DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Suzara
v
St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Hospital Melbourne
(U2018/4805)

Application for an unfair dismissal remedy.

[1] Mr Wayne Suzara (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by St Vincent’s Private Hospitals Ltd T/A St Vincent’s Private Hospital Melbourne (the Respondent, St Vincent’s, the Hospital). The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The hearing of Mr Suzara’s application took place on Monday, 17 September 2018 and Tuesday, 18 September 2018. Mr Suzara gave evidence. For the Respondent, Ms Agata Morina, Human Resources Consultant; Ms Katherine Rance, Nurse Unit Manager; Mr Marco Sabatini, Senior Theatre Technician; Mr Rey Limsiaco, Associate Nurse Unit Manager; Mr Paul Kellett, Theatre Technician, Mr Stephan Mouawad, Theatre Technician and Ms Asmita Ojha, Associate Nurse Unit Manager gave evidence.

[3] Mr Suzara was represented by Mr G Dircks, consultant and St Vincent’s by Mr J Tracey, of Counsel.

[4] Written Closing Submissions were provided on behalf of the Applicant on 11 October 2018 and by the Respondent on 25 October 2018. Reply Submissions on behalf of the Applicant were filed on 5 November 2018.

Background

[5] It is useful in this matter to set out a brief chronology of events:

•  15 October 2013 - Mr Suzara commenced employment with St Vincent’s as a Theatre Technician.

•  June 2016; October 2016 and November 2016 - Mr Suzara was verbally counselled in relation to a number of issues.

•  21 December 2016 - Mr Suzara received a first warning in relation to physically pushing an Associate Nurse Unit Manager at the bottom of the internal Theatre staircase, on 14 December 2016, and for taking unauthorised extended meal and tea breaks.

•  March 2017 – Mr Suzara was verbally counselled about his failure to provide adequate certification to support his personal leave absence.

•  September 2017 - Mr Suzara was verbally counselled regarding events on 31 August 2017 relating to Mr Li, orthopaedic surgeon.

•  21 September 2017 - Mr Suzara received a second written warning regarding confronting, victimising and intimidating Ms Bowler in relation to a complaint Ms Bowler had made.

•  October 2017 - Mr Suzara was stood down with pay whilst there was an investigation following his attendance at work strongly smelling of alcohol.

•  October 2017 - Mr Suzara was verbally counselled in relation to having smelled of alcohol at work and his ongoing inappropriate use of his personal mobile during theatre sessions.

•  15 December 2017 - Mr Suzara received a third and final formal warning for using his personal mobile phone during a Theatre session by taking photos of himself and communicating them via a message service.

•  February 2018 - Mr Suzara was verbally counselled about attempting to hang and connect a bag of intravenous fluid to a patient which was outside the scope of practice of a Theatre Technician.

•  February 2018 - Mr Suzara was verbally counselled about the content of the medical certificate he had provided, dated 5 February 2018.

•  March 2018 - Mr Suzara was verbally counselled on three occasions in relation to his refusal to go into Mr Jackson’s theatre; going home sick early without verbally communicating this and his behaviour in Theatre on 19 March 2018 when he was absent for most of Theatre and inattentive to tasks.

•  22 March 2018 - an incident regarding not setting up the equipment in theatre for Mr Powell’s afternoon case as instructed.

•  12 April 2018 - an incident concerning the interaction between Mr Suzara and Mr Mouawad.

•  16 April 2018 - Mr Suzara was stood down on full pay following receipt of complaints about the 22 March and 12 April 2018 incidents.

•  17 April 2018 - a letter was sent to Mr Suzara setting out two allegations with a meeting to be held on 19 April 2018 to hear Mr Suzara’s response.

•  19 April 2018 - Mr Suzara’s employment was terminated by St Vincent’s.

•  26 April 2018 - Mr Suzara was sent a letter of termination setting out the allegations together with Mr Suzara’s responses.

Legislative framework

[6] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[7] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[8] The reasons for Mr Suzara’s dismissal were set out in the letter of dismissal dated 26 April 2018. The first reason was that, on 12 April 2018, Mr Suzara had yelled at and harassed a colleague, and threatened to report him if he did not do as he was told by Mr Suzara. The second reason was that Mr Suzara had failed to follow the instructions given to him by another employee and the surgeon, on 22 March 2018, in relation to the theatre set up. This had resulted in a delay in the theatre list. 1

[9] At the hearing, the Respondent also relied on a third reason for dismissing Mr Suzara. This was that Mr Suzara was dishonest with St Vincent’s in relation to a number of matters which had irrevocably destroyed the relationship of trust and confidence between the Hospital and Mr Suzara. 2 This reason related to Mr Suzara’s dishonesty in his communications in that, amongst other things, Mr Suzara had obtained certification for personal leave when he had pre-arranged travel to the Philippines.3

[10] Finally, the letter also stated that, in making the decision to dismiss Mr Suzara, all of the relevant information on Mr Suzara’s file, together with the third and final warning, dated 5 December 2017, had been taken into account. 4 Mr Suzara’s conduct and work performance, over the last 2 years of his employment with the Hospital was also relied on at the hearing (fourth reason/considerations). These considerations were also referred to by the Respondent in relation to section 387(h) of the Act.

[11] The Commission is required, in cases where the reason for dismissal relates to the conduct of the employee, to determine for itself, on the basis of the evidence before it, whether the alleged conduct took place and what it involved. Therefore, in dealing with the requirements of s.387(a) of the Act - was there a valid reason for the dismissal - the Commission will, in the first instance, address each of the allegations and make findings of fact in relation to the allegations. The Commission will then address each of the other subsections of s.387 of the Act in turn.

1. Incident on 12 April 2018

[12] It was alleged by St Vincent’s that, on 12 April 2018, Mr Suzara had yelled at and harassed a colleague and threatened to report him if he did not do as he was told by Mr Suzara. The colleague in question was Mr Mouawad, a fellow Theatre Technician. Ms Ojha witnessed the exchanges between Mr Suzara and Mr Mouawad as did Mr Kellett, another Theatre Technician. Ms Rance also gave evidence about this incident.

