[2012] FWA 6938

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Troy Powell
v
Hunter Water Corporation
(U2011/14838)

COMMISSIONER STANTON

NEWCASTLE, 14 AUGUST 2012

Termination of employment - alleged unfair dismissal.

[1] The applicant in this matter is Mr Troy Powell (“the applicant”). The respondent is Hunter Water Corporation (“the Corporation”). The applicant commenced employment with the Corporation on 9 June 2009. He was dismissed on 6 December 2011 following an investigation and finding that he had failed to follow a reasonable work direction from his supervisor concerning the use of a Corporation vehicle which was displaying defects. Shortly stated, the Corporation alleged the applicant’s actions breached its Code of Conduct and put himself, members of the public and the Corporation’s asset at risk. Accordingly, the Corporation alleged that as a result of the applicant’s actions and previous disciplinary issues, it had lost confidence in his ability to undertake his duties satisfactorily in accordance with established employment policies.

[2] The applicant’s dismissal followed two previous disciplinary warnings in March and August 2011 as well as a counselling session with Mr Mark Mills, then Manager, Electrical and Mechanical Services, on 24 November 2011 where the requirement to follow the Corporation’s policies, procedures and directions was raised.

[3] The disciplinary warnings relied upon by the Corporation were:

[4] The 24 November 2011 counselling session followed the applicant’s request as to whether the 9 August 2011 warning could be removed from his file. That request was subsequently declined and Mr Mills, informed the applicant he was required to follow directions given to him:

[5] The applicant claims his dismissal was based on unsubstantiated allegations set out in the letter of termination dated 6 December 2011, which he refutes. In that letter, the Corporation outlined the reasons for the applicant’s dismissal. The letter of termination stated in part:

Applicant’s Evidence

Troy Powell

[6] Mr Powell’s written evidence confirmed his dismissal was grounded on the “Investigation and Findings” following the 28 November 2011 vehicle incident and “Previous Disciplinary History” which caused the Corporation to assert he had lost its trust and confidence. 2

[7] In relation to the vehicle incident the applicant was adamant Mr Michael Cook, Acting Electrical Supervisor had not directed him to “pull the vehicle over, stop driving... or to down tools” nor did he raise any safety issues or tell him not to do any other job after completing the Cessnock Wastewater Treatment Works site Priority 1 job.

[8] The applicant contended the vehicle problem was intermittent and Mr Cook had suggested taking the vehicle to the Cessnock Ford dealership (“Cessnock Ford”). Mr Cook also informed him “a hire vehicle and contractors could be provided if needed”. 3 Mr Cook ultimately agreed he should complete the Cessnock job and then take the vehicle to Cessnock Ford.

[9] The applicant stated a fitter was required to assist with the Cessnock job. As the fitter was just leaving Morpeth Treatment Works, the applicant decided to attend his second allocated Priority job at the nearby Millfield 1 Waste Pump Station, returning to Cessnock at approximately 11.00am.

[10] At or around midday, the applicant received a fourth Priority call for the Kurri Kurri Treatment Works. At or around 2.15pm he received a further call from the Kurri Kurri Treatment Works concerning his estimated time of arrival. He subsequently considered the option of responding to the call or arranging for a contractor to complete the job. Following further consideration of taking the vehicle to Cessnock Ford, arranging a hire vehicle and transferring tools and personal items, the applicant decided to attend to the Kurri Kurri Treatment Works job “which was directly on my way home” and take the vehicle to the Kloster Ford dealership at Cardiff (“Kloster Ford”) the following day as Cardiff was close to his home. 4

[11] Mr Cook telephoned the applicant at 2.54pm to enquire “how I got on with the vehicle”. The applicant subsequently explained he had attended Priority calls during the day and proposed to take the vehicle to Cardiff the following day. Mr Cook subsequently replied, “Ok, make sure that you do”. 5 He also informed Mr Cook that he attended the Kurri Kurri Treatment Works job because it was on his way home.

[12] The applicant deposed that Mr Clint Thomson, Acting Field Maintenance Manager, called him at 3:21pm to enquire about the vehicle. His explanation was similar to that given to Mr Cook. He explained to Mr Thomson he would not have driven the vehicle if there had been a safety concern. Mr Thomson subsequently urged the applicant to ensure the vehicle was taken to Kloster Ford the following day. The applicant contended Mr Thomson did not direct or suggest he should stop driving the vehicle or down tools. 6

[13] On 29 November 2011, Mr Cook drove the applicant from Kloster Ford to pick up a hire vehicle. The applicant told Mr Cook there was no disrespect intended towards him for not taking the vehicle to Cessnock Ford the previous day. The applicant remarked he had had a busy day with Mr Cook replying, “It’s ok”. 7 The applicant asserted there were at least nine phone calls between Mr Cook and himself on 29 November 2011 without mention of the vehicle issue. Nor had he heard anything further from Mr Thomson. Similarly, nothing was raised concerning the matter during a training course on 30 November 2011.

[14] On 30 November 2011, Mr Thomson called the applicant to advise he was required to attend a meeting at 10.30am the following day, 1 December 2011. The meeting comprised the following persons:

    MR CLINT THOMSON

    ACTING FIELD MAINTENANCE MANAGER

    MR MARK MILLS

    ELECTRICAL AND MECHANICAL SERVICES MANAGER

    MRS JACKIE PRIEMS

    HUMAN RESOURCES

    MR DAVID APPLEBY

    SUPPORT PERSON

[15] The applicant subsequently agreed with a statement concerning the events of 28 November 2011 read to the meeting by Mr Thomson, particularly concerning his various telephone conversations with Mr Cook. However, he could not recall a question from Mr Cook concerning the environmental impact had he not attended the Priority 1 call at the Cessnock site. In any event he did not think the problem with the vehicle impacted on its safety, otherwise he would not have driven the vehicle.

[16] A further meeting was convened on 6 December 2011 where GPS and telephone logs were discussed but not shown to the applicant. During that meeting the applicant stated Mr Cook had approved his decision to take the vehicle home and then to Kloster Ford the following day. Similarly, Mr Thomson was aware that he proposed to drop the vehicle at Kloster Ford the following day. In addition, the applicant had remained on the 28 November 2011 night on-call roster.

