DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Jackson
v
Elbarki Nominees Pty Limited T/A Heba Elbarki Dentist
(U2016/7354)

Application for relief from unfair dismissal.

Introduction

[1] On 31 May 2016, Ms Wendy Jackson (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by Elbarki Nominees Pty Limited T/A Heba Elbarki Dentist (Elbarki) (Respondent).

[2] On 14 June 2016, Elbarki filed a response to Ms Jackson’s application.

[3] On 28 June 2016, the application was listed for conciliation before a Commission Conciliator, but remained unresolved at the end of the conciliation.

[4] Consequently the matter was listed for hearing.

[5] On 25 July 2016, the Commission received an application for an order requiring production of documents from the Applicant. The attached schedule detailed financial records of the Respondent, correspondence of the Respondent and de-identified patient records.

[6] On 1 August 2016, the Applicant’s order to produce request was refused by Deputy President Clancy. The Deputy President declined to issue the order at that time, however advised the Applicant could make a further application at a later date. The Applicant did not make a further application.

[7] Ms Jackson’s application was heard on 7 September 2016. Closing submissions were filed by the parties and oral submissions were heard on 3 November 2016. Ms Jackson gave evidence on her own behalf. The following witnesses gave evidence for the Respondent;

• Ms Heba Elbarki, Owner and Business Manager;



• Ms Debbie Wright, Receptionist/Dental Assistant;



• Ms Sharyn Hussey, Receptionist/Clerk.

[8] The Applicant had filed a witness statement and supplementary statement of Ms Claire Vincent. Ms Vincent was unable to attend the hearing due to medical reasons. 1 The Respondent objected to the admission of Ms Vincent’s witness statement and supplementary statement as Ms Vincent was not available for cross-examination.2 The Respondent also objected to its admission on the grounds of relevance.3 I advised the parties that they could make a submission as to the weight I gave this material.4 I found the Applicant’s explanation as to the relevance of the material to her case misconceived, and as such have not relied on it to form my conclusion.

Background

[9] The Applicant submits that in or around November 2013, she commenced employment with the Respondent as a dental nurse and receptionist. 5 The Respondent submits her employment commenced on or about 22 August 2013.6

21 April 2016

[10] On 21 April 2016, the Applicant submits that Dr Elbarki told her that she was not happy that instrument tracking had not occurred for a patient on 19 April 2016 and that there would be a meeting to discuss this further. 7 The Applicant submits that she had gone home sick on 19 April 2016 and that a temporary dental nurse had been hired to replace her.8

[11] The Applicant submits that later on the 21 April 2016 she witnessed Dr Elbarki wind back the date and numbers of the tracking gun and proceed to print out tracking labels and stick them on an empty autoclave bag. 9 Further, the Applicant submits that Dr Elbarki told her to put the bag through the autoclave, and once the bag was sterilised to take the labels off the empty bag and stick them next to the name of the patient of 19 April 2016 in the patient tracking record book.10

[12] The Applicant submits that Dr Elbarki knew that by putting the label through the autoclave it would change from orange to black to demonstrate the instruments inside the bag have been sterilised. The Applicant explained that the tracking label is then stuck to the patient’s records so that in case there is an infection they are able to identify the exact instrument that was used in the surgery. 11

[13] The Applicant submits that she followed Dr Elbarki’s instructions, despite knowing that it was falsifying patient records, because she was ordered to and wanted to keep her job. 12

[14] The Respondent denies instructing the Applicant to falsify dental tracking records. 13 The Respondent submits that Dr Elbarki acted alone in doing so and that later that same day she removed the falsified tracking records and has since reported the transgression to the relevant association.14 Dr Elbarki’s evidence was that though the Applicant was in the room with her, she did not instruct the Applicant to be involved in this process at all.15