Evidence

Mr Suzara

[13] Mr Suzara provided a witness statement 5 and also gave oral evidence. It was Mr Suzara’s evidence that:

•  He confirmed Mr Kellett’s witness statement which said that Mr Mouawad had been telling him (Mr Suzara) what needed to be done. Mr Suzara denied that he had become agitated or that he had yelled at Mr Mouawad. 6

•  He denied that he had followed Mr Mouawad and had kept on harassing him and telling him what to do. Mr Suzara also denied that he had told Mr Mouawad to do this and do that. 7

•  He denied that Mr Mouawad had responded by saying that he was busy in theatre 7 taking the patient off. 8

•  He also denied telling Mr Mouawad that he would report him if he didn’t do what he said, in front of doctors and nurses in theatre 7. 9

•  In his witness statement, he indicated that he had threatened to report Mr Mouawad and that he thought that that was appropriate given what Mr Mouawad was and was not doing. 10

•  He confirmed that he had told Mr Mouawad that he needed help in theatre 2. This was because one of the surgeons in theatre 2 had asked him to get assistance to transfer a patient from one table to another. Mr Suzara said that he had to ask for assistance several times before Mr Mouawad helped him. 11 It was explained that theatre 2 was not Mr Suzara’s theatre.12

•  As Mr Mouawad was not responding to his request for assistance, he had said to Mr Mouawad that he would report him if he didn’t help him. 13

•  During the meeting on 19 April 2018, he had explained the situation regarding having to repeatedly asked Mr Mouawad for assistance with the patient transfer. 14

•  Management had raised a different situation which concerned him going up to the tearoom to Mr Mouawad who had been on more than the normal break time. 15

•  Mr Mouawad had the only list of where the bed should go and he had told Mr Mouawad that there was only five minutes to knock off time and he (Mr Mouawad) now wanted to do the tables. 16

•  Mr Mouawad was said to have reacted badly but Mr Suzara said he had not yelled at Mr Mouawad but had said that he was going to talk to Mr Sabatini about Mr Mouawad’s extended breaks. 17

Mr Mouawad

[14] Mr Mouawad provided a witness statement 18 and gave oral evidence. It was Mr Mouawad’s evidence that:

•  There were three theatre technicians working on an evening shift on 12 April 2018 – Mr Suzara, Mr Kellett and himself. 19

•  During shift, Mr Suzara followed him and kept harassing him telling him what to do next, in front of other staff. 20

•  Mr Suzara came into theatre 7 and asked him to assist with the patient transport. Mr Mouawad could not remember if he had responded the first time Mr Suzara had asked him. Mr Mouawad stated that Mr Suzara had asked him more than once to come and help with a patient transfer. Mr Mouawad recounted that he did go and help Mr Suzara in theatre 2 - eventually because he was busy in theatre 7. 21

•  Mr Suzara told him that he would report him if he didn’t do as he said. 22

•  He had responded to Mr Suzara saying that, if theatre 2 needed someone, then why didn’t Mr Suzara go? 23

•  He had finally gone and helped Mr Suzara in theatre 2 after he had completed his own patient transfer. Mr Mouawad thought that Mr Kellett, as well as Mr Suzara and himself, were in theatre 2. 24 Mr Mouawad explained that he knew that Mr Kellett was also in theatre 2 because the theatre technicians communicated with each other.25

•  There were 3 theatre technicians, briefly, involved in moving the patient in theatre 2. 26

•  He didn’t get his tea break until a bit later than 8.20pm. Mr Suzara came up to the tearoom and told him that he had been sitting in the tearoom all night whilst he (Mr Suzara) had been doing all the work. 27

•  He denied that he went for tea for too long. 28

•  He thought that he had responded to Mr Suzara that he was having his break (he only took 15 minutes) and would be down shortly. Mr Mouawad said that he thought that Mr Suzara had then left the room. 29

•  When he returned from his break, he wanted to move the operating tables for the next day (a two-person job). 30

•  He did not have the list of the required set up for the next day as it was up on the notice board. 31

•  He and Mr Suzara were in the corridor when he asked Mr Suzara to help him move the table but Mr Suzara started arguing and harassing him saying that he had been doing all the work whilst Mr Mouawad had been sitting in the tea room all night. 32

•  When Mr Suzara said that he was doing all the work, Mr Suzara had his arms folded and was yelling at him. Mr Mouawad said that, when Mr Suzara did not stop, he had told him that that was enough and asked Mr Suzara if he could just help him. 33

•  Mr Suzara said that he was going to have to talk to Mr Sabatini tomorrow about Mr Mouawad’s extended breaks. 34

•  When they were walking down the corridor, Mr Suzara was arguing. Mr Mouawad denied that his voice was raised. 35

•  A nurse heard Mr Suzara yelling at him and told he and Mr Suzara to stop arguing. 36

•  Mr Suzara help moved one table and had then walked off. 37

•  He spoke to Ms Ojha (Floor Coordinator) and told her that Mr Suzara would not stop harassing him and that Mr Suzara had upset him. Ms Ojha told him that he could provide feedback through a Riskman which he completed at the end of his shift. 38

Mr Kellett

[15] Mr Kellett provided a witness statement 39 but was not required for cross-examination. It was Mr Kellett’s evidence that:

•  He recalled an incident about 6 months prior to the 12 April 2018 event which involved Mr Suzara, himself and Mr Mouawad when it was alleged that Mr Suzara had disagreed with Mr Mouawad and himself. Mr Kellett recounted that Mr Suzara had become aggravated and had begun to verbally abuse them (said they were “goons”) and told them that he was videoing them moving the tables. 40

•  He had reported the incident to the in-charge theatre coordinator that evening. 41

