoney to communicate with the applicant by sending him a calendar invitation. Mr Johnson said that the email requesting the Teams meeting refers to 3:00 pm Australian Eastern Standard Time (AEST) – that is, Queensland time – but the calendar invite would convert to 4:00 pm Australian Eastern Daylight Time (AEDT) – that is, Victorian time – at the applicant’s end. He said that the email was sent at 1:20 pm AEST (being 2:20 pm AEDT) for a meeting at 3:00 pm AEST, which is 4:00 pm AEDT. He said that while this looked like the respondent gave the applicant 40 minutes’ notice of the meeting, the notice was actually around 2 hours.³⁶ This is not in dispute,³⁷ and I accept the evidence.

[32] The applicant did not attend the meeting. His evidence was that he was on the road that day, that he had a luncheon appointment with the surgeon from the Austin Hospital at a café located in Heidelberg near the Austin Hospital. His evidence was that he was not required to show proof vaccination at the café because he frequents the café and “they would just invite [him] in”, he did not use a QR code to check in and paid in cash for lunch. Thereafter he attended Officeworks to collect some supplies.³⁸

[33] The applicant’s evidence was that he did not look at his emails until he returned to his home towards the end of the day.³⁹ There is no diary entry of the meeting⁴⁰ and the surgeon was not called to give evidence.⁴¹ The applicant did not set out any of this explanation of his whereabouts on 7 December 2021 in his written material filed before the hearing and the first occasion this explanation was given occurred during his oral evidence in cross examination.⁴² The applicant’s account of his whereabouts on 7 December 2021 seems farfetched and bears all the hallmarks of a recent invention. I do not accept his evidence. Nevertheless, I will accept that the applicant did not see Mr Mahoney’s meeting request until shortly before he responded.

[34] Shortly after 4:00 pm on 7 December 2021, the applicant responded to Mr Mahoney’s meeting request stating that it would take some time for him to organise a support person to attend the meeting and that he would be able to organise such a person in the next five days.⁴³ However, before this time and approximately 40 minutes after the 3:00pm proposed meeting time had passed, Mr Johnson sent the applicant a letter by email advising that his employment would be terminated with effect on 7 December 2021 and that he would be paid three weeks’ pay in lieu of notice.⁴⁴ Thus when the applicant responded, the termination of his employment had been effected. The letter of termination relevantly advised the applicant as follows:

. . .

Applied Medical acknowledges your concerns about the vaccine. However, Applied Medical has a duty of care to keep our team safe, which we must comply with. We cannot compromise the Policy, our duty of care obligations, or the safety of our team members, our customers or the community, by allowing you to work with team members and customers while you are unvaccinated.

Applied Medical considers that your conduct amounts to a breach of your Contract and the Policy, and has decided to proceed with the termination of your employment with notice, notwithstanding your conduct gives grounds for termination without notice.

In accordance with your Contract, Applied Medical is required to give you two weeks’ notice of termination. You will be provided an additional week as you are over 45 years of age and have more than two years’ continuous service with Applied Medical.

As you are unable to carry out the inherent requirements of your role without being vaccinated, Applied Medical is prepared to pay you in lieu of your notice period. Accordingly, your employment will formally come to an end on the date of this letter.

You will shortly receive payment in respect of your notice period, unpaid salary and superannuation and accrued but untaken annual leave.

. . .

[35] At all material times, the applicant had not received a dose of any COVID-19 vaccine, and this remained the case at the time of the hearing of the applicant’s application on 26 April 2022.⁴⁵ As earlier noted, at the time of the applicant’s dismissal the operative CHO Directions were set out in the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) which operated from 18 November 2021 to 15 December 2021.

[36] I turn to consider whether the applicant’s dismissal was unfair.

Whether dismissal was unfair

Protection from unfair dismissal

[37] An order for reinstatement or compensation may only be made if I am satisfied the applicant was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair. Section 382 of the Act sets out the circumstances that must exist for the applicant to be protected from unfair dismissal and there is no dispute, and I am satisfied, that he was, on 7 December 2021, protected from unfair dismissal within the meaning of s 382.