Meeting of 5 May 2016

[15] On 5 May 2016, the Applicant submits that she attended a meeting with Dr Elbarki where she received a warning regarding the tracking of instruments. 16 The Applicant submits she told Dr Elbarki that she followed the correct procedure.17 The Applicant submits that Dr Elbarki disputed this and told her that she had not and that she had raised this with the Applicant previously.18 The Applicant submits that she has no memory of this being raised with her previously.19 Further, the Applicant submits that Dr Elbarki raised issues with her attending work one or two minutes late and the use of mobile phones during work hours.20 The Applicant submits that following the meeting Dr Elbarki told her to never question her authority.21

Meeting of 11 May 2016

[16] On 11 May 2016, the Applicant submits she was called into Dr Elbarki’s office and told that she had not tracked instruments, that Dr Elbarki said she had a list of patients where no tracking had been done, that she had notified the Dental Board and her insurance company and that she had not received an apology. 22 The Applicant submits that she apologised even though she did not want to.23 The Applicant submits that Dr Elbarki asked her if she wanted to leave or if she wanted to work with her “under her rule?”.24

[17] Dr Elbarki’s evidence is that she approached the Applicant on 11 May 2016 whilst she was working at reception to further discuss her concerns from the meeting of 5 May 2016. 25 Her evidence is that she showed the Applicant the tracking record book to demonstrate to her the tracking of instruments had been inconsistent. Dr Elbarki’s evidence is that she concluded the discussion with words to the effect of “Wendy, you need to think about whether you are happy knowing that I am the boss and that you need to listen to what I say”.26 Dr Elbarki denied telling the Applicant she had to work under her rule and denied giving the applicant a choice and denied telling the Applicant to resign.27

Resignation Letter of 11 May 2016

[18] The Applicant submits that she wrote her letter of resignation the night of 11 May 2016 and gave it to Dr Elbarki 12 May 2016. 28 Her letter of resignation stated:

“Please accept this letter as my resignation from my position at the clinic. Today will be my last being the 12/05/2016.

As from the talk from you yesterday, I feel that I have not let you down as you as the operator it is up to you to control your clinic, you have moved the goal post within the surgery.

I have no need to be spoken down to when you have not got a starched workplace plan.

Yes the tracking has not been completed and I understand the problems occurred with this.

The ultrasonic has not been in use for some time. I think you can’t have a go at your staff when you can’t even supply all the equipment needed to operate properly. I could go further but don’t think there is any need as today is my last day.”

Letter of 31 May 2016

[19] On 31 May 2016, the Applicant sent a letter to Dr Elbarki of the Respondent, entitled ‘Unfair Dismissal and Unpaid Entitlements’. 29 This letter, 11 pages in length, provided additional reasons to support the Applicant’s letter of resignation. In the letter the Applicant submits that the meeting of 5 May 2016 lacked procedural fairness.30 The Applicant also submits in the letter that she was asked if she wanted to leave or if she wanted to work with Dr Elbarki “under her rule”.31 The letter also includes the Applicant’s submission that the Respondent business was under pressure financially.32 This letter was the first time that the issue of falsification of records was raised by the Applicant with the Respondent.33

Further reasons provided by the Applicant

[20] The Applicant’s evidence at the hearing is that the reason she did not raise any of the issues of her 31 May letter with Dr Elbarki of the Respondent, was because she was “too scared to”. 34 The hearing was the first time that the Applicant submitted that she was scared of Dr Elbarki of the Respondent. The Applicant has since relied upon this in her closing submissions as a reason to support her submission that she was forced to resign.

[21] The Applicant put to Dr Elbarki in cross-examination that the reason she was made to resign was that Dr Elbarki did not want her to be a witness in an investigation by the Dental Board. 35 Dr Elbarki denied this and denied that she made her resign.36

Protection from Unfair Dismissal

[22] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[23] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[24] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period, that she was covered by the Health Professionals and Support Services Award 2010 [MA000027] and the sum of her annual rate of earnings is less than the high income threshold. 37 Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[25] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[26] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[27] No issue was raised in relation to s.385(d) of the Act.