•  On 12 April 2018, Mr Suzara had caused an inappropriate and loud argument with Mr Mouawad in the theatre corridor. 42

•  Mr Mouawad had been talking to Mr Suzara during the evening about the team jobs that still needed to be done by the team. Mr Kellett recalled that Mr Suzara became very aggravated with Mr Mouawad and believed that this was because Mr Mouawad was telling Mr Suzara what jobs needed to be done. 43

•  Mr Mouawad was not telling Mr Suzara what Mr Suzara needed to do but rather what the team needed to still do. Mr Kellett felt that Mr Suzara took this personally. 44

•  He and Mr Suzara ended up near theatre 8 at which time Mr Suzara referred to Mr Mouawad as a “little something”. 45 It was recounted that Mr Suzara had told him that he would wait until Mr Mouawad returned from his break (which was a normal one of about 10 minutes) to confront him.46 Mr Kellett stated that Mr Suzara was very angry when he was speaking to him about Mr Mouawad.47

•  When he was walking back into the main theatre corridor, he heard a loud argument between Mr Suzara and Mr Mouawad. Mr Kellett recalled that he heard loud voices but could not make out the words. 48

•  As he walked down the corridor, he saw Mr Mouawad and Mr Suzara and stated that the argument continued whilst he walked past them. Mr Kellett indicated that they were speaking to each other loudly and that Mr Mouawad did not seem to be in an angry mood. 49

•  There was a nurse in the corridor who told them to be quiet. 50

Ms Ojha

[16] Ms Ojha provided a witness statement 51 and gave oral evidence. Ms Ojha’s evidence was that:

•  On 12 April 2018, she was in the Floor Coordinator’s office when she heard Mr Suzara asking questions of Mr Mouawad while they were walking down the corridor. Ms Ojha recalled Mr Suzara asking Mr Mouawad about why he had taken such a long tea break and why Mr Mouawad had not completed specific tasks. 52

•  She heard Mr Mouawad respond “Excuse me?”. 53

•  She stated that Mr Suzara spoke in a loud tone and loud enough for her to hear him from the office (about 5 – 10 metres away). 54

•  Later, Mr Mouawad came to her to debrief and said that Mr Suzara had followed him round all night and was bossing him around to do some work. Mr Mouawad had said that he felt that Mr Suzara was harassing him. 55

•  To the best of her recollection, she had told Ms Rance about the incident the following day. 56

Ms Rance

[17] Ms Rance gave evidence that:

•  She had interviewed Mr Mouawad as well as reviewing Mr Mouawad’s Riskman complaint. 57

•  She had not interviewed Mr Sabatini as he was not on shift at the time. 58

•  She spoke to Mr Kellett about the incident the following day. Mr Kellett was said to have recalled that there was yelling between Mr Mouawad and Mr Suzara. 59

•  Mr Kellett did not tell her that he thought that Mr Suzara had become aggravated by Mr Mouawad telling him what tasks needed to be done. 60

•  When she spoke to Mr Mouawad, Mr Mouawad believed that he was on his tea break for about 10 – 15 minutes. 61

Submissions

Applicant

[18] It was submitted on behalf of the Applicant that Ms Ojha did not give any evidence in support of the allegation that Mr Suzara had harassed and threatened to report his colleague, Mr Mouawad. She did state that the Applicant spoke in a loud tone. 62

[19] It was submitted that Mr Suzara did threaten to report Mr Mouawad but only if he continued to refuse to assist to move a patient in Theatre 2. Mr Suzara was recalled to have stated that he did not yell and was not angry. 63

[20] Mr Kellett also gave evidence regarding the allegation of Mr Suzara yelling and threatening to report Mr Mouawad. Mr Kellett was recalled to have said that the Applicant became ‘Aggravated’ with Mr Mouawad and that a loud argument erupted between the two caused by Mr Suzara. Mr Kellett also observed that Mr Mouawad was telling the Applicant what needed to be done. It was submitted on behalf of the Applicant that what transpired was contributed to by both employees. 64

[21] Mr Dircks submitted that the Applicant’s submissions should be preferred regarding the conflicting account of just who was assisting in the various theatres, the times at which tea breaks were taken and whether or not the Applicant had harassed and threatened Mr Mouawad. It was argued that there was simply no basis to conclude that the exchange between the Applicant and Mr Mouawad was anything other than an argument between two co-workers. 65

Respondent

[22] It was submitted by the Hospital that there were four valid reasons related to the Applicant’s conduct which provided a sound and just basis for his dismissal. These reasons were:

•  The incident on 12 April 2018

•  The incident on 22 March 2018

•  Mr Suzara’s dishonesty with the employer with respect to his absence from the workplace.

[23] The Respondent also took into account Mr Suzara’s history of misconduct and poor performance (fourth reason). This history was said to include the provision of three written warnings and 15 separate occasions where the Applicant was counselled in respect to his conduct and performance over a relatively short period of time, viz less than two years. 66

[24] It was submitted by St Vincent’s that on 12 April 2018, Mr Suzara yelled at and harassed Mr Mouawad, a fellow theatre technician. Mr Mouawad’s evidence was that on that day, Mr Suzara had followed Mr Mouawad around a number of theatres telling him what to do and refusing to assist him when requested. It was said that Mr Suzara’s conduct towards Mr Mouawad was rude, aggressive, disrespectful, unacceptable and unprofessional. 67

Considerations and conclusions

[25] This allegation concerned Mr Suzara being witnessed yelling at a work colleague (Mr Mouawad) who later reported that Mr Suzara was harassing him and that Mr Suzara had to threaten to report Mr Mouawad if Mr Mouawad did not do as Mr Suzara had asked.

[26] It was Ms Ojha’s evidence that Mr Suzara was speaking to Mr Mouawad, whilst they were walking down the corridor, in a loud tone which was loud enough for her to hear from the office (5 to 10 metres away). Ms Ojha also gave evidence that Mr Mouawad had come in to see her later to debrief and had told her that Mr Suzara had followed him around all night and was bossing and harassing him.

[27] Mr Kellett gave evidence that Mr Suzara had caused an inappropriate and loud argument with Mr Mouawad in the theatre corridor and that they had ended up near theatre 8 at which time Mr Suzara refer to Mr Mouawad as a “little something”. It was stated by Mr Kellett that, when he walked past Mr Suzara and Mr Mouawad in the corridor, they were speaking to each other loudly and that Mr Mouawad did not seem to be in an angry mood. It was also Mr Kellett’s evidence that when, prior to the corridor event, Mr Suzara was speaking to him about Mr Mouawad, Mr Suzara was very angry.

[28] Mr Kellett said that he felt that, as Mr Mouawad had been talking during the evening about the team jobs that still needed to be done, Mr Suzara had taken it personally and had become very aggravated with Mr Mouawad.

[29] For Mr Suzara’s part, he denied that he had become agitated with Mr Mouawad or that he had yelled at him. Mr Suzara’s evidence was that Mr Mouawad had been telling him what needed to be done and said that he had not followed Mr Mouawad and harassed him and told him what to do. It was stated by Mr Suzara that he had threatened to report Mr Mouawad which he thought was appropriate given what Mr Mouawad was and was not doing.

[30] Mr Suzara’ evidence was also that, during the meeting on 19 April 2018, the Hospital had raised a different situation regarding him going up to the tea room and the conversation he then had with Mr Mouawad.

[31] It was Mr Mouawad’s evidence that, during the shift, Mr Suzara had followed him and had kept harassing him about what to do next. Mr Mouawad recalled Mr Suzara asking him for assistance with a patient transfer more than once and stated that he had eventually assisted Mr Suzara (he had been busy in his own theatre). When he was in the tea room having a late break, Mr Suzara had come up and told him that he had been sitting on the tea room all night whilst Mr Suzara had been doing all the work.

[32] Mr Mouawad had also recounted that, after his tea break, he had wanted to move the tables for the next day and so had asked Mr Suzara to help him. He was in the corridor when he had requested Mr Suzara’s help. Mr Mouawad said that Mr Suzara had then started arguing and harassing him and yelling at him with his arms folded. Mr Suzara had told him that he would report him to Mr Sabatini in the morning. As they were walking down the corridor, Mr Mouawad stated that Mr Suzara was arguing with him but that he had not raised his voice.

[33] On the same day, 12 April 2018, Mr Mouawad completed a Riskman incident report which stated that he was being constantly harassed by Mr Suzara by him following him into theatres and telling him what to do. Reference was made to Mr Suzara’s request for assistance with a patient transfer. It also stated that Mr Suzara had kicked up a big fuss when he (Mr Mouawad) was at tea, saying that Mr Mouawad had left all the work to him. Mr Mouawad also recorded that, after he had asked Mr Suzara for help with moving tables, Mr Suzara had started yelling at him and that Mr Suzara would not stop.

[34] Having carefully considered the evidence before me, I find that Mr Suzara yelled at Mr Mouawad (in the corridor) and threatened to report Mr Mouawad to Mr Sabatini. Further, on the balance of probability, I find that it is probable that Mr Suzara did harass Mr Mouawad – with respect to the length of his tea break and also that Mr Suzara bossed Mr Mouawad around and told him what to do. It is noted that Mr Kellett gave evidence that Mr Mouawad had talked about the jobs that the team had to do that evening. Mr Suzara’s evidence was that he had been told what to do all evening by Mr Mouawad. It was also Mr Kellett’s evidence that Mr Suzara had taken Mr Mouawad’s talking about the team’s jobs personally. In addition, Mr Mouawad’s account was also corroborated by Ms Ojha and also by the Riskman incident report the Mr Mouawad had made the same day.

2. Incident on 22 March 2018

[35] It was alleged by St Vincent’s that Mr Suzara had failed to follow a surgeon’s instructions regarding the equipment set up that he had requested earlier in the day. There is evidence before the Commission in relation to this event from Mr Suzara, Mr Limsiaco and Ms Rance.

Evidence

Mr Suzara

[36] Mr Suzara gave evidence that:

•  He agreed that he had specific instructions about the equipment that Mr Powell needed for this case. 68

•  Mr Limsiaco told him that Mr Powell needed a specific traction table and apparently it was the incorrect one that he thought Mr Limsiaco had suggested. 69

•  He had taken the initiative to call Mr Powell to ask him what type of setup he needed. Having spoken to Mr Powell, he had set up the traction table that he believed was the correct one. 70

•  He disagreed that, when Mr Powell arrived, there was no operating table, traction table or rush bar set up at that stage and stated that it was set up. Mr Suzara recalled that when Mr Powell saw the setup, he told Mr Suzara that it was the wrong one. Mr Suzara had responded that that was the setup that he normally set up for Dr Powell’s hip traction. Mr Suzara explained that Mr Powell had then showed him the specific setup that he needed and had helped Mr Suzara do this. It was stated that this had taken less than five minutes. 71

•  He had refused Mr Limsiaco’s offer of assistance because he was already working with Mr Powell putting the table that he wanted into the position that he needed. Mr Suzara denied that the delay was an hour and said that it was not due to the wrong equipment but due to the positioning of the patient. 72

•  Mr Powell had asked him to get the bar and he thought that it was the usual bar. Mr Suzara explained that it turned out to be the wrong bar and that Mr Powell became agitated. Whilst he was trying to find the correct bar, he understood that Mr Powell had made a complaint and asked for him to be replaced. 73

•  He confirmed that Ms Rance was there when he returned with the bar and that Ms Rance had offered to swap him with another technician. Mr Suzara recalled that he had said that it was okay because there were a lot of staff in theatre and he didn’t think the surgeon would like that. 74

•  He had been put in the theatre without any knowledge or experience in this type of surgery. 75

•  He accepted some of the blame for the delay in the surgery. 76

•  The request was for the traction table and nothing more specific so he had got the traction table that the surgeons generally used. Mr Suzara said that he had a lot of orthopaedics experience. 77

•  It was an inadvertent mistake. It was miscommunication because he was unaware of the old traction table. 78

•  He recalled that Mr Powell did not want to try the new gloves and that he did not like the diathermy and had thrown it in the bin. Mr Suzara stated that Mr Powell was giving everyone a hard time and that it was traumatic. 79

Mr Limsiaco

[37] Mr Limsiaco provided a witness statement 80 and also gave oral evidence. Mr Limsiaco’s evidence was that:

•  On 22 March 2018, he received instructions from Mr Powell, around 12.00/12.30pm, regarding the specific equipment and positioning that he required for his afternoon case. Mr Limsiaco stated that Mr Powell had requested a traction table, the dynamic hip screw set and the x-ray/imaging equipment. It was recalled that Mr Powell had been clear that he needed a table that was compatible with x-ray and the contraction that he was going to use. 81

•  Mr Powell did not specify the exact traction table but made it clear that it was to be compatible with the contraction he was going to use. Mr Limsiaco explained that there were 4 types of traction table and he believed that they were all different. 82

•  He passed on Mr Powell’s instructions by first ringing the theatre and he passed on the instructions to the nurse. 83

•  He spoke to Mr Suzara about Mr Powell’s instructions when he did his rounds after making the phone call. Mr Limsiaco stated that he had gone into the theatre and repeated the instructions he had given to the nurse to the whole team to ensure that everyone was aware of what was needed. Mr Limsiaco stated that everyone, including Mr Suzara, had looked at him when he was speaking to them. 84

•  About 10 minutes later, Mr Suzara had approached theatre reception (where he was standing) and ask for Mr Powell’s phone number so that he could ask Mr Powell personally about what he needed for theatre. 85

•  He had said to Mr Suzara that, if he wanted to check again, that was fine. Mr Limsiaco recalled that he was dealing with other staff issues at the time. 86

•  Around 1.15pm, he saw Mr Powell walk into the office looking very upset and angry. Mr Limsiaco said that he did not speak to Mr Powell directly and that Mr Powell had spoken to Ms Matulin. It was recalled by Mr Limsiaco that he could not hear Mr Powell’s exact words but that the tone and pitch of Mr Powell’s voice indicated that he was complaining and Mr Powell was waving his hands around quickly. Mr Limsiaco stated that he was standing just right around where Mr Powell and Ms Matulin were standing. 87

•  After Mr Powell left, he spoke to Ms Matulin about what he had done earlier to convey Mr Powell’s instructions. 88

•  He had then met Mr Suzara in the corridor near the door to the theatre and offered him assistance if he needed it. Mr Suzara was recalled to have said “I got this”. 89

•  He had repeated his offer of assistance to Mr Suzara and said that another technician could help set up the theatre. Mr Suzara had repeated his response that he had “got this”. 90

•  He was not aware that the surgeon was unhappy with gloves in the theatre and with the diathermy, apparently throwing one. 91

•  He was not aware if any of the nurses were sent out of the theatre. Mr Limsiaco said that that did not happen at that time. 92

•  There were no complaints, at that time, about the surgeon by the nurses who were in the theatre. 93

Ms Rance

[38] Ms Rance gave evidence that:

•  At around 2.30pm, Mr Powell came and saw her and demanded that Mr Suzara be removed from theatre and be replaced by a more experienced technician who knew what they were doing. 94

•  She had approached Mr Suzara to swap him with another theatre technician but Mr Suzara refused assistance and said that he had “got this” and that everything was under control. 95

Submissions

Applicant

[39] It was submitted that the evidence regarding the alleged failure by Mr Suzara to follow lawful instructions on March 22 was ‘very sparse if not completely non-existent’. 96 Further, it was argued that there was no evidence given by Mr Powell, the surgeon, as to his instructions. Added to this was the alleged fact that the instructions given to the Applicant were not made by any witness who appeared in the proceedings.97

[40] The Applicant argued that the instructions given to Mr Suzara came from a nurse and not Mr Limsiaco and further that the instructions were unclear. It was further contended that the evidence pointed to poor communication and to no fault on the part of Mr Suzara for the delay in surgery. 98 In summary, it was stated that there was no evidence, or at best inadequate evidence that the Applicant failed to follow a lawful instruction.99

St Vincent’s

[41] It was submitted that Mr Suzara had been informed by Mr Limsiaco about the equipment that was required for a theatre case that afternoon, as instructed by Mr Powell, but that there was no equipment present in the theatre when Mr Powell arrived. Mr Powell had demanded that Mr Suzara be removed from the theatre and replaced. During cross-examination, it was noted that the Applicant appeared to accept some blame for the delay in surgery on 22 March 2018. The Hospital submitted that the delay in performing the serious operation was solely due to the incompetence of the Applicant. 100

Considerations and conclusions

[42] St Vincent’s alleged that, on 22 March 2018, Mr Powell had complained that his theatre was unprepared by Mr Suzara. It was stated that Mr Suzara had failed to follow Mr Powell’s instructions and that, when Mr Powell had arrived, the theatre was not ready and the required equipment was not present. This had resulted in a delay of over one hour in surgery.

[43] It was common ground that Mr Limsiaco had advised all of the team, including Mr Suzara, of Mr Powell’s specific instructions regarding his required equipment for the case that afternoon. It is also not disputed that, after the briefing by Mr Limsiaco, Mr Suzara had telephoned Mr Powell’s rooms to check on Mr Powell’s equipment requirements for the case that afternoon. It is also undisputed that Mr Powell complained to Ms Matulin and then later, made a complaint to Ms Rance. Ms Rance’s evidence that Mr Powell demanded that Mr Suzara be removed from theatre, is accepted.

[44] Mr Suzara’s evidence was that he had set up the traction table that he believed Mr Powell had requested and that it was the correct one. It was denied by Mr Suzara that no equipment had been set up at the time that Mr Powell arrived. Rather, it was said to have been the wrong one.

[45] There is no evidence before the Commission, except from Mr Suzara, about what equipment was in the theatre when Mr Powell arrived. It was Mr Suzara’s evidence that he had set up the equipment that he believed was correct and what Mr Powell wanted.

[46] The allegation states that the theatre was “underprepared”, that Mr Suzara had failed to follow Mr Powell’s, instructions that the theatre was not ready and the required equipment was not ready. Having considered the evidence before me, I find that Mr Suzara did not follow Mr Powell’s instructions regarding the equipment he required for that day. This was because Mr Suzara had set up the theatre incorrectly and not in accordance with Mr Powell’s instructions. Further, I find that the theatre was not ready when Mr Powell arrived as the required (correct) equipment was not in theatre. This had resulted in a delay in surgery of approximately one hour. Mr Suzara’s evidence was that it was an inadvertent mistake and a result of miscommunication because he was unaware of the old traction table. That may be so but, as a matter of fact, the theatre was not set up with the equipment that had been earlier specified by Mr Powell, when Mr Powell arrived in theatre. It was also Mr Suzara’s evidence that he was an experienced orthopaedic theatre technician.

3. Mr Suzara’s dishonesty

[47] Mr Suzara, Ms Rance, Ms Morina and Mr Sabatini gave evidence in relation to this reason.

Submissions

Applicant

[48] It was submitted by the Applicant that Mr Suzara’s absence from work was for a legitimate reason as Mr Suzara had provided a medical certificate to the Hospital. The Applicant argued that the employer generally does not have a right to regulate what an employee does outside of work and that Mr Suzara was under no obligation to give details for his absence when he was absent on the basis of a valid medical certificate. The fact that Mr Suzara travelled whilst on sick leave, did not mean that the sick leave was in any way fraudulently or wrongly granted. It was stated that some periods of sick leave can be known about in advance. 101

[49] The Commission was referred to the decision by VP Hatcher in Keenan v Leighton Boral Amey NSW Pty Ltd (Keenan) 102 together with a number of other authorities in support of the Applicant’s submissions.

St Vincent’s

[50] The Hospital stated that Mr Suzara had admitted that he had travelled to the Philippines during the period of personal leave. St Vincent’s also said that it was now known that Mr Suzara had booked the overseas travel about a month before notifying St Vincent’s of his personal leave. 103

[51] It was submitted by the Respondent that the grounds on which it relied in relation to the dishonesty reason were:

•  Mr Suzara was dishonest when he advised the Hospital that he did not travel to the Philippines during his personal leave.

•  Mr Suzara was dishonest when he communicated about his personal injury that necessitated he take personal leave.

•  Mr Suzara was dishonest when he sought medical treatment from his treating doctor in order to obtain a personal leave certificate when Mr Suzara knew that he had pre-arranged travel to the Philippines. 104

[52] It was submitted by St Vincent’s that the Applicant had been dishonest with regard to his absence from the workplace. This occurred the following day, 23 March 2018, when the Applicant had called in sick. It was submitted that the Applicant had spoken with Ms Rance and said that he had injured his knee when playing basketball the prior evening. When asked if he was OK and seeking medical advice, Mr Suzara responded that he had hurt his knee when he ‘went for a run’. 105

[53] Later that morning, it was stated by the Hospital that Mr Suzara sent an email to Ms Rance stating that he had seen a GP and then forwarded a medical certificate. That certificate stated that it had been completed on 21 March 2018, the day prior to the incident involving Mr Powell. The certificate stated that the Applicant would be unfit for duty from 23 March 2018 until 3 April 2018. St Vincent’s contended that it was remarkable that the certificate stated that the Applicant would be unfit when he had attended work on 22 March 2018. 106

[54] Following receipt of this email and certificate, it was stated to have been Ms Rance’s evidence that she had telephoned Mr Suzara to inquire about the seriousness of the injury. The Applicant said that he required an ultrasound and x-ray the following week. Ms Rance also queried the date of the certificate and was told by Mr Suzara that it had been completed “just now”. The Respondent submitted that this was dishonesty on Mr Suzara’s part as the Applicant’s period of personal leave was from 23 March 2018 until 3 April 2018. 107

[55] St Vincent’s recounted that, on 5 April 2018, Mr Sabatini had informed Ms Rance that he had heard that Mr Suzara had been in the Phillipines during the above period of personal leave. On the following day, Ms Rance and Mr Matulin spoke with Mr Suzara and asked if the report that he had visited the Phillipines was true which the Applicant denied. It was submitted by the Hospital that Mr Suzara was thereby dishonest with his employer. 108

[56] The Commission was referred to the decision in Streeter v Telstra Corporation Limited (Streeter) 109 amongst other authorities by the Hospital in support of its submissions in relation to this issue.

Considerations and conclusions

[57] This reason for Mr Suzara’s dismissal concerned Mr Suzara’s dishonesty with St Vincent’s in relation to the information that Mr Suzara gave to the Hospital surrounding his absence from work due to a personal injury.

[58] Mr Suzara took a period of personal leave from 23 March 2018 until 3 April 2018. Mr Suzara had emailed a medical certificate to St Vincent’s, dated 21 March 2018, which stated that Mr Suzara was receiving medical treatment from 23 March 2018 to 3 April 2018 inclusive. At the request of the Commission, Mr Suzara provided a Passenger Itinerary/receipt 110 which showed that Mr Suzara travelled to the Philippines on 23 March 2018 and returned on 2 April 2018. The itinerary was issued on 19 February 2018.

[59] With respect to the Respondent’s grounds for the dishonesty reason, I find that:

•  Mr Suzara travelled to the Philippines on 23 March 2018 and returned on 2 April 2018. Mr Suzara provided St Vincent’s with a medical certificate stating that he was unfit for work from 23 March 2018 to 3 April 2018 inclusive.

•  On 6 April 2018, when asked by Ms Rance and Ms Morina if he had gone to the Philippines during the period of personal leave, Mr Suzara had denied that he had done so. It is noted that, during cross-examination, Mr Suzara had confirmed that he had travelled to the Philippines in March/April 2018.

•  Also at the meeting on 6 April 2018, he had advised the Hospital that he had needed personal leave due to a knee injury. Mr Suzara said that the reason he had told St Vincent’s that he needed personal leave for a knee injury was because he was travelling to the Philippines for a personal reason which he was not comfortable to disclose to the Hospital. It was Mr Suzara’s evidence that he had ended up telling Ms Rance and Ms Morina the personal reason and that he was embarrassed to tell them.

•  With respect to the content of the conversation between Mr Suzara and his doctor on 21 March 2018, which resulted in the medical certificate that he provided St Vincent’s, there is no direct evidence before the Commission in relation to what was said in the doctor’s surgery by Mr Suzara. Therefore, the Commission is unable to make a finding in relation to this matter.

[60] Therefore, I find that Mr Suzara was dishonest with his employer when he denied having gone to the Philippines, during the meeting on 6 April 2018. I also find that Mr Suzara was dishonest when he had communicated to the Hospital that the reason for needing to take personal leave was because of his knee injury. If Mr Suzara needed to go to the Philippines for a reason unrelated to personal illness or injury, it would be expected that Mr Suzara would have taken annual leave and not personal leave. It is acknowledged that Mr Suzara was not required to provide reasons for the personal leave in addition to what was contained in the medical certificate. However, it seems that Mr Suzara volunteered the information regarding his knee injury to Ms Rance.

4. Mr Suzara’s previous conduct and performance

Submissions

Applicant

[61] It was argued by Mr Suzara that, including the third reason for the dismissal in the letter of termination, was procedurally unfair. This was on the basis that, if it had been raised with Mr Suzara, the Applicant could have put an argument that the warning specifically related to a breach of a new policy and that there had been no repeat breach. 111 Therefore, it was contended that this warning did not provide any justification for the dismissal.112

Respondent

[62] St Vincent’s submitted that the dismissal was proportionate to Mr Suzara’s disciplinary history of poor performance and conduct. This history was said to include the provision of 3 written warnings and 15 separate occasions on which Mr Suzara was counselled in respect of his conduct and performance - over a period of less than 2 years. 113

[63] Further, it was contended that Mr Suzara did not show insight into his performance and conduct and did not take further concerns of the Hospital seriously. This was said to have been evidenced by the frequency and often repeated message that needed to be conveyed to Mr Suzara. In addition, it was stated that Mr Suzara was often evasive when communicating with the Hospital in relation to his performance and conduct. This was said to have been demonstrated by Mr Suzara changing his response after further questioning from the Hospital. 114

Considerations and conclusions

[64] Mr Suzara and Ms Rance provided the majority of the evidence in relation to this consideration in the Hospital’s decision to terminate Mr Suzara’s employment. Ms Suzara’s factual disciplinary history has already been set out in paragraph [5]. During Mr Suzara’s evidence about the various disciplinary issues, Mr Suzara either did not recall the incident/resultant conversation with Ms Rance (in particular) or gave inconsistent evidence or long answers which did not really answer the question.

[65] Mr Suzara’s disciplinary history started in June 2016 when issues were raised with Mr Suzara and he was verbally counselled. Mr Suzara received his first formal warning in December 2016. In September 2017, Mr Suzara was given a second written warning for inappropriate conduct was a colleague including victimisation, breach of confidentiality and failing to listen to feedback regarding his behaviour. On 15 December 2017 Mr Suzara received a third and final formal written warning for using his mobile phone during theatre sessions. In the period between the second written warning (September 2017) and the date of Mr Suzara’s dismissal, in addition to being given a third and final written warning, there were also discussions between management and Mr Suzara about 7 other issues.

[66] Therefore, I find that Mr Suzara had been formally warned in relation to his conduct on three occasions between December 2016 and December 2017 and that there were other instances when management had cause to raise with Mr Suzara issues in relation to his conduct and also his work performance.

Was there a valid reason for the dismissal?

[67] Bringing all of the above findings of fact together, it has been found that:

•  Mr Suzara yelled at Mr Mouawad (in the corridor) and threatened to report Mr Mouawad to Mr Sabatini, on 19 April 2018.

•  On the balance of probability, it is probable that Mr Suzara did harass Mr Mouawad – with respect to the length of his tea break and also that Mr Suzara bossed Mr Mouawad around and told him what to do.

•  On 22 March 2018, Mr Suzara did not follow Mr Powell’s instructions regarding the equipment he required for that day.

•  The theatre was not ready when Mr Powell arrived as the required (correct) equipment had not been set up by Mr Suzara in theatre. This had resulted in a delay in surgery of approximately one hour.

•  Mr Suzara was dishonest with his employer when he denied having gone to the Philippines, during the meeting on 6 April 2018.

•  Mr Suzara was dishonest when he had voluntarily communicated to the Hospital that the reason for needing to take personal leave was because of his knee injury.

•  Mr Suzara had been formally warned in relation to his conduct on three occasions between December 2016 and December 2017 together with other instances when management had cause to raise with Mr Suzara issues in relation to his conduct and also his work performance.

[68] Taking all of the findings into account and having weighed up all of the evidence, I find that there was a valid reason for Mr Suzara’s dismissal. This is because Mr Suzara’s conduct towards Mr Mouawad and Mr Suzara’s failure to follow the surgeon’s instructions about the equipment set up for theatre, together with Mr Suzara’s dishonesty with his employer, amount to serious and unacceptable behaviour by Mr Suzara. This is also in the context that the formal warnings concerned unacceptable conduct by Mr Suzara as well (the warnings were in relation to his victimising behaviour towards a colleague (second) and for use of his mobile phone in theatre (third and final).

Section 387(b) – notified of the reason

[69] Mr Suzara was sent a letter, dated 17 April 2018, setting out two allegations regarding his conduct. Subsequently, Mr Suzara received a letter of termination, dated 26 April 2018, which set out the two allegations together with Mr Suzara’s response. The letter also stated that St Vincent’s had considered all of the relevant information on Mr Suzara’s file including the third and final warning dated 5 December 2017.

[70] It was submitted, on behalf of the Applicant, that the reasons for his dismissal were not put to Mr Suzara in explicit, plain and clear terms. The Applicant argued that the claimed witness to the yelling, in relation to the 19 April 2018 incident, did not appear to have been identified at any stage and that Mr Suzara was not advised of any harassment complaint. The Applicant was also said not to have been informed of the results of the investigation. 115

[71] Further, it was contended that St Vincent’s was fully aware of the various matters in relation to the fourth reason that it now relied upon as a valid reason to dismiss Mr Suzara but chose, when dismissing Mr Suzara, not to rely on these matters. Therefore, as Mr Suzara was not notified of these matters, Mr Suzara was not given an opportunity to respond to them. 116

[72] With respect to the Respondent’s reliance on Mr Suzara’s personnel file in making the decision to dismiss Mr Suzara, it was argued that Mr Suzara’s personnel file was not provided to Mr Suzara and neither to the Commission. In addition, it was stated that the only other relevant matter was the December 2017 warning regarding the phone policy breach. 117

[73] On the other hand, it was submitted by St Vincent’s that, except for the matter of his dishonest conduct, Mr Suzara was notified of the reasons for his dismissal. The Hospital stated that the allegations were given to Mr Suzara, before the decision was made, in the letter of 17 April 2018. It was recalled that, during the meeting with Mr Suzara on 19 April 2018, Mr Suzara was again advised of the reasons for St Vincent’s concerns. 118

[74] The Respondent also noted that the substance of the dishonest conduct had been put to Mr Suzara such that it was only the specific allegation that particular conduct or statements amounted to dishonesty that was not put to him. It was said, however, that it had been put to Mr Suzara in cross-examination that he had been dishonest. 119

[75] The letter of allegations, dated 17 April 2018, set out two allegations in relation to Mr Suzara’s conduct. The termination letter referred to the two allegations having been substantiated and also that the relevant information on his file, together with the third and final warning, had been considered. Therefore, it is possible to say that Mr Suzara, in effect, was notified of three of the reasons for his dismissal – two of them prior to the decision to dismiss Mr Suzara and one after. The third reason relating to Mr Suzara’s dishonesty was relied on at the hearing. Therefore, I find that Mr Suzara was notified of two of the reasons for his dismissal before the dismissal. However, Mr Suzara was not notified of the third reason (dishonesty) until the hearing and a fourth reason was notified in the letter of dismissal (after Mr Suzara had been dismissed).

Section 387(c) – opportunity to respond

[76] A meeting was held on 19 April 2018 during which the two allegations were discussed and Mr Suzara was able to provide his response.

[77] It was argued by the Applicant that Mr Suzara was not given an adequate opportunity to respond. This was firstly because the allegations regarding dishonesty were not put to Mr Suzara during the meeting. Secondly, it was stated that the dismissal letter only referred to the December 2017 warning and not specifically to other personnel file related matters. 120

[78] On the other hand, it was submitted by St Vincent’s that Mr Suzara had been provided with multiple opportunities to respond to the reasons for his dismissal. These opportunities were said to have been in the form of meetings often preceded by written letters of allegation or during informal meetings and discussions between May 2016 and April 2018. 121

[79] With respect to the valid reason related to Mr Suzara’s dishonesty, notwithstanding that that reason was not relied upon by the Hospital at the time of termination, it was stated that the substance of the matters giving rise to that reason, was clearly put to Mr Suzara. It was stated that Mr Suzara used the opportunity provided and responded to those matters. This factor was said to weigh in favour of St Vincent’s in this case.

[80] It was non contentious that Mr Suzara was given an opportunity to respond to the allegations set out in the letter of 17 April 2018. In terms of whether Mr Suzara was given an opportunity to respond to the dishonesty reason, as this was not put to Mr Suzara in the allegations letter or discussed during the meeting on 19 April 2018, it is not possible for Mr Suzara to have had an opportunity to respond to a reason that was not put to him at the time of his dismissal. It is noted that the Hospital argued that, although this reason had not been raised with Mr Suzara during the dismissal process, the various issues had been raised with Mr Suzara and that Mr Suzara had responded fully to them. That may be the case but, in relation to the question of whether Mr Suzara was given an opportunity to respond to all of the reasons for his dismissal, I find that Mr Suzara was not given an opportunity to respond to the dishonesty reason, prior to his dismissal.

[81] The Applicant also argued that the letter of termination referred to consideration of the relevant information on Mr Suzara’s file, including the third and final warning of 5 December 2017, which was not put to Mr Suzara prior to the meeting on 19 April 2018 nor was it in the allegations letter, dated 17 April 2018. It was stated by St Vincent’s that Mr Suzara’s history of misconduct and poor performance was properly taken into account when considering the other three valid reasons for Mr Suzara’s dismissal. The Applicant contended that Mr Suzara was not afforded an opportunity to respond to this element in St Vincent’s decision-making prior to his dismissal.

[82] It is clear from the evidence of Ms Rance and Ms Morina that only two issues were put to Mr Suzara during the meeting on 19 April 2018. It was Ms Rance’s evidence that, during the break in the meeting when she and Ms Morina discussed Mr Suzara’s responses to the two allegations, that they took account of Mr Suzara’s third and final warning together with Mr Suzara’s lengthy disciplinary history. However, as Mr Suzara’s disciplinary record was not raised with Mr Suzara during the 19 April 2018 meeting, it is not possible to conclