[2011] FWA 317 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ly Eng
v
Goodman Fielder Limited
(U2010/8481)
COMMISSIONER GOOLEY |
MELBOURNE, 18 JANUARY 2011 |
Application for unfair dismissal remedy.
[1] Mr Ly Eng was employed by Goodman Fielder Limited (“Goodman Fielder”) from February 2001 until his employment was terminated on 21 April 2010.
[2] Mr Eng lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (“FW Act”) alleging that he was unfairly dismissed. The application was referred to conciliation on 24 May 2010, and then for hearing on 24 September 2010.
[3] Goodman Fielder is a publicly listed food manufacturer which produces a range of products including bread, milk and margarine. 1 It operates bakeries at Clayton South, Dandenong and Ballarat. In addition to manufacturing Goodman Fielder delivers its products. Mr Eng was employed as truck driver at the time of the termination of his employment. He was required to deliver bakery products and perform work in the yard at the Clayton South site.
[4] Mr Pinchen appeared with permission for Mr Eng and Ms Ralph a legal practitioner appeared with permission for Goodman Fielder.
[5] Mr Eng gave evidence on his own behalf and Mr Kumar, Ms Wauchope, Mr Nguyen and Mr Witham gave evidence for Goodman Fielder.
Jurisdiction of Fair Work Australia
[6] There is no dispute that Mr Eng is a person who was protected from unfair dismissal. Further Goodman Fielder is not a small business and it was not submitted that Mr Eng had been made redundant. Therefore Fair Work Australia has the jurisdiction to determine the application.
The Evidence
[7] Mr Eng is 42 years old of Cambodian descent. He came to Australia in 1983 and attended high school for year 10. English is not his first language.
[8] Mr Eng’s employment was terminated for serious misconduct. 2 He was however paid four weeks pay in lieu of notice.3
[9] The facts in this matter are not substantially in dispute.
[10] Mr Eng was observed by Mr Kumar, another worker at the site, urinating into a storm water drain in the loading bay on 14 April 2010.
[11] Mr Kumar was a labour hire worker at Goodman Fielder and he had worked there since October 2007. He gave evidence that he saw a man with his back toward the truck urinating into a drain and that he reported the incident the next day. 4 Mr Kumar did not know the man by name but knew he drove trucks for Goodman Fielder.5
[12] Mr Eng gave evidence that on 14 April 2010 he was called by Mr White and told he needed a bigger truck to do a delivery and Mr Eng was under time pressure to swap his truck. He gave evidence that upon jumping from his truck he felt a lot of pain and he needed to urinate. 6 Because his security pass, which he needed to access the toilets, was in his truck he decided to urinate into the storm water drain. It was his evidence that he had his back to the walkway.7 He said he “made sure [he] was not in plain view of anyone and [he] was somewhat hidden by [his] truck and an air compressor machine. [He] considered going to the toilets but they were some distance away, [he] was in pain and felt under immense pressure to not delay the deliveries any further.”8
[13] This incident was reported to Mr Witham who was the Regional Network Supply Manager (Southern Region) and Mr Eng’s manager. 9 Mr Witham investigated the allegation and met with Mr Eng on 16 April 2010 and put the allegation to him.10 Mr Witham arranged for Mr Van Nguyen, a load bay supervisor with Goodman Fielder, to attend the meeting as a support person/witness.11 Mr Witham also raised with Mr Eng that he had not washed his hands after urinating. Mr Eng admitted that he had urinated into the storm water drain. Mr Witham explained to Mr Eng that this conduct was unacceptable. Mr Witham said that Mr Eng explained that he needed to urinate quickly and said he did not think it was a big issue as the water in the drain was already dirty.12 Mr Witham explained that the conduct was against the law, offensive and unhygienic.13 Mr Witham also put to Mr Eng that he could have been seen by other employees of Goodman Fielder and neighbouring businesses.14 Mr Witham asked Mr Eng why he did not use the toilet which was no more than 100 metres away.15 Mr Witham told Mr Eng that he would take the matter up with Human Resources.16
[14] Mr Nguyen’s evidence 17 was consistent with Mr Witham’s evidence.
[15] On 19 April 2010 Mr Eng wrote a letter to Mr Witham in which he sincerely apologised for his conduct. 18 Mr Eng also advised Mr Witham that he feared that losing his job could jeopardise his marriage.
[16] Mr Witham discussed the incident with Ms Wauchope, the Goodman Fielder Human Resources Advisor, and it was decided to give Mr Eng a show cause letter. That letter advised Mr Eng that his conduct in urinating in the storm water drain and failing to wash his hands afterwards was serious misconduct and in breach of a Goodman Fielder’s Code of Conduct - Behaviour in the Workplace Policy, Site Quality/Hygiene Policies and Procedures and Workplace Health and Safety Policies and Procedures. 19 Mr Eng was invited to show cause why his employment should not be terminated.
[17] Mr Eng was asked to come into work and he was told he could bring a support person with him. Mr Eng attended the meeting but did not bring a support person. Mr Wauchope was also in attendance at this meeting. Mr Witham gave Mr Eng a copy of his record of the meeting on 16 April 2010. Mr Witham went through the show cause letter and Mr Eng was told he needed to respond to this by 21 April 2010. 20
[18] On 21 April 2010 Mr Eng provided Mr Witham with his response to the show cause letter. 21 In that letter Mr Eng explained how he came to urinate in the storm water drain. He also said he always wore gloves when working and therefore his bare hands never touched the food products. Mr Eng asked for another chance and promised never to this again.
[19] Mr Witham discussed Mr Eng’s response with Ms Wauchope and, after taking a range of matters into account, 22 decided to terminate Mr Eng’s employment. Mr Eng was called back for another meeting. He was again advised that he could have a support person with him. Ms Wauchope was in attendance at the meeting. Mr Witham went through the letter of termination23 and told Mr Eng that his employment would be terminated and he would be paid four week’s pay in lieu of notice. Mr Eng was asked if he had any questions or issues he wished to raise. Mr Eng asked if there was anything he could do to change their minds but Mr Witham said no.24
[20] Mr Witham gave evidence that he made inquiries as to whether any similar incidents had occurred and he said that an employee who had been caught urinating in the crate wash area at another site had had his employment terminated. 25 However no detailed evidence was given about this incident.
[21] Mr Witham said that Mr Eng did not tell him prior to the termination of his employment about any medical condition that caused him to have a need to urinate urgently.
[22] Mr Witham exhibited the relevant Goodman Fielder Policies 26 but no evidence was given that Mr Eng had seen these policies or had acknowledged understanding the policies. Mr Eng was not cross examined on the policies. Mr Eng was asked if he was aware of the hand washing signs in the factory and he accepted that this was a direction to employees about hygiene at the site.27
[23] Mr Eng does not dispute much of this evidence about what happened after 14 April 2010. He gave evidence that because English was not his first language he did not fully understand what was happening in the meeting on 16 April 2010.
[24] Mr Eng gave evidence that he had an unblemished work record with Goodman Fielder. 28 Mr Witham did not agree.
[25] Mr Witham gave evidence that Mr Eng was spoken to about an accident in May 2009 which caused damage to a semi trailer. 29 Mr Witham also gave evidence that he had observed Mr Eng on 9 April 2010 having a shower when he was rostered to work. Mr Witham spoke to Mr Eng on 14 April 2010 about this incident. Mr Nguyen was also present at the meeting. Mr Eng admitted leaving work early but said it was because he didn’t have any work to do. Mr Witham told Mr Eng that he was supposed to work in the yard if his deliveries were finished. Mr Witham told Mr Eng he could not be supervised all the time and “that it was important that [he] trusted him to do the right thing when [he] was not around.”30 As a result Mr Eng was required to report to his supervisor at the end of his shift.
[26] Mr Eng did not dispute this but his explanation was that there was no work in the yard for him to do and that other workers often stopped work before the end of the shift. 31 Mr Witham did not take this incident into account in deciding to terminate Mr Eng’s employment.
[27] A number of photos 32 were tendered along with some Google maps of the site33 and a hand drawn map of the site.34
The Submissions
[28] In submissions filed by Mr Eng on 19 July 2010 35 Mr Pinchen submitted that there was no valid reason for terminating Mr Eng’s employment. In summary Mr Pinchen submitted that:
[29] In submission filed by Goodman Fielder on 23 August 2010 36 it was submitted that Mr Eng’s conduct was serious misconduct. In summary it was submitted that:
Was the Termination of Employment Harsh, Unjust or Unreasonable?
[30] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387 (a) whether there was a valid reason for the dismissal related to Mr Eng’s capacity or conduct (including its effect on the safety and welfare of other employees);
[31] I am required to determine if urinating in a storm water drain and not washing his hands afterwards is a valid reason for terminating Mr Eng’s employment.
[32] Much time was taken up at the hearing examining images to determine whether Mr Eng could be seen by someone on the side road or on Whiteside Road. Mr Eng’s evidence was that he attempted to conceal his conduct and stood with his back to the walkway, 37 while it was Mr Kumar’s evidence that Mr Eng was standing with his back to the truck. I prefer Mr Kumar’s evidence to that of Mr Eng. Mr Kumar did not resile from this evidence in cross examination and it was not put to him that he could not see Mr Eng urinating and that he had only guessed what Mr Eng was doing. However I do not find that Mr Eng was being dishonest when giving this evidence. I merely conclude that his recollection of events is not accurate.
[33] It is clear from the evidence that no matter what Mr Eng’s intentions were, he was in fact seen urinating in the storm water drain by Mr Kumar.
[34] While Mr Eng thought he could not be observed he could. I however accept Mr Eng’s evidence that he attempted to conceal himself. Unfortunately for him he did not succeed.
[35] When the incident occurred Mr Eng was in the loading bay and so was his truck. The picture taken from Whiteside Road does not have a truck in the loading bay. In her submissions Ms Ralph put it that “it was possible that Mr Eng could be seen from Whiteside Road, [and] it also is possible that it might not be.” 38
[36] The picture relied upon to support the submission that Mr Eng could be seen from the neighbouring work site also does not have a truck in the picture. Ms Ralph in her submissions accepts that “there would be some obstruction because of the truck.” 39
[37] Mr Kumar gave evidence that he believed Mr Eng could have been seen from those places but that he did not check. His evidence was at best that someone could guess what Mr Eng has doing.
[38] On the evidence I am unable to find that Mr Eng could be seen by members of the public on the neighbouring site or from Whiteside Road.
[39] His conduct however was seen by another employee and was visible to any employee walking past him. However I find that this was unintentional.
[40] I accept Mr Eng’s evidence that he was under a time imperative when the incident took place. I accept Mr Eng’s evidence that he was in pain and needed to urinate urgently. It was not put to Mr Eng in cross examination that this was untrue. Mr Eng did not call any medical evidence to support his evidence but no submissions were made that I should disregard Mr Eng’s evidence about his pain in light of the absence of medical evidence.
[41] It was put to Mr Eng that he could have gone to the toilet earlier 40 but I accept his evidence in response to this question. I accept Mr Witham’s view that the time imperative should not have caused Mr Eng to do what he did it. Had Mr Eng’s only explanation of his conduct been that he was under a time imperative, I would have found there was a valid reason for the termination of his employment. However I accept that this time imperative when combined with his pain caused him urinate in the drain. I accept Mr Eng’s evidence that he did not consider that he could reach the toilet before he urinated.
[42] Goodman Fielder relied on Mr Eng’s breach of company policy to justify Mr Eng’s termination. It was submitted that both urinating outside of a toilet and failing to wash his hands was a breach of policy.
[43] However, given there was no evidence before the Tribunal that Mr Eng was aware of the policies, I am unable to make a finding that Mr Eng’s breach of the policy was a valid reason for the termination of his employment.
[44] While Goodman Fielder accepted that their policies did not expressly say that employees could not urinate outside of the toilet facilities I accept that it is not necessary to expressly include such a direction in the policy. It would go without saying that, without mitigating circumstances, all employees should know that urinating other than in a toilet was unacceptable.
[45] However, even if Mr Eng was aware of the policy, given my findings about why Mr Eng urinated in the drain I do not consider that he wilfully breached the policy and therefore this breach of policy would not provide a valid reason for the termination of this employment.
[46] The Goodman Fielder Baking Australia - National Hygiene Policy 41 is said to provide guidelines on Good Manufacturing Practices requirements within manufacturing areas to protect product from contamination. It is not clear on its face that Mr Eng’s failure to wash his hands after urinating was in fact in breach of this policy. Even so I do not consider that Mr Eng’s failure to wash his hands on one occasion when he was wearing gloves when working and there was no prospect that his bare hands would come into contact with product, would constitute a valid reason for the termination of his employment.
[47] I accept the evidence of Goodman Fielder that their reputation as a food producer could have been damaged had a member of the public seen Mr Eng urinating. 42 This factor weighs heavily in support of the submission that there was a valid reason for the termination of Mr Eng’s employment.
[48] I find that, in all the circumstances, there was not a valid reason for the termination of Mr Eng’s employment. It is not disputed that the conduct occurred and that urinating in a drain would, without mitigating circumstances, lead to a finding that there was a valid reason for the termination of Mr Eng’s employment. However in this case I have found that there were mitigating circumstances. It was Mr Eng’s evidence, and I accept his evidence on this point, that he could not have reached the toilets in time.
[49] I do not accept that a worker, in Mr Eng’s circumstances, faced with an urgent need to urinate, who attempts to urinate out of view in a drain, albeit unsuccessfully, should have their employment terminated. When asked by Ms Ralph as to what he would do in the future if he was in the same situation, Mr Eng replied that he would urinate in his pants. 43 This is not something that a worker should be required to do to avoid termination of his or her employment. Given Mr Eng’s circumstances, I do not find his failure to wash his hands after urinating is a valid reason for terminating his employment.
s387(b) whether Mr Eng was notified of that reason;
[50] Mr Eng was notified of the reasons.
s387(c) whether Mr Eng was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[51] Mr Eng was given an opportunity to respond. The procedures adopted by Goodman Fielder in this matter afforded Mr Eng procedural fairness.
s387(d) any unreasonable refusal by the employer to allow Mr Eng to have a support person present to assist at any discussions relating to dismissal;
[52] Mr Eng was advised that he was entitled to bring a support person and Mr Eng did not request a support person to be present.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Eng had been warned about that unsatisfactory performance before the dismissal;
[53] The dismissal did not relate to unsatisfactory performance.
s387(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
[54] Goodman Fielder is a very large employer and this would have no impact on the procedures followed in effecting the dismissal.
s387(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;
[55] Goodman Fielder is a very large employer and have dedicated human resources specialists so this would have no impact on the procedures followed in effecting the dismissal.
s387(h) any other matters that FWA considers relevant.
[56] I have had regard to Mr Eng’s length of service and employment record. I have had regard to Mr Eng’s contrition and his deep regret about his conduct. I have had regard to Mr Witham’s evidence that prior to making the decision to terminate Mr Eng’s employment he appropriately had regard to a range of matters including Mr Eng’s service and generally good conduct record. I have also had regard to the evidence that Mr Eng was warned about leaving work early on the same day that this incident occurred and that he was told that he was in a position of trust because he was unsupervised.
Conclusion
[57] The Tribunal is required to determine if the termination of Mr Eng’s employment was harsh, unjust or unreasonable having regard to the matters set out above.
[58] As the Full Bench in Lawrence v Coal and Allied Mining Services Pty Ltd T/A Mr Thorley Operations/Warkworth 44 stated, “[t]he leading statement of principle elucidating the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:45
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[59] In this case I have determined that there was not a valid reason for the termination of Mr Eng’s employment. Termination of Mr Eng’s employment in these circumstances was unfair. Even if my finding that there was not a valid reason for the termination of Mr Eng’s employment was incorrect, I would still have found that the termination was harsh, unjust or unreasonable. It is harsh because it is disproportionate to the gravity of Mr Eng’s misconduct. I have found that Mr Eng did not wilfully and without regard to his obligations engage in misconduct. I have found that there were mitigating factors which caused Mr Eng to engage in the conduct. In those circumstances the termination of Mr Eng’s employment was unfair.
Remedy
[60] One of the objects of Part 3-2 of the FW Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. I am also required when determining such remedies to ensure that a fair go all round is accorded to both the employer and the employee concerned.
[61] Section 390 of the FW Act empowers Fair Work Australia to order a remedy if an employee is unfairly dismissed:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[62] Mr Eng seeks reinstatement and payment of lost wages. Mr Pinchen submitted that the breakdown in the relationship between Mr Eng and Goodman Fielding was not irreconcilable. Mr Eng gave evidence of his attempts to find work. 46 It was Mr Eng’s evidence that at the time of the hearing he has been unable to find work. Mr Eng’s evidence was that he was using his accrued entitlements in this period. Mr Eng in cross examination advised that his daughter has a medical condition which impacted on his ability to accept certain jobs.
[63] Goodman Fielder opposes reinstatement because “the necessary trust and confidence between the Respondent and the Applicant has broken down and in the circumstances is not capable of restoration.” 47 Ms Ralph submitted that I should take account into that Mr Eng had engaged in this conduct on the same day he was told by Mr Witham that he needed to trust him as he worked unsupervised.48
[64] Ms Ralph submitted that Mr Eng had been replaced by casual labour and that there was no position for Mr Eng.
[65] Further Ms Ralph submitted that while Mr Eng was apologetic he was only apologetic after Mr Witham said he would refer it to Human Resources. While Ms Ralph wants me to infer that Mr Eng was not genuinely contrite it was not put to Mr Eng that he was only contrite after he realised how seriously Mr Witham was taking the matter.
[66] Ms Ralph also submits that should the Tribunal find that Mr Eng’s medical condition caused him to need to urinate urgently, then reinstatement is not appropriate as his medical condition may cause him to engage in the same conduct in the future.
[67] Ms Ralph, in the alternative, submitted that if Fair Work Australia was minded to reinstate Mr Eng, then Mr Eng’s misconduct should be taken into account in determining any amount to be paid to Mr Eng. She submitted that the failure of Mr Eng to disclose his medical condition to Goodman Fielder was the sole reason they did not have regard to it in reaching their decision. Ms Ralph submitted that Mr Eng should be denied compensation and continuity of service should not be maintained.
[68] Ms Ralph submitted that Mr Eng had not given evidence of any monies earned in the period from the dismissal until the hearing. In fact Mr Eng gave evidence that he had not earned any monies in this period.
[69] I have decided that it is appropriate that Mr Eng be reinstated.
[70] Mr Witham said he no longer has confidence in Mr Eng. I do not consider that this is necessarily a barrier to reinstatement. When employment is terminated, particularly for serious misconduct or misconduct, it is inevitable that some damage to the relationship of employment will occur. Mr Eng has been employed by Goodman Fielder for a significant period and his employment record, outside of the matters that Mr Witham gave evidence of, was described by Mr Witham as a “generally good conduct record”. 49 I see no reason why the relationship of trust cannot be re-established.
[71] I also do not accept Ms Ralph’s submissions that, given that I have found that Mr Eng’s medical condition contributed to his conduct, he should not be reinstated because he would engage in the conduct again. Mr Eng is on notice that his conduct was unacceptable to Goodman Fielder. I have no doubt that Mr Eng will ensure that his medical condition is managed in a way that ensures there is no repeat of this conduct.
[72] Section 391 of the FW Act sets out the possible orders to be made if reinstatement is to be ordered as follows:
“Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[73] I note Ms Ralph said in her submissions that there is no position for Mr Eng to return to, saying that his work was being performed by casuals.
[74] There was no evidence to support this submission. Mr Witham gave evidence that there was a shortage of drivers generally and that he had difficulty sourcing casual drivers. 50 Further there was evidence that Mr Eng had previously worked in the production area. He did not give evidence that there was no position for Mr Eng.
[75] I consider that it is appropriate to make orders reinstating Mr Eng to the position in which he was employed immediately before the dismissal. However if no such position exists then I will order that Mr Eng be appointed to another position on terms and conditions no less favourable than those on which he was employed immediately before the dismissal
[76] I also consider it appropriate to order continuity of Mr Eng’s service.
[77] Given my finding that Mr Eng engaged in this conduct in part due to his medical condition, I do not accept Ms Ralph’s submissions that there should be a reduction in the amount to be paid for lost earnings due to his misconduct. I will therefore make orders that Mr Eng be paid an amount equal to the amount he would have earned in the period from his dismissal until the date of his reinstatement less any monies earned by him in this period and less applicable taxation. If the parties are unable to reach an agreement on this amount, I will list the matter for determination of the amount to be paid.
COMMISSIONER
Appearances:
G Pinchen for the Applicant.
S Ralph for the Respondent.
Hearing details:
2010.
Melbourne:
September, 10.
1 Exhibit R6 at [6]
2 Exhibit R5 at DW8
3 Ibid
4 Exhibit R2 at [2]
5 Ibid at [6]
6 Exhibit A1 at [4]
7 Transcript PN 95
8 Exhibit A1 at [4]
9 Exhibit R5 at [1], [4], and [18]
10 Ibid at [25]
11 Ibid at [24]
12 Ibid at [27]
13 Ibid at [28]
14 Ibid at [29]
15 Ibid at [30]-[31]
16 Ibid at [32]
17 Exhibit R 4
18 Exhibit R 5 at DW2
19 Ibid at DW3
20 Ibid at [48]
21 Ibid at DW 7
22 Ibid at [61]
23 Ibid at DW 8
24 Ibid at [65]-[67]
25 Ibid at [23]
26 Ibid at DW 4
27 Transcript PN 305-308
28 Exhibit A1 at [3]
29 Exhibit R5 at [6]
30 Ibid at [16]
31 Transcript PN 143 and 149
32 Exhibits A2 and A3
33 Exhibit A6
34 Exhibit A4
35 Exhibit A7
36 Exhibit R6
37 Transcript PN 95
38 Ibid PN 1250
39 Ibid
40 Transcript PN 257
41 Exhibit R5 at DW4
42 Transcript PN 973
43 Ibid PN 245
44 [2010] FWAFB 10089 at [11]
45 (1995) 185 CLR 410 at p 465-6
46 Exhibit A5
47 Exhibit R7 at [3]
48 Ibid at [4(1)]
49 Exhibit R5 at [61(8)]
50 Transcript PN 990
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