[17] In the meeting on 6 December 2011 the applicant confirmed there were a number of calls between Mr Cook, Mr Thomson and himself during the afternoon of 28 November 2011. There was certainly no questioning about what he proposed to do with the vehicle at those times. The applicant contended he asked at the meeting whether the Corporation thought he had put himself in danger by driving the vehicle. Mrs Priems subsequently responded, “it doesn’t matter because you disobeyed your supervisor and you don’t understand that”. 8

[18] The applicant was dismissed during a further meeting convened by Mr Dean Taylor, General Manager System Operations. He alleged no opportunity was afforded to him to respond.

[19] In relation to the first warning mentioned in the termination letter, the applicant agreed he received a verbal warning subsequently confirmed in writing. He later undertook online Code of Conduct training. In relation to the second warning, the applicant agreed he received a written warning on 9 August 2011 and later undertook compulsory mediation with his Supervisor, Mr Brett Teasdale. However, he continued to dispute the validity of that warning. He alleged the investigation was not impartial because the investigator, Mr Michael Quinn, was a close and personal friend of Mr Teasdale. Notwithstanding his opposition to connecting three cables per phase to the generator at Kurri Kurri Treatment Works on 16 July 2011, the applicant did comply with Mr Teasdale’s directions “after being bullied to do so”. 9

[20] In further examination by Mr McKinnon, the applicant stated he first became aware of the minutes of the 6 December 2011 meeting when Mrs Priems emailed documents relevant to the Corporation’s case to him prior to Easter.

November 2011 - Vehicle Incident

[21] In cross-examination, the applicant accepted Mr Cook was his lawful superior at the time of the vehicle incident on 28 November 2011 and accordingly was obliged to follow his directions. 10 However, he acknowledged he did not follow Mr Cook’s instructions on 28 November 2011,11 despite warning indicators flashing on the dash.12 When further pressed the applicant agreed Mr Cook gave him specific instructions on how to get to Cessnock Ford on 28 November 2011. However, the applicant denied Mr Cook had told him to leave the vehicle at Cessnock Ford and a hire car would be arranged. He later agreed there was no doubt in his mind that Mr Cook clearly said, “Take the car to Cessnock Ford.”13 The applicant also agreed that he did not allocate further work that day to contractors14 as requested by Mr Cook and agreed to by himself.15

[22] The applicant agreed the Kurri Kurri Treatment Works job on 28 November 2011 was inconsistent with the instructions of Mr Cook. The applicant did not agree that Mr Cook’s instructions to take the vehicle to Cessnock Ford immediately after his completion of the Cessnock job 16 was, by implication, an instruction to organise contractors to complete other jobs that day.17

[23] The applicant agreed the Cessnock and Kurri Kurri Treatment Works jobs were beyond the scope of Mr Cook’s instructions which were to take the vehicle to Cessnock Ford. Nor did he contact Mr Cook to advise he proposed to undertake the Kurri Kurri job. 18

[24] The applicant denied Mr Cook told him to “pull over and cease work” when informed of the dash light warnings and the applicant’s reported difficulties with the vehicle. 19 The applicant denied Mr Thomson told him on 29 November 2011 that it was unacceptable to suggest he was too busy to do what his supervisor, Mr Cook, had instructed him to do. He agreed that Mr Thomson had told him that irrespective of whether the vehicle was unsafe or otherwise, Mr Cook had a duty of care and instructed him to take the vehicle straight to Cessnock Ford after he had finished the job.

August 2011 - Generator Incident - Kurri Kurri Waste Water Treatment Plant

[25] The applicant confirmed three cables had been supplied by the generator supplier and he subsequently decided to connect only two and left site. 20 He denied arguing with his Supervisor, Mr Teasdale concerning the number of cables to be fitted. He further denied he had raised the issue during a meeting with Mr Cook at the Old Punt Road Cafe in August 2011.21

[26] The applicant stated he was familiar with Mr Moate’s statement filed in these proceedings and he understood Mr Moate had an associate diploma in electrical engineering. He was also aware of Mr Moate’s opinion that if only two cables had been connected to the generator there would have been insufficient current-carrying capacity which would have created a safety issue. He denied he had “argued the toss” 22 with his supervisor and was resolute that it only required two cables and not three. He based that view on the fact that the last five generators provided by the Corporation’s supplier had only required two cables per phase and on one other occasion a higher capacity 1250kva generator also only required two cables per phase. The applicant subsequently agreed that on this occasion three cables accompanied the generator and he only installed two.

[27] Mr Warren referred the applicant to the Corporation’s written warning dated 9 August 2011 concerning the generator incident, particularly the following paragraph:

[28] The applicant was referred to paragraph 94(F) of his Statement where he deposed he met with Mr Mills on 24 November 2011, just four days prior to the vehicle incident on 28 November 2011. The applicant provided no details of any discussion that occurred at that meeting. Mr Warren subsequently referred the applicant to Paragraph 36 of Mr Mills’ statement concerning that meeting. Mr Mills deposed the meeting was organised at the applicant’s request and the purpose of the meeting was to establish whether the written warning issued on 9 August 2011 could be removed from his file. Mr Mills stated that the warning would stand and sought to give the applicant some comfort by suggesting there would be a number of current employees who might have been subject to disciplinary action in the past but had progressed and enjoyed a long and successful career with the Corporation. Mr Mills also deposed he told the applicant he was required to follow the Corporation’s processes, such as time sheets, risk assessments, overtime etc to ensure that no further breaches occurred which would lead to further disciplinary action. Mr Mills further reiterated that the applicant was required “to follow directions and follow all policies and procedures as Hunter Water doesn’t want to see any further action having to be taken”. He further stated that the applicant was disappointed with his response. Mr Mills’ hand-written diary notes concerning the meeting on 24 November 2011 were attached to his written statement.