[38] The applicant’s dismissal will have been unfair if, on the evidence, I am satisfied that all of the circumstances set out in s 385 of the Act existed. There is also no dispute that the applicant was dismissed at the initiative of the respondent within the meaning of s 386(1)(a). The respondent is not a small business employer, so the Small Business Fair Dismissal Code is not engaged, and the applicant’s dismissal was not a case of genuine redundancy within the meaning of s 389.

Harsh, unjust or unreasonable

[39] A consideration of whether a dismissal was harsh, unjust or unreasonable, requires the following matters in s 387 of the Act be taken 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.”

[40] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.⁴⁶ To take into account the matters set out in s 387 means that each of the matters must be treated as a matter of significance in the decision-making process⁴⁷ and requires the decision maker to evaluate it and give it due weight, having regard to all other relevant factors.⁴⁸ In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁴⁹

[41] The phrase “harsh, unjust or unreasonable”, finds no definition in the Act, but a dismissal may be harsh but not unjust or unreasonable; it may be unjust but not harsh or unreasonable; or may be unreasonable but not harsh or unjust. There will be cases where these concepts will overlap. In any given case all the concepts may be present, or only some, or none. A dismissal may be unjust because the employee was not guilty of the misconduct on which the employer acted. It 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.⁵⁰ But the assessment of whether any or all of these concepts is present in a given case of dismissal is undertaken in a statutory context and it is the matters set out in s 387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable.

[42] Before turning to consider the matters that must be taken into account, it is necessary to briefly say something about the applicant’s submissions. The applicant has not in terms addressed the relevant statutory matters earlier set out. His outline of submissions filed before the hearing is scant and says little more than that the respondent had not followed due process, had steamrolled towards an outcome leaving the applicant’s concerns (presumably about COVID-19 vaccinations) unaddressed, and complains about the short notice of the proposed meeting on 7 December 2021. His final written submission reiterates the “due process” theme, the failure by the respondent to respond to his concerns, and contends that without his concerns being addressed, he could not give his informed consent. I will return to these submission as required further below.

[43] The applicant also contends that he had raised “Religious rights in [his] reply which were totally ignored by Mr Johnson”. This submission cannot be accepted. It is contrary to the evidence he gave during cross-examination recorded in the transcript extracted below:

No and you did not hold a religious objection to the receipt of the COVID-19 vaccination?---I did hold an objection but the religious objection was taken away as a case – an exemption, an allowable exemption, so I - - -

Sorry, you did have a religious objection?---The exemptions for not getting vaccinated kept on getting, you know – in fact, pregnancy I don't think is an exemption.

I'm not asking you about that, you've dealt with that.  I'm asking you about the religious objection?---Yes.

Is your evidence to the Commission that you had, prior to your termination, a religious objection to the receipt of the COVID-19 vaccination?---All of these vaccinations have used foetal cells that were obtained in 1945, I think, so I'm a Catholic and have had an objection but that's okay.

Mr Monaghan, you did not state to your employer prior to your termination that you had any religious objection?---No because it - - -

No.  Is the answer no?---No, no.  The answer is no.

No, not at all.  Not even a hint at that time?---No because I went to my doctor and my doctor told me that that doesn't suffice.⁵¹ [Emphasis added]

[44] The applicant also made submissions about the adverse consequences of COVID-19 vaccines in seeking to establish that his concerns about receiving COVID-19 vaccines were legitimate but other than providing material secured from various websites and providing a link to https://apps.tga.gov.au/PROD/DAEN/daen-report.aspx, the applicant led no medical or scientific evidence to support his contention. More relevantly, the linked site contains self-reported adverse events and the site itself contains the following cautionary note to readers:

An adverse event report does not mean that the medicine is the cause of the adverse event.

[45] The contention is rejected because it is not supported by any probative evidence. However, to the extent that the applicant had concerns about any adverse effects of the available vaccines, these are matters he ought to have discussed with his medical practitioner. There is no evidence from any medical practitioner that the applicant raised these concerns, or if he did, there is no evidence from such practitioner about the advice he was given. The respondent was not in a position to assuage any such concerns.