[28] It is clear on the evidence of both the Applicant and the Respondent that the Respondent was a small business (as defined in section 23 of the Act) at the time of the dismissal. The Applicant’s evidence was that the Respondent had five employees, four being part-time. 38 The Respondent’s evidence was they had 4 employees at the time of the dismissal.39

[29] As to the matters raised by s.385(a) of the Act, a person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3-2 of the Act. Section 386 of the Act provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[30] The Applicant says she was dismissed from her employment as a dental nurse and receptionist because she was forced to resign 12 May 2016 because of conduct or a course of conduct engaged in by the Respondent (s.386(b) of the Act).

[31] I have to be satisfied that the Applicant was dismissed by the Respondent. It is only if I am satisfied the Applicant was dismissed by the Respondent, that I will be required to address s.385(b) of the Act, the question of whether the dismissal was harsh, unjust or unreasonable.

Was the Applicant dismissed?

[32] The concept of termination at the employer’s initiative has been an essential characteristic of the concept of dismissal in workplace relations legislation for many years. In Mohazab v Dick Smith Electronics Pty Ltd (No2) 40 the Court summarised this concept in the following terms:

“On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”

[33] The position adopted by the Court in Mohazab was further endorsed by a Full Bench of the Commission in O’Meara v Stanley Works Pty Ltd 41:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (references omitted)

[34] I have applied these concepts to the Applicant’s circumstances.

[35] The Applicant submits that she was forced to resign by the conduct of Dr Elbarki in relation to the falsification of patient records and the meetings of 5 May 2016 and 11 May 2016. The Applicant submits this constitutes constructive dismissal.

[36] The Respondent submits that there is a distinct lack of compulsion in the Respondent’s conduct and that it does not meet the required level to establish the Applicant was ‘forced’ to resign. Further, the Respondent submits that the Applicant had other reasonable alternatives to resignation.

[37] I am satisfied and accept the Applicant’s evidence that she was distressed about the events of the 21 April 2016 and the subsequent meetings of 5 May 2016 and 11 May 2016. I also accept that the Applicant felt a great deal of animosity towards Dr Elbarki for what she perceived as a wrongdoing directed at her. However, I am obliged to consider the evidence before me on an objective basis. I am not satisfied that the matters about which the Applicant complains were matters that could be said to be actions on the part of Dr Elbarki to bring the Applicant’s employment to an end or had the probable result of doing so. To the contrary Dr Elbarki’s actions subsequent to the 21 April 2016 incident were to implement a series of steps to ensure that a transgression of the sort that had occurred would not occur again. I am not satisfied that the manner in which the investigation was conducted by Dr Elbarki after the 21 April 2016 incident ought be properly characterised as an attempt to bring the employment relationship to an end.

[38] On the Applicant’s and Respondent’s evidence, Dr Elbarki of the Respondent at the meeting of 5 May 2016 sought to amend the Respondent’s practices regarding the tracking of instruments. 42 This indicates that there was no on-going issue of the Applicant being required to falsify records. The highest the evidence can go is that on that single occasion records were falsified, this finding is not changed if the person who falsified the records is the Applicant, at the instruction of Dr Elbarki, or Dr Elbarki of the Respondent.

[39] It is the Applicant’s evidence that Dr Elbarki gave her a choice to leave or to “work under her rule”, Dr Elbarki denies this and says she said words to the effect of “Wendy, you need to think about whether you are happy knowing that I am the boss and that you need to listen to what I say”.  43 Whilst I accept that the Applicant gave her evidence in a forthright manner, I preferred the evidence of Dr Elbarki in relation to this issue.

[40] Further, the Applicant’s resignation letter of 11 May 2016 is insightful, in that it does not remotely allude to any threat made by Dr Elbarki as to the Applicant being given a choice of leaving or working under Dr Elbarki’s rule. The Applicant’s argument that the letter is deficient because of her lack of legal training does not explain why the letter in its plain language refers to other reasons for her resignation and not the several reasons ultimately advanced by the Applicant.  44

[41] Whilst I am satisfied that a number of allegations made against the Respondent are indicative of failings on the part of the Respondent, I am not satisfied that they can be objectively regarded as meeting the tests that are set out in Mohazab and O’Meara such that the Applicant’s decision to resign should be regarded as a dismissal at the initiative of the Respondent.