[29] With respect to Mr Mills’ version of the meeting on 24 November 2011, the applicant agreed Mr Mills did say the written warning would stand on the file. 24

[30] The applicant confirmed that when he attended the meeting with Mr Mills and others on 1 December 2011, he asked Mrs Priems at the end of the meeting whether he was going to be sacked. He confirmed Mrs Priems’ response was that the interview panel was only gathering facts surrounding the event, however there was potential for disciplinary action. The applicant further agreed that he “knew my job was on the line”.  25 With respect to a further meeting on 6 December 2011, the applicant claimed that his GPS and phone records were not shown to him during the course of that meeting. In response to a line of questions from Mr Warren, the applicant confirmed that Mr Thomson informed him the relevant records had been checked and were on the table. However the applicant did not believe he was authorised to examine those records at the meeting. In cross-examination he agreed that he had subsequently examined the records and further agreed that they were accurate. With respect to his termination date on 6 December 2011, the applicant strongly denied the following allegations relied upon by the Corporation:

[31] With reference to the GPS records showing that he was at Weston rather than the Cessnock site when his supervisor directed him to pull over and down tools, the applicant contended he was never made aware of that allegation. He further disagreed that he was directed to take the vehicle to Cessnock Ford as soon as he had finished his then current job and he denied that he was instructed not to attend further jobs that day. However the applicant subsequently accepted that his supervisor had given him the direction that he was required to take the vehicle to Cessnock Ford. With respect to the allegation that he ignored his supervisor’s direction and continued to drive the vehicle throughout the day, the applicant contended he knew what his supervisor required of him but decided to ignore the direction. Further, with reference to the allegation that as a result of his failure to follow his supervisor’s direction he put himself, members of the public and the Corporation’s asset at risk, he agreed that he was informed of that allegation during the course of the meeting on 6 December 2011.

February 2011 - Email Incident

[32] The applicant agreed and acknowledged that the email sent to the EMS PLC group was not accidental as asserted in his written statement.

Re-examination by McKinnon

[33] With reference to the vehicle incident, the applicant stated he was under no direction to organise a hire care to replace his vehicle that day. He disagreed that Mr Cook had given him a direction to “pull over, stop and cease work”. In that regard he stated that if such a direction had been given he would have complied with it. He denied that Mr Cook had told him not to undertake any further jobs on the day of the vehicle incident and also denied that Mr Thomson had urged him to pull over and cease work during the conversation at or around 3.21pm that day. He also confirmed that it was his experience that an 800kva generator required two cables to be fitted per phase.

David Appleby

[34] Mr Appleby’s written evidence comprised answers to two questions as follows:

[35] In cross-examination Mr Appleby confirmed the two questions that formed the body of his written evidence were posed by the Union. Mr Appleby was the applicant’s support person during the Investigation Panel meetings on 1 and 6 December 2011.

[36] Mr Appleby subsequently agreed that during the meeting on 1 December 2011, Mr Thomson had read from an email sent to him by Mr Cook concerning the motor vehicle incident. In that regard Mr Appleby agreed Mr Thomson had explained the applicant had notified Mr Cook that the gears were not changing correctly and the dash warning lights were flashing intermittently. Mr Appleby also recalled that on 1 December 2011 the applicant had agreed with the statement of events read out by Mr Thomson, with the exception of an environmental issue question. 26

[37] With respect to the second question, Mr Appleby confirmed the applicant was told to take the vehicle to Cessnock Ford “as soon as he finished the job he was on”. 27

Respondent’s Evidence

Mark Mills

[38] Mr Mills was employed by the Corporation in the capacity of Manager, Electrical and Mechanical Services between 27 November 2006 and 23 March 2012.

[39] It was Mr Mills’ written evidence that the applicant was terminated on 6 December 2011 following an investigation into the failure to follow his supervisor’s direction regarding the use of his vehicle on 28 November 2011. Mr Mills deposed he received an email from Mr Cook during the afternoon of 28 November 2011 stating the applicant had informed him that morning of a transmission fault with his vehicle. Mr Cook had given the applicant a direction to take his vehicle to Cessnock Ford immediately after completing a “Priority One” job he had responded to at the Cessnock site. Mr Cook contacted the applicant by phone at 2.55pm that day to follow up on the status of the vehicle and was informed the applicant had failed to take the vehicle to Cessnock Ford as directed. Mr Cook subsequently escalated this particular issue to his manager, Mr Thomson and Mr Mills. It was Mr Mills’ evidence that the applicant’s conduct concerned a potential breach of the Corporation’s Code of Conduct and, accordingly, an Investigation Panel was established to gather the facts concerning the incident and recommend an appropriate course of action.

[40] The Investigation Panel subsequently convened to interview both Mr Cook and the applicant on 1 December 2011. With respect to the applicant’s interview, Mr Mills stated the applicant confirmed during the meeting that he agreed with Mr Cook’s version of the conversation on 28 November 2011, with the exception of Mr Cook’s question about whether there would be any environmental issues if the applicant did not respond to the “Priority One” job. The applicant also confirmed Mr Cook had made it clear to him that he expected the vehicle be taken directly to Cessnock Ford after the Cessnock job. When questioned during the meeting as to why he had ignored his supervisor’s direction, the applicant replied that he did not think the problem concerning his vehicle was “that bad”. At the suggestion of the applicant, the Investigation Panel subsequently checked the relevant GPS records concerning his vehicle movements and also his phone records of 28 November 2011. The applicant was required to attend a further meeting on 6 December 2011. His support person, Mr Appleby, was also in attendance. The purpose of the meeting was to provide the applicant with an opportunity to respond to some of the inconsistencies he had provided to the Investigation Panel during the meeting on 1 December 2011 and also to provide anything further to be considered during the course of the investigation.

[41] Mr Mills stated the applicant was informed the issues were serious and could result in the termination of his employment. In response to questions seeking a reason why the applicant did not follow his supervisor’s direction, the applicant stated that he planned his day every day and thought he was making the right decision. Mr Mills’ written evidence also set out a number of alleged discrepancies contained in the statement filed by the applicant dated 6 March 2011. A theme of that evidence was Mr Mills’ concern that the applicant had expressed reluctance on a number of occasions to accept authority.

[42] In cross-examination Mr Mills confirmed that he worked from home on 28 November 2011 examining confidential tender documents. At about 9.30pm he logged onto his email and received a message from Mr Cook concerning the events surrounding the vehicle incident that day. The email had been directed to Mr Thomson. Mr Mills returned to work on 1 December 2011 and arrangements were put in place for Mr Cook, Mr Thomson and himself to meet that morning and later with the applicant. With respect to the Investigation Panel meeting that took place on 1 December 2011, Mr Mills was unaware whether a copy of the minutes from that meeting was given to the applicant. He also agreed the minutes had not been signed by the applicant nor his representative.

[43] Mr Mills explained the Investigation Panel meeting minutes were an amalgam of notes taken by Mrs Priems, Mr Thomson and himself at the time of the interview. However, he stood by the accuracy recorded in the minute document. With reference to the Corporation’s allegations concerning the applicant’s breach of the Corporation’s Code of Conduct, Mr Mills stated the applicant had been given a reasonable workplace direction when told to fit three cables per phase to the generator in August 2011. 28 He added that in the event issues arose that could compromise safety, staff and contractors were told during toolbox meetings and the like to cease work and make appropriate notifications to management.29

[44] With reference to the applicant’s email to Mr Quinn dated 15 March 2011, where he sought an amendment to the written warning given to him as he disagreed with some of the grounds on which it was made, Mr Mills maintained his opinion that this was evidence of the applicant’s continued reluctance to “accept authority”. 30

[45] In relation to the generator incident, 31 Mr Mills confirmed Mr Teasdale returned to site and explained to Mr Appleby and the applicant the method and reasoning behind the requirement that three cables be connected. In that regard, he stated Mr Appleby accepted that decision and continued assisting Mr Teasdale. However, the applicant continued to argue the point stating the method he adopted was the preferred method of installation. Mr Mills also confirmed that during the Investigation Panel’s deliberation he was unaware of any close personal relationship between Mr Quinn and Mr Teasdale.

Michael Cook

[46] Mr Cook stated he was an electrician with the Corporation and from 11 October to 12 December 2011 he acted as a relief Electrical Supervisor. He was also the Operations OH&S Committee Chairman from January 2009 to January 2012. In his written evidence he explained the purpose of that committee was to handle any safety issues raised by employees and have such issues dealt with or rectified.

[47] As part of his written evidence, Mr Cook also commented extensively on the evidence before the Tribunal from the applicant, particularly with respect to the generator incident on 16 July 2011 and the incident that gave rise to the applicant’s dismissal; the vehicle incident on 28 November 2011.

[48] Mr Cook deposed that at approximately at 8.54am on 28 November 2011 he received a voice mail message from the applicant asking him to return his call. When Mr Cook returned the applicant’s call at approximately 9.20am, he was informed the applicant’s vehicle had developed an automatic transmission problem the night before when he was returning home from a call-out. The applicant informed him the vehicle was not changing gears properly and was clunking heavily into gear with warning indicators on the dash flashing. He told him the vehicle was awkward to drive. The applicant further informed Mr Cook that he had attempted to have the vehicle booked in to the Kloster Ford Raymond Terrace dealership, however they could not accept the vehicle until Wednesday, 30 November 2011.

[49] It was Mr Cook’s evidence that he instructed the applicant to pull the car to the side of the road and “down tools” immediately. He contended the applicant argued with him and stated the problem with the vehicle wasn’t that bad as it was only occurring intermittently. Moreover, the applicant informed Mr Cook that he was responding to a Priority 1 job at the Cessnock site and was “practically there”. Mr Cook stated the following exchange took place:

[50] After being informed the applicant was already on site, Mr Cook agreed that he should respond to the job, but as soon as it was completed he was required to take the vehicle to a dealer for assessment and repair. He also informed him that a new Ford dealership had recently opened in Cessnock and was close to the Corporation’s Cessnock site. He gave the applicant directions on how to get to the new Ford dealership. A map showing the proximity of the Cessnock site to Cessnock Ford was attached to Mr Cook’s statement.

[51] Mr Cook deposed the applicant had not seemed pleased with the direction to take the vehicle to Cessnock Ford and in that regard enquired “What if they can’t get me in?” In response, Mr Cook informed the applicant that he should just leave the vehicle there and a hire car would be organised by Helen Hartley, the Administrative Officer for the Electrical and Mechanical Services Group. He also informed the applicant that any other work was to be assigned to contractors. Mr Cook contended he made it clear that he did not wish the applicant to drive the vehicle and in that regard he further contended the applicant had given him a verbal commitment that he would take the vehicle directly to Cessnock Ford after completing the Priority 1 job at the Cessnock site.

[52] Mr Cook telephoned the applicant at 2.55pm to check how he had got on with the vehicle. The applicant then informed him that he had not taken the vehicle to Cessnock Ford as directed as he was too busy responding to Priority work. Mr Cook then asked the applicant where he was and the applicant stated he was on his way home. Mr Cook deposed that when he was informed the vehicle had not been taken to Cessnock Ford as directed, but instead the applicant had continued to respond to jobs, he was both confused and annoyed. He could not understand why his direction had been ignored as he had made it clear to the applicant what he was expected to do. During the course of that conversation the applicant informed Mr Cook that the car had been booked into Kloster Ford for the following morning, which was Tuesday, 29 November 2011. Mr Cook said he responded to the applicant with an abrupt “Ok” and the conversation ended. He deposed he was annoyed that the applicant had disregarded his direction. He notified his manager, Mr Thomson, concerning the incident and later confirmed his concern by email forwarded at 4.52pm that day. On 1 December 2011, he met with Mr Thomson, Mr Mills and Mrs Priems to answer further questions concerning the incident on 28 November 2011 and the conversations he had that day with the applicant.

[53] In relation to the July 2011 generator incident, Mr Cook set out a rebuttal to the applicant’s version of events. Mr Cook deposed that on the morning of 16 July 2011 he was working with his supervisor Mr Teasdale at the Kurri Kurri 1 Waste Water Pump Station. He was aware at the time that the generator connection nearby was being undertaken by the applicant and Mr Appleby at the Kurri Kurri Treatment Works. After completing their task he and Mr Teasdale arrived at the site to see whether Mr Appleby and the applicant required any assistance. Both had completed their job and had left the site by that time. Mr Cook deposed there was an issue concerning how the generator should be connected and in that regard he overheard Mr Teasdale telephone both Mr Appleby and the applicant to inform them about the issue and instruct them that three cables were required to safely connect the generator.

[54] Mr Appleby later returned to the site to assist with the connection of the third cable. Mr Cook deposed that later in the afternoon Mr Teasdale returned to the Kurri Kurri Treatment Works to assist the applicant and Mr Appleby. When Mr Cook returned to the site, he witnessed Mr Teasdale leaving. Mr Teasdale said words to the effect “I gotta go. I gotta get out of here”. It was Mr Cook’s evidence that Mr Teasdale was physically and emotionally affected and subsequently informed him that there had been an incident between the applicant and himself. Mr Cook further deposed that he was concerned about Mr Teasdale and worried about his safety. Accordingly, he telephoned Mr Teasdale to make sure he was “Ok”.

[55] Mr Cook stated he was concerned about the incident between the applicant and Mr Teasdale and it was against that backdrop that he walked into the switch room where Mr Appleby and another electrician, Mr Steve Sanders, “were both rattled”. Mr Appleby informed him that “they had a big blue. Troy’s gone”. In view of the reaction of both Mr Sanders and Mr Appleby, Mr Cook considered the incident had only just occurred and in his opinion it must have been fairly serious. Mr Cook deposed that following the incident he worked with the applicant at the Kurri Kurri Treatment Works where he witnessed him making a number of phone calls to technicians and employees of Aggreko, the supplier of the generator, to support his theory that only two cables were required to safely connect the generator. He contended the applicant was not impressed with the answers he was getting from Aggreko personnel and “wouldn’t let it go”.

[56] Mr Cook stated the applicant had never mentioned to him that he had a safety issue with the connection of the generator and appeared convinced that only two cables were required and was attempting to prove he was correct. In the opinion of Mr Cook, three cables were required to safely connect the generator as supplied by Aggreko. He dismissed the applicant’s contention that to connect three cables was in some way illegal. Mr Cook believed two cables would create an unnecessary risk to the generator should a fault occur and could have caused severe damage to property or persons. Mr Cook acknowledged there was a design flaw with the actual connection point at the Kurri Kurri Treatment Works which had since been rectified. However, in his opinion, this issue was unrelated to the argument the applicant had with Mr Teasdale on 16 July 2011 concerning the number of cables required. In Mr Cook’s view that argument was never about safety but it was more an “I’m right, you’re wrong” situation.

[57] In relation to the applicant’s claims that he was well respected and enjoyed a good working relationship with all his direct colleagues and his supervisor, it was Mr Cook’s view that the applicant did not have a good working relationship with his work colleagues and did not believe he was committed to improving his relationship with his supervisor, Mr Teasdale. In that regard he described the applicant’s relationships in the workplace as strained “due to his behaviour and actions in antagonising people and constantly challenging the authority of management”.

[58] In cross-examination Mr Cook agreed that on the day of the vehicle incident the applicant had told him that the vehicle “issues didn’t seem to be as bad” when compared to the previous day. Mr Cook confirmed that he had instructed the applicant to pull the vehicle to the side of the road and down tools immediately. He agreed that at that point in time he had not directed the applicant not to undertake any further work. He also confirmed that he told the applicant that there was no way of him knowing what was wrong with the vehicle and, to be safe, the vehicle needed to be checked in order to rectify any safety issues.

[59] Mr Cook confirmed that during the course of his discussions and conversations with the applicant, it was his recollection that he told him that he would organise a tow truck to take his vehicle for repair. However, he had not organised or arranged a tow truck as suggested. Mr Cook was certain that when he phoned the applicant at 2.55pm on the day of the incident the applicant replied to him that he was on his way home. In that regard, he did not recall the applicant advising him that he was at the Kurri Kurri Treatment Works. He was also unaware that the applicant had received a Priority 1 job at the Kurri Kurri Treatment Works on the afternoon of the incident. Mr Cook stated that when the applicant told him that he booked the car into Kloster Ford on the morning following the incident, he did not direct the applicant at that time to stop driving the vehicle and arrange a tow truck. He agreed that the applicant could have concluded that the vehicle issue had been resolved when he informed Mr Cook that he was taking it to Kloster Ford.

[60] Mr Cook agreed that on the day of the incident he had not taken the applicant off the callout roster. Accordingly, it was possible that the applicant could have been called out that night. In any event, if the applicant had followed his direction after the morning phone call and taken the car to Cessnock Ford, the Corporation would have organised a hire vehicle and there would be no reason to take him off the callout roster. In that regard it was Mr Cook’s evidence that he would have expected any electrician without a vehicle would turn down a roster call and further, he would have expected that if the vehicle was unreliable a roster callout would also be turned down on the grounds that the Corporation would have arranged contractors to cover such situations.

[61] With respect to the generator incident in July 2011, Mr Cook rejected the notion that his recollection of events could be regarded as an opinion. It was Mr Cook’s evidence that his statement set out the gist of his conversation with Mr Teasdale who, at the time, was leaving the site. He confirmed Mr Teasdale was agitated and emotionally affected. In relation to his observations concerning the applicant’s telephone conversations involving Aggreko personnel, he confirmed the conversation involved the generator connection procedure and the number of cables used to connect the generator to the switchboard. He further disagreed that the applicant was instructed, as suggested in his written evidence, to connect a high-powered generator in an unsafe manner. Mr Cook was aware that previous generators supplied by Aggreko had only required to be connected with two cables per phase.

Russell Moate

[62] Mr Moate is employed by the Corporation as an electrical engineer with the Electrical and Mechanical Services Group. It was Mr Moate’s evidence that a 1000kva transformer fed the Kurri Kurri Treatment Works. Against that backdrop, the 800kva generator supplied by Aggreko was well below that level. Moreover, the two cables the applicant referred to in his evidence between the connection links and the buzz bar were a very short length and these cables were “sized” for the full rating of the buzz bar. He rejected the applicant’s contention that the connection point was not designed for the 800kva generator supplied on 16 July 2011.

[63] Mr Moate further deposed in his written evidence that three cables were required to safely connect the generator and in the event only two had been connected, there would be insufficient current-carrying capacity which would have created a safety issue. With reference to the applicant’s contention that if a fault had occurred with the generator when three cables were connected, the circuit would have failed between the connection links and the buzz bar causing an explosion with possible injury and probable loss to the Kurri Kurri site, Mr Moate maintained that this view was incorrect. He stated there was no conceivable way this could happen because the cables inside the switchboard were rated to carry the current that the main circuit breaker can withstand which is 1250amperes.

[64] It was Mr Moate’s evidence that in his opinion there was no safety issue related to the connection of the 800kva generator to the Kurri Kurri Treatment Works. A safety issue would arise only in circumstances where the three cables required by Aggreko were not connected.

[65] In cross-examination Mr Moate confirmed that the 1000kva transformer that feeds Kurri Kurri Treatment Works does not connect through the generator connection point and therefore does not utilise the two cables the applicant referred to between the connection links and the buzz bar. With reference in his evidence to the 1250amperes main circuit breaker, Mr Moate stated that at the time he was referring to the temporary installation prior to the more recent retro-fitting of the system. He also stated that the two cables running between the connection points and the buzz bar were special high-temperature cables capable and designed to carry more current than those cables supplied with the generator. He later confirmed that the connection point became fully compliant approximately four or five weeks after the generator incident occurred in July 2011.

Clint Thomson

[66] Mr Thomson is the Manager Field Maintenance within the Electrical and Mechanical Services Group. He reports directly to the manager of Electrical and Mechanical Services who at the time was Mr Mills.

[67] Mr Thomson deposed that at approximately 3.00pm on 28 November 2011 he was informed by Mr Cook that the applicant had failed to take his vehicle to Cessnock Ford as directed. He called the applicant at approximately 3.30pm and asked him why he had failed to take the vehicle to Cessnock Ford as directed. The applicant responded that he had been too busy with Priority work. Mr Thomson recalled informing the applicant that he had potentially endangered the safety of both himself and the vehicle. The applicant subsequently stated that he was about to book the vehicle in at Kloster Ford near his home and proposed to take it there first thing the following day. Mr Thomson stated that the fact it was late in the day and Kloster Ford was close to the applicant’s home he agreed the vehicle should be taken to Kloster Ford. However, he emphasised that when talking to the applicant at approximately 3.30pm that day he became aware the applicant had already arrived home and had ceased use of the vehicle, which was subsequently confirmed by the Corporation’s GPS records for the vehicle. It was Mr Thomson’s evidence that he did not condone the applicant’s actions in failing to follow his supervisor’s directions that morning to take the vehicle to Cessnock Ford. He had made that clear to the applicant during the course of their conversation that afternoon.

[68] At approximately 5.00pm on 28 November 2011 Mr Thomson received an email from Mr Cook which was also copied to Mr Mills. That email detailed Mr Cook’s concerns regarding the applicant and shortly thereafter he spoke to Mr Mills who conveyed advice from the Human Resources Department that a decision had been made to further investigate the facts concerning the vehicle incident issue. He further advised that an Investigation Panel had been established and Mr Cook and the applicant had been contacted for interviews. During the course of the interview process, Mr Thomson deposed the applicant had requested his GPS records be reviewed by the Panel on a number of occasions. The Interview Panel subsequently obtained copies of the relevant GPS and phone records of the applicant independently and those records were placed on the table facing the applicant and his representative at the meeting on 6 December 2011. It was his recollection that neither the applicant nor his representative, Mr Appleby, looked at either of these documents closely.

[69] Mr Thomson recalled he became frustrated in response to a number of questions raised by the applicant during the meeting on 6 December 2011 and in that regard responded to a number of questions with words to the following effect:

[70] It was Mr Thomson’s evidence that the applicant did not answer that question. In Mr Thomson’s view, the applicant’s claim that he had a good working relationship with his colleagues and was well respected is not consistent with the feedback provided by a number of staff in the field maintenance team who claimed they had difficulty establishing a sound working relationship with the applicant.

[71] It was Mr Thomson’s contention that the applicant did not give acceptable reasons to support his decision on the day of the vehicle incident not to take the vehicle to Cessnock Ford as directed.

[72] In cross-examination Mr Thomson considered the drive from the applicant’s home to Kloster Ford was relatively short when compared to the magnitude of the risk of driving the vehicle all day. In that regard he saw no need to arrange a tow truck to collect the vehicle from the applicant’s home on the night of the incident.

Glenn Coates

[73] Mr Coates is employed by the Corporation as an Electrician within the Electrical and Mechanical Services Group. In his written evidence he made reference to Paragraph 90 of the applicant’s statement where the applicant questioned why the Investigation Panel had interviewed Mr Coates as he was not present during the course of the generator incident. Mr Coates deposed that he had a number of conversations with Mr Appleby following the incident on 16 July 2011 at the Kurri Kurri site. In subsequent discussions and conversations with Mr Teasdale, he understood that Mr Appleby had provided the Investigation Panel with conflicting information regarding the incident when compared to what he had been told by Mr Appleby the day after the incident. Accordingly he told Mr Teasdale he would be prepared to make a statement regarding his discussions with Mr Appleby.

[74] A further point made by Mr Coates in his evidence was that he disagreed with the applicant’s contention that he had a good working relationship with his direct colleagues. Whilst he personally treated the applicant with courtesy and respect, he felt he didn’t get the same respect in return from the applicant. However he could not fault his ability as a tradesman although his attitude and behaviour were difficult to deal with at times. He also recalled that shortly after the applicant joined the Corporation he made a derogatory comment about a fellow employee, a long serving fitter with the Corporation, which led to deterioration in his working relationships with the fitters in general.

[75] In cross-examination Mr Coates confirmed his written evidence was based on specific parts of the applicant’s statement which were shown to him by the Corporation. He further confirmed he had not read the balance of the applicant’s statement. Mr Coates reiterated the comments set out in his statement were based on a conversation he had with Mr Appleby on the day of the incident. He subsequently agreed with Mr Teasdale’s request for him to make a statement. Mr Coates also stated he had not discussed or checked with Mr Appleby what he may have said at the time. With respect to his observation concerning the applicant’s working relationship with the fitters, he agreed that he had not spoken to each fitter individually. In that regard he stated he had spoken to approximately half of the fitters and was aware a number experienced difficulty getting along with the applicant at work. Mr Coates agreed with the contention that he had included a paragraph in his statement concerning the applicant’s working relationship with the fitters in general to discredit him.

Michael Taylor

[76] At the time of the applicant’s dismissal, Mr Taylor was the General Manager of Systems Operations. His current position is Executive Manager Customer Service. In his written evidence Mr Taylor deposed Mr Mills contacted him on 28 November 2011 to advise him an Investigation Panel was being formed to investigate an allegation concerning the applicant’s failure to follow his supervisor’s direction with respect to the use of his motor vehicle.

[77] Mr Taylor further deposed that on 6 December 2011 he received a verbal report from the Investigation Panel outlining its findings and the applicant’s response. Mr Taylor’s written evidence included the following summary of the Panel’s findings:

[78] Mr Taylor stated that the Investigation Panel provided advice concerning the applicant’s previous disciplinary history. In consultation with the Human Resources Manager and General Manager People and Change, he came to the conclusion that the Corporation could not be confident that the applicant would follow the lawful directions of his supervisor or adhere to the Corporation’s policies, despite previous efforts taken to improve his behaviour. He subsequently made the decision to terminate the applicant’s employment. Mr Taylor deposed that he met with the applicant and his support person, Mr Appleby, and Mr Thomson at approximately 12.30pm on 6 December 2011 to inform the applicant that the Corporation had decided to terminate his employment. During the course of that meeting Mr Taylor stated the following:

[79] It was Mr Taylor’s evidence that the letter of termination was forwarded to the applicant on the afternoon of 6 December 2011.

[80] Mr Taylor stated that he became aware of the vehicle incident involving the applicant on 28 November 2011. Whilst his evidence was that he did not have direct responsibility for the supervision of the applicant, his management team kept him informed of incidents. Mr Taylor also stated that Mr Mills was a senior manager and as such was responsible for establishing the Investigation Panel without recourse to himself. Further, he was aware that the applicant took his vehicle to Kloster Ford the day after the incident and in that regard he also understood that both Mr Cook and Mr Thomson had agreed at the time that the applicant could take his vehicle to Kloster Ford.

[81] In cross-examination Mr Taylor confirmed that the Investigation Panel took the view that “Mr Powell was instructed by Mr Cook not to attend anymore jobs”. In that regard he acknowledged that he had received the minutes of the Panel meetings.

[82] Mr Taylor acknowledged that he had relied upon the findings of the Investigation Panel in deciding to dismiss the applicant on 6 December 2011. He noted the minutes were not signed by the applicant or his representative and later admitted he did not address the findings of the Investigation Panel with the applicant prior to making his decision to dismiss him. Mr Taylor further confirmed that the applicant did not have an opportunity to respond to the findings of the Investigation Panel at the time he decided to dismiss him.

[83] With respect to his evidence concerning the applicant’s previous disciplinary history and his reference to efforts made to improve his behaviour, Mr Taylor stated he understood the applicant was counselled after the first warning concerning breach of the Email Use Policy. He was aware that the applicant had made application for mediation meetings but was not specifically aware of his request for some additional mediation meetings. Notwithstanding the applicant’s efforts to improve his behaviour, Mr Taylor maintained the Corporation could not be confident that he would follow the lawful direction of supervisors or adhere to the Corporation’s policies. He based that contention on the applicant’s previous history concerning some other issues that arose in the workplace and the issues surrounding the vehicle incident in November 2011.

Submissions

Applicant

[84] Mr McKinnon held there was no valid reason for the applicant’s dismissal 32 and the fact that he “did not just lay down and accept the previous warnings given to him” had caused him to be “branded as not accepting directions of management”.33

[85] In relation to the 9 August 2011 generator incident, the adverse finding against the applicant made on the balance of probabilities was flawed. The evidence of Mr Coates was that he participated in the investigation at the request of Mr Quinn, following a discussion with Mr Teasdale, who was also a workplace friend of Mr Quinn. 34 Mr McKinnon contended the investigation was influenced by bias:

[86] The Corporation’s claims that the applicant did not follow the directions given by his supervisors following the vehicle incident on 28 November 2011 had been countered by the applicant’s evidence that he was not directed “to pull over, down tools, and not attend further jobs” and the fact that his supervisor had agreed that he should take the vehicle to a different mechanic closer to home the following day. 36

[87] Further, Mr Thomson’s evidence was that he was unsure whether he conferred with the applicant by telephone at 3.20pm or 3.30pm on 28 November 2011 when it was agreed the applicant could take the vehicle to Kloster Ford rather than to Cessnock Ford. 37

[88] Mr McKinnon submitted that despite the Corporation’s alleged safety concerns, Mr Thomson did not arrange a tow truck to collect the applicant’s vehicle. He also referred to Mr Mills’ evidence that the Investigation Panel minutes were a summary of the notes prepared by each of the three panel members and those minutes were not provided to the applicant or his representative prior to being given to Mr Taylor, who relied upon them to terminate the applicant. 38 Shortly stated, there was no valid reason to terminate the applicant for reasons associated with either the generator or vehicle incidents.

[89] Mr McKinnon also argued the Corporation could not rely on the vehicle incident to determine it had lost all confidence in the applicant. The Corporation’s claim that it had lost the trust and confidence of the applicant must be soundly based as per Perkins v Grace Worldwide (Australia) Pty Limited. 39

[90] The dismissal was procedurally unfair and in that regard Mr McKinnon referred to the evidence of Mr Taylor and strongly contended the findings of the vehicle incident investigation were not given to the applicant to enable a response but rather read to him at the time of termination. 40 Mr McKinnon also pressed the applicant’s written submissions filed on 7 March 2012 and the authorities contained therein.

[91] Mr McKinnon submitted the applicant was not given an opportunity to respond to the reasons for his dismissal - the findings of the investigation panel - at the first meeting conducted on 6 December 2011. They were put to him as part of “the summary and termination meeting” held during the afternoon of the same day and in the termination letter. 41

[92] In the event the Tribunal is not persuaded to reinstate the applicant, monetary compensation should be ordered.

Corporation

[93] Mr Warren submitted the applicant was dismissed on 6 December 2011 following his failure to heed three warnings given to him over eight months, commencing with a verbal warning on 3 March 2011 following the sending of a particularly inappropriate and potentially offensive email in breach of the Corporation’s Code of Conduct and Bullying and Harassment Prevention Policies. There was a valid reason for termination: Selvachandran v Peteron Plastics Pty Ltd. 42

[94] Mr Warren submitted the Corporation’s electricians frequently work alone and unsupervised. The applicant’s conduct had caused the Corporation to lose the trust and confidence of the applicant.

[95] The applicant was given a written second warning on 9 August 2011 which centred on his “questioning the decisions and authority of his supervisor” and an associated bullying and harassment complaint in breach of the Corporation’s policies and Code of Conduct. 43

[96] The applicant was warned on the first verbal and second written warning that any future breach of the Corporation’s Code of Conduct or inappropriate behaviour could lead to disciplinary action including dismissal.

[97] The third warning, set out at Annexure 13 of Mr Mills’ Statement, occurred on 24 November 2011 when the applicant was warned by Mr Mills that he should follow the Corporation’s policies, procedures and directions given to him. The terms of the warnings were recorded in Mr Mills’ diary. In cross-examination the applicant agreed he had been warned by Mr Mills in terms substantially similar to Mr Mills’ diary entry and acknowledged that any future breach could lead to further disciplinary action. 44

[98] Despite warnings that he should follow the Corporation’s directions, the applicant either deliberately or negligently ignored a direct instruction of his supervisor on 28 November 2011 to immediately take the vehicle to Cessnock Ford. The applicant agreed Mr Cook instructed him to proceed directly to Cessnock Ford yet he accepted another urgent job which required him to continue using the vehicle in breach of an express instruction. 45 In that regard, the applicant’s contention that he was not directed to undertake other work should be disregarded. In any event he failed to consult Mr Cook concerning his decision to attend the additional job.

[99] Mr Warren submitted despite a number of conversations with Mr Cook following the instruction to proceed to Cessnock Ford, the applicant did not inform Mr Cook that he had undertaken additional work using the vehicle until that afternoon. In that particular regard, Mr Cook did not ask him the whereabouts of the vehicle because he understood the applicant had left it at Cessnock Ford for repairs. 46 Mr Warren further contended that when Mr Cook spoke to the applicant in or around 3.00pm on 28 November 2011, he remarked that he was at Kurri Kurri when in fact he was at or reasonably close to his home.

[100] Mr Moate’s evidence was the 800kva generator supplied by Aggreko to feed into the Kurri Kurri Treatment Works did not exceed the capacity of the facility’s 1000kva transformer. Accordingly, the transformer was capable of receiving the generator’s power. 47

[101] With respect to the Corporation’s investigation process, Mr Warren submitted Mr Thomson put the Investigation Panel’s findings as recorded in the “minutes” to the applicant during the meeting on 6 December 2011.  48 Moreover, the concessions made by the applicant in cross-examination are broadly consistent with the Investigation Panel’s findings read out by Mr Thomson during the meeting on 6 December 2012.

Consideration and Finding

[102] Section 385 of the Fair Work Act 2009 relevantly provides that a person has been unfairly dismissed if the Tribunal is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.

[103] Section 387 sets out the criteria to be considered by the Tribunal in determining whether a particular dismissal is harsh unjust or unreasonable and provides the following criteria must be taken into account:

Section 387(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):

[104] Having considered the evidence in its totality I am satisfied that the conduct relied upon by the Corporation to dismiss the applicant did occur. I also find that there was a valid reason for the termination of the applicant’s employment.

[105] The applicant’s dismissal was for reasons explained in a letter of termination dated 6 December 2011. The reasons expressed included:

[106] I do not believe the respondent’s decision to dismiss the applicant on 6 December 2011 was a disproportionate response taking into account his service and work history.

[107] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. 49 In that regard, the reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts of the case.50 It therefore follows that the validity of the termination is to be judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.51 In determining whether a reason is valid:

Section 387(b) whether the person was notified of that reason:

[108] On the evidence in these proceedings, the applicant was adequately notified of the reasons for his dismissal prior to the Corporation’s decision to terminate his employment was made.

[109] Moreover, it is also clear the applicant was both aware of and informed of the reasons for his dismissal when the Investigation Panel’s findings were revealed during the first meeting on 6 December 2011 and prior to the Corporation’s decision to terminate his employment was made.

Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person:

[110] The applicant was given adequate opportunity to respond.

Section 387(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:

[111] I am satisfied the applicant was afforded an opportunity to have a support person present and the requirements of the sub section were met.

Section 387(e) if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal:

[112] The applicant had been warned on no less than three occasions between 3 March and 24 November 2011 prior to the motor vehicle incident that any further breach of the Corporation’s policies would be met with further disciplinary action up to and including dismissal.

Section 387(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 387(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:

[113] The size of the Corporation and its dedicated Human Resources staff are not relevant considerations in this case. Further, the applicant was not denied any procedural fairness.

Section 387(h) any other matters that FWA considers relevant:

[114] I have also had regard to the period of employment of the applicant and his personal circumstances and all of the other circumstances raised by Mr McKinnon during proceedings.

[115] The Corporation is entitled to expect compliance with lawful work directions given to employees and its express workplace policies and procedures. It also follows that not all breaches of such policies will result in dismissal. However, in the circumstances of this case and having regard to the need to accord a “fair go all round” to both the applicant and the Corporation, I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

Mr A McKinnon, Industrial Officer of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch.

Mr R Warren, of Counsel

Hearing details:

2012
Newcastle:
May 14 and 15
June 5
July 4

 1   Exhibit R1 para 36

 2   Applicant’s Statement para 8

 3   Applicant’s Statement para 9

 4   Applicant’s Statement paras 13 & 14

 5   Applicant’s Statement para 15

 6   Applicant’s Statement para 19

 7   Applicant’s Statement para 21

 8   Applicant’s Statement para 42

 9   Applicant’s Statement para 99

 10   Transcript PN 377-378

 11   PN 389

 12   PN 306

 13   PN 471

 14   PN 438

 15   PN 440-442

 16   PN 418

 17   PN 460-463

 18   PN 471-476

 19   PN 487

 20   PN 514-516

 21   PN 525

 22   PN 532

 23   PN 568

 24   PN 581-586

 25   PN 592

 26   PN 106

 27   PN 116

 28   PN 897

 29   PN 898

 30   PN 906

 31   PN 955

 32   PN 1921

 33   PN 1922

 34   PN 1925

 35   PN 1929

 36   PN 1920

 37   PN 1923

 38   PN 1927

 39   (1997) 72 IR 186 at [191]

 40   PN 1937

 41   Applicant's written submissions at para 22

 42   (1995) 62 IR 371 at 373

 43   PN 1941

 44   PN 1943

 45   PN 1949

 46   PN 1950

 47   PN 1956

 48   PN 1988

 49   (1995) 62 IR 371 at 373

 50   Rode v Burwood Mitsubishi Print R4471 at [90]

 51   Miller v University of NSW [2003] FCAFC 180 at [13]

 52   Walton v Mermaid (1996) 142 ALR 681 at 685

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