[46] Although the applicant purported to give evidence about the efficacy of MRNA technology and vaccines for the COVID-19 virus,⁵² he acknowledged that he possessed no scientific qualifications that enabled him to express an informed opinion about the subject and that his views came largely from the use of the internet and unspecified articles found on “Google Scholar”.⁵³ The applicant’s opinions are of no assistance to make good his claims.

Valid reason – s 387(a)

[47] The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced.⁵⁴ The issue is whether there was such a valid reason related to the applicant’s capacity or conduct. Whether conduct which is said to found a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.⁵⁵ The existence of a valid reason is not ascertained by asking whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.⁵⁶ A reason would be valid because the conduct occurred, and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination.⁵⁷ It is not necessary to show the misconduct as sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).⁵⁸ An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) may also be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.⁵⁹

[48] The respondent contends that there are two valid reasons for the applicant’s dismissal. The first relates to his conduct in failing to comply with the respondent’s COVID-19 vaccination direction embodied in its policy. It is contended that such conduct was a breach of the policy and the applicant’s employment contract. The second relates to his capacity. The respondent contends that by reason of the applicant’s status as an unvaccinated person, the requirements of its policy and the requirements of its healthcare provider clients which were bound to apply the operative CHO Directions, the applicant could not attend premises operated by these clients and so he could not perform the inherent requirements of his position which entailed visiting these clients’ healthcare facilitates.

[49] As earlier noted, the applicant did not in terms address the issue whether there was a valid reason for his dismissal related to his capacity or conduct save to indicate that his concerns about receiving a COVID-19 vaccination were reasonable and were not addressed by the respondent.

[50] That the applicant failed to adhere to the requirements of the respondent’s policy is not in dispute, and I am satisfied that the applicant did not comply. The issue next raised is whether the policy requirement was a lawful and reasonable direction. A term that is implied into a contract of employment is the obligation that an employee will obey the employer’s lawful and reasonable directions. Here there was an express term to that effect – clause 5.5 of the applicant’s employment contract provided that he “must comply with all lawful orders and instructions given by” the respondent. Moreover, clause 5.6 of the employment contract required the applicant to comply with all of the respondent’s policies. It is not to the point that the respondent’s policies were not incorporated into the contract. That simply means the policies are not enforceable contractual terms. Separately, the contract required the applicant to comply with the respondent’s policies. That express term is enforceable and a failure to do so amounts to a breach of that term the contract.

[51] The requirement that a direction – in this case contained in the respondent’s policy – be lawful means that an employer cannot insist an employee act unlawfully and the direction given must be within the scope of the employment contract. The respondent’s policy direction to the applicant and the extended compliance date communicated to the applicant, required him to have received a first dose of a COVID-19 vaccine by 1 December 2021. The respondent’s healthcare clients, serviced by the applicant, were required by the operative CHO Direction to collect information about the vaccination status of persons who would perform work at their premises and were not permitted to allow persons who were unvaccinated (or presumed to be unvaccinated) to attend their premises to perform work. Given the applicant’s role and the requirements of the respondent’s healthcare clients, the policy direction was lawful and was within the scope of the employment contract. Moreover, the contract itself requires compliance with the respondent’s policies. The vaccination policy and the direction contained in it were entirely consistent with the terms of the CHO Direction in force at the relevant time, with which the respondent’s healthcare clients were required to comply. The direction was also consistent with the applicant’s employment because being vaccinated was a condition precedent, imposed by the CHO Directions on the respondent’s healthcare clients, which had to be satisfied before those clients could allow the applicant to attend their premises for the purpose of carrying out his duties as a Territory Manager for the respondent.

[52] The direction imbedded in the respondent’s policy was also reasonable. As the evidence discloses, the respondent consulted its employees, including the applicant, about its proposed policy, before implementing the policy. Given its position and commercial relationships with various healthcare providers and the requirements of the CHO Directions imposed on them, the direction given to the applicant was reasonable. It plainly had an evident or intelligible justification, and the object and purpose of the direction was to enable the respondent’s clients to comply with their legal obligation under the CHO Directions vis-à-vis the applicant and to enable the applicant to fulfil the duties for which he was employed to perform. It must be accepted that the practical effect of the respondent’s policy direction was to apply pressure on the applicant to surrender his bodily integrity in circumstances where he would prefer not to do so. This is a relevant matter in assessing the reasonableness of the direction. However, this consideration is in my view soundly outweighed by the legal requirement imposed on the respondent’s healthcare clients to collect vaccination information about persons who would perform work at the premise, and to not allow the applicant to attend their premises to work if he was not vaccinated.

[53] The effect of the respondent’s policy direction was that the applicant must be vaccinated as a condition of being able to carry out his duties at the premises of the respondent’s health care clients. The failure to become vaccinated pursuant to the respondent’s direction meant that the applicant could not meet the requirement that only vaccinated persons could be permitted to attend the respondent’s health care clients’ premises to perform work. The employment ended because the applicant could not meet the condition and the respondent could not send the applicant to perform work at premises operated by its healthcare clients. As I have already noted, the applicant’s role required him to attend such premises to carry out his duties as Territory Manager. It was not feasible for the applicant to carry out his role and to fulfil the requirements of the role remotely from home. For these reasons I am satisfied that the respondent’s direction contained in its policy directed to the applicant was a lawful and reasonable direction with which the applicant was required to comply and did not comply. I am therefore satisfied that the applicant’s failure to comply with the respondent’s policy direction was a valid reason for the dismissal related to his conduct.

[54] The operative CHO Directions required the respondent’s healthcare clients to take all reasonable steps to ensure, inter alia, that the applicant, who was at all material times an unvaccinated person, did not enter, or remain on, their premises for the purpose of performing work. The applicant was not an excepted person. That the applicant was vaccinated or was an excepted person was a requirement externally imposed (and by reason of the respondent’s policy also imposed by it) on the applicant’s role because the role required the applicant to attend physically at the premises operated by the respondent’s health care clients to perform his duties. The applicant had to meet this precondition to enable that to occur.

[55] There is little doubt that the applicant was entitled to refuse or decline to become vaccinated. The administration of any vaccine requires the informed consent of the recipient. The applicant made a choice and did not receive the first dose of a COVID-19 vaccine by 1 December 2021 or since. However, the choice had consequences. It meant that the applicant was unable to perform the inherent requirements of his role which required him to attend healthcare premise. Moreover, I am persuaded that at the time of the applicant’s dismissal it was reasonably clear that the Health Orders (which came to replace the CHO Directions) would remain in place in Victoria for some period of time and would impact the capacity of the respondent to deploy some of its staff, including the applicant, to facilities operated by many of its healthcare clients. As a matter of fact, such orders operated throughout the remainder of 2021 and the first half of this year. At the time of the hearing the Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 7) which operated from 12 April to 12 July 2022 was in force. In these circumstances, I am satisfied that at the time of his dismissal the applicant was unable to perform the inherent requirements of his role because he did not have the requisite capacity to do so. This also provides a valid reason for the applicant’s dismissal which related to his capacity.

[56] That there was a valid reason for the applicant’s dismissal weighs against a conclusion that his dismissal was unfair.

Notification of the reason for dismissal and opportunity to respond – s 387(b) – (c)

[57] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,⁶⁰ in explicit terms,⁶¹ and in plain and clear terms.⁶² This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it were sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.⁶³ An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[58] I consider that the applicant was notified of a valid reason for dismissal and I accept that he was given an opportunity to respond before the decision to dismiss was taken, albeit a truncated opportunity. As I had earlier set out in the background facts, the reasons for the proposed termination of the applicant’s employment were set out in the respondent’s correspondence to him of 3 and 6 December 2021. Therein the reason for the proposed dismissal is communicated to the applicant and relevantly concerns his failure to comply with the respondent’s policy by not receiving the first dose of COVID-19 vaccine by 1 December 2021 or applying for an exemption under the policy. The correspondence describes this conduct as a failure to follow a lawful and reasonable direction in breach of the applicant’s contract of employment and the respondent’s policy.⁶⁴ That correspondence also sets out the conditions imposed by various of the respondent’s healthcare customers – that any person attending their facilities be vaccinated – and the requirements of the applicant’s position as a Territory Manager to visit such facilities. The latter of the two pieces of correspondence invites a response in writing by 5:00pm on 7 December 2021 and advises the applicant that the respondent will take into account any response provided before taking any decision.⁶⁵

[59] The applicant did not access his emails and so did not see the correspondence until 6 December 2021. He provided a response to the proposed reason for his dismissal on that day, the text of which is earlier set out.⁶⁶ The substance of the applicant’s response focused on his concerns about mandatory vaccinations and about the legal basis on which vaccine mandates are made. The respondent’s letter of termination of 7 December 2021 acknowledges the applicant’s concerns about vaccination but points to its obligations to other employees and relevantly the applicant’s capacity to attend to his duties at premises operated by its healthcare customers whilst not being vaccinated as overriding factors.⁶⁷

[60] The applicant did not attend the scheduled meeting at 3:00pm on 7 December 2021 because he did not check his emails during the day. The respondent ought to have made some enquiries about whether the applicant had received its invitation to the meeting before proceeding to terminate his employment, apparently on the assumption that the applicant was being evasive.⁶⁸ The meeting was proposed on rather short notice. The applicant gave evidence that in addition to his response set out in his 6 December 2021 email he would have raised some alternatives to dismissal with the respondent had he been given the opportunity to do so. The applicant acknowledged that he did not raise these matters with the respondent at or around the time of his dismissal.⁶⁹ The substance of the applicant’s contention in this regard is set out in the extract of the transcript reproduced below:

THE DEPUTY PRESIDENT:  Yes.  All right.  Well, Mr Monaghan, as I indicated earlier I'll give you an opportunity to raise any matter or say anything you wish to say which arises out of cross-examination.  Just so that we're clear this is a matter by way of clarification or amplification of any answer that you might have given during cross-examination.  This is not an opportunity to introduce new material that currently isn't before the Commission.  All right?  So, go ahead?---I understand.  So in the letters that were sent through to myself - or the time of all those letters were that there was opportunity to look at alternative arrangements and those alternative arrangements were never discussed.  One of the things I wanted to raise was that Adrian Lee who is the area manager had sent an SMS to me after a session of training for the southern region, saying, 'Had you ever considered learning and development?'  And that was a part of what was raised when Patrick Mahoney and Stuart Johnson were calling around to everybody that day, talking about the policy, was to talk about what other alternative arrangements would be there.  And I thought that Applied would be open to alternative arrangements, would also be open to a discussion in regards to leave without pay or - - -

Did you raise any of these issues with your employer?---No.  But I thought my employer would raise the - so the communication was from my employer to myself and I thought that - you know - with the vaccination status, obviously not changing that my employer would be contacting me, along with others, in regards to movement forward.  And I expected that discussion to be had.  You know?  To be had post December 1.

Well, did you express that expectation in your correspondence to your employer on 6 December?---The expectation?

Yes?---I did express it in my correspondence of - with my list of concerns - that was listed on page 60, that I did express that I wanted to maintain open channels of communication.  I'm sorry, at page 61, where I said, 'I look forward to your response as I have looked into this issue from several perspectives and may have more questions as we navigate our way through this constantly changing landscape.'  And I also mentioned in that meeting which is in the notes that let some - the mandates will come and they will go at different stages - and there are colleagues of mine, as territory managers, that have been - you know - kept on Applied Medical's books whilst they look for alternatives to their MRNA vaccine, such as Novavax.  And I think that - - -⁷⁰

[61] The minutes of the meeting of 18 October 2021 indicate that the applicant discussed with Mr Johnson and another his feedback on the respondent’s draft policy. There is a notation that “Gerard indicated he wished to discuss possible opportunities with Adrian Lee, the area business manager for any alternate skill related roles that matched his ability to continue with Applied Medical” which indicates that he raised the issue of an alternative role or roles. However, there is no evidence that the applicant held or sought to hold discussions with Mr Lee about alternatives. Moreover, Mr Johnson explained during cross-examination why alternative arrangements leading up to the dismissal were not discussed:

MR MONAGHAN:  So the question that I asked was, is it usual for you to set up a time for a meeting that could lead to termination with a matter of an hour or two's notice to actually attend, when you're inviting somebody to bring in a support person?  Is it normal company policy to have that on the same day, in the same afternoon?---Well, considering the deadline - again, we go back to the deadline of 1 December and the conversations we were having back in September.  It's hardly a surprise, again, because we referenced the disciplinary action and possible termination should you not comply, that that would proceed.  So we were trying to be as accommodating and reasonable as possible, considering you were on personal leave, hence why we agreed to send you the show cause letter, which you recall, on the day you returned, being 6 December, and then provided you further time, until 5 pm on 7 December, to respond to that.  You chose to respond to that sooner, on the Monday, the 6th.  That response itself, I think we've touched on that already, but ultimately, in our mind, it didn't seem that you were looking towards alternative arrangements, or provide anymore information around medical exemption, consideration of other vaccinations, or anything that would be conducive to you being able to return to your role as a territory manager.  So I don't think it's an unreasonable timeframe that was provided, no.⁷¹

[62] It seems to me that if there were viable alternatives that the applicant wished to explore, he ought to have taken steps to explore those alternatives well in advance of his dismissal, given that he raised the prospect of discussing alternatives with Mr Lee back in the middle of October 2021. There is no evidence that he took any steps to do so at any time between mid-October 2021 and the date of his dismissal. Furthermore, there is no evidence that there were available any viable alternatives and if there were, perhaps the applicant ought to have raised them in his correspondence of 6 December 2021 – but he did not. The applicant has not otherwise advanced anything of substance that he would have put to the respondent, had he had the opportunity to do so on 7 December 2021. Indeed, the applicant’s evidence was that had he had the opportunity to attend the meeting with his employer on 7 December 2021, his response would have been largely to go through the matters that are set out in his email of 6 December 2021.⁷²

[63] Although the events in the first week of December 2021 leading to the applicant’s dismissal on 7 December 2021 were less than optimal, ultimately the reason for the applicant’s dismissal was communicated to the applicant before his dismissal took effect and he was given an opportunity, and he took up that opportunity, to respond to the reason.

[64] These matters also weigh against a conclusion that the applicant’s dismissal was unfair.

Any unreasonable refusal by the employer to allow the person to have a support person – s 387(d)

[65] This consideration is concerned with whether there was any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to the dismissal. There is no suggestion that there was any refusal. In any event, ultimately there were no discussions relating to the dismissal save for the consultation that occurred in mid-October 2021 concerning the respondent’s proposed policy. In the circumstances this consideration weighs neutrally.

Warnings regarding unsatisfactory performance – s 387(e)

[66] The applicant’s dismissal was not related to any unsatisfactory performance and so this consideration does not arise.

Impact of the size of the respondent on the procedure followed – s 387(f)

[67] The consideration in s 387(f) of the Act is concerned with the likely impact of the size of an employer’s enterprise on the procedures followed by the employer. The respondent is a large and well-resourced employer. Its size and available resources meant that it had available to it the capacity to obtain advice about the procedure that it adopted. But there is no evidence that its size negatively impacted the procedure it adopted to effect the applicant’s dismissal. This consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

[68] This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have impacted on the procedure it adopted to effect the applicant’s dismissal. There is no evidence that there was an absence of any dedicated human resources management specialists or expertise” much less that such an absence had any material impacted on the procedure it adopted to effect the applicant’s dismissal. The consideration does not arise.

Any other matters that the Commission considers relevant – s 387(h)

[69] In his written submissions the applicant raises contentions about the absence of informed consent by reason of the respondent’s failure to answer his concerns, the failure to take into account his “religious rights” and his concerns about the potential adverse consequences of receiving a COVID-19 vaccine. I have addressed two of these matters earlier, and I simply note here that neither matter carries any weight favouring a conclusion that his dismissal was unfair. As to the failure by the respondent to address applicant’s concerns first expressed in his feedback email of 27 September 2021, these concerns are largely about the efficacy and approval of available vaccines, which should be directed elsewhere, and some are self-evidently nonsensical. That the respondent did not reply is understandable and is not a matter that points to any unfairness in the applicant’s dismissal in the circumstances of this case.

Conclusion

[70] There were valid reasons for the applicant’s dismissal related to his capacity and his conduct. There was no substantive procedural unfairness involved in the way the dismissal was effected and none of the matters raised by the applicant point to unfairness in the dismissal. The other mandatory considerations either weigh neutrally or do not arise. In these circumstances I am not persuaded that the dismissal was harsh, unjust or unreasonable. The applicant’s dismissal was therefore not unfair and his application for unfair dismissal remedy will therefore be dismissed.

Order

[71] I order that the application by Gerard Monaghan in U2022/460 for an unfair dismissal remedy be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr G Monaghan appeared self-represented

Mr M Lundberg, Solicitor for the respondent

Hearing details:

2022
Melbourne (by Video)
26 April

Printed by authority of the Commonwealth Government Printer

<PR743094>

1 Exhibit 2 at [6]

2 Ibid at [3]-[5]

3 Ibid at attachment 1

4 Ibid

5 Ibid

6 Ibid at attachment 2

7 Ibid

8 Transcript PN145 – PN175

9 Ibid at [9]

10 Ibid at [13] –[17]

11 Ibid at attachment 4

12 Ibid at attachment 6

13 Ibid at [18]; See also for example, attachment 6

14 Ibid at [19]

15 Ibid at [25]; attachment 7

16 Ibid at attachment 7, clauses 2 and 4

17 Ibid at [27], attachment 8

18 Ibid

19 Transcript PN724

20 Exhibit 2 at attachment 9

21 Transcript PN722 – PN730

22 Exhibit 2 at [33], attachment 10

23 Ibid at attachment 11

24 Ibid at clause 4

25 Ibid at clause 2

26 Ibid at [36] – [37]; attachment 12

27 Ibid at [39]

28 Supplementary Written Statement of Stuart Michael Johnson (4 May 2022) at [6] – [7]

29 Exhibit 2 at [50]; attachment 18

30 Transcript PN54

31 Transcript PN392

32 Exhibit 2 at [51]; attachment 19

33 Transcript PN434-PN439

34 Exhibit 2, attachment 21

35 Exhibit 2, attachment 22

36 Exhibit 2 at [61]-[62];

37 Transcript PN547-PN548

38 Transcript PN557 – PN651

39 Transcript PN644

40 Supplementary Written Statement of Stuart Michael Johnson (4 May 2022) at [13] and attachment 30

41 Transcript PN565

42 Transcript PN565-PN568

43 Exhibit 2, attachment 25

44 Exhibit 2, attachment 24

45 Transcript PN101

46 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

47 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

48 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

49 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

50 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465

51 Transcript PN304-PN310

52 Transcript PN 55

53 Transcript PN72-PN78

54 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

55 Briginshaw v Briginshaw [1938] 60 CLR 336

56 King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24]

57 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]

58 Ibid

59 Ibid

60 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

61 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

62 Previsic v Australian Quarantine Inspection Services Print Q3730

63 See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s 170CG(3)(b) and (c) of the Workplace Relations Act 199

64 Exhibit 2, attachments 19 and 20

65 Ibid

66 Exhibit 2, attachment 22

67 Exhibit 2, attachment 24

68 Transcript PN857

69 Transcript PN654

70 Transcript PN653 – PN656

71 Transcript PN856

72 Transcript PPN587