[42] In the circumstances of the present case, resignation was a possible or foreseeable result of the respondents conduct, and in many respects a reasonable response in the circumstances. However, this is not in itself sufficient to demonstrate the Applicant’s resignation was in effect a dismissal. The Applicant had other avenues available to resolve any perceived issues with her employer and she allowed some time to elapse between the incident of the 21 April 2016 and the meetings of 5 May 2016 and 11 May 2016. Further, I have taken into account the nature of the Respondent’s conduct subsequent to the 21 April 2016 incident, including her reporting of the transgression to her association and her attempts to implement changes to the operation of the practice to ensure that such an incident was not repeated. Taking all these factors into consideration, I do not consider the Applicant’s resignation was the probable result of the Respondent’s conduct and therefore that the Applicant was forced to resign because of that conduct.

Conclusion

[43] In these circumstances, I am unable to find that the Applicant was terminated at the initiative of the Respondent or that there was a resignation of employment constituting a dismissal within the meaning of s.386(1)(b) of the Act. It is therefore not necessary for me to address s.385(b) of the Act and determine the question of whether the dismissal was harsh, unjust or unreasonable.

[44] The application is dismissed and an order 45 to this effect will be issued.

COMMISSIONER

Appearances:

W Jackson, Applicant;

A Denton, of Counsel, instructed by Gadens Lawyers for Respondent.

Hearing details:

2016

7 September and 3 November.

Final written submissions:

Applicant’s Final Submission, 3 October 2016

Respondent’s Final Submission, 14 October 2016

Applicant’s Final Submission in reply, 28 October 2016

 1   PN49 & 57.

 2   PN59 & 89.

 3   PN59.

 4   PN80.

 5   Applicant’s Outline of Submissions, filed 25 July 2016, p.2.

 6   Outline of Employer’s Submissions in Support of the Jurisdictional Objection, filed 25 July 2016, p.3.

 7   Exhibit A1, par.29.

 8   Ibid, par.28.

 9   Ibid, par.30-31.

 10   Ibid, par.32.

 11   Ibid.

 12   Ibid, par.35.

 13   Exhibit R2, par.25; Exhibit R3, par.11.

 14   Ibid.

 15   Ibid; PN509-511, 533, 541-543, 671, 800.

 16   Exhibit A1, par.51.

 17   Ibid, par.52

 18   Ibid, par.53

 19   Ibid., par.53.

 20   Ibid, par.60-61.

 21   Ibid, par.64.

 22   Ibid, par.67-72.

 23   Ibid, par.73.

 24   Ibid, par.75.

 25   Exhibit R2, par.46-47.

 26   Exhibit R2, par.52

 27   Exhibit R3, par.16; PN792 & 900.

 28   Ibid, par.78-79.

 29   Exhibit A1, par.80, attachment B.

 30   Exhibit A1, attachment B, p.1 & 4-5.

 31   Exhibit A1, attachment B, p.7.

 32   Ibid, p.2.

 33   Ibid, p.2-3.

 34   PN318, 391 & 413.

 35   PN537-540.

 36   PN537-540.

 37   Applicant’s Outline of Submissions, filed 25 July 2016, par.3-4, & 7; Exhibit A1, par.9-11.

 38   Applicant’s Outline of Submissions, filed 25 July 2016, p.2.

 39   PN1462

 40   (1995) 62 IR 200 at 206.

 41   PR 973462 AIRC 2006(11 August 2006).

 42   Exhibit A1, par. 56, PN312, Exhibit R2, par.31.

 43  Exhibit A1, par.75; Exhibit R2, par.52.

 44   Applicant’s Closing Submissions, dated 29 September 2016, par.55.

 45   PR589187.

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<Price code C, PR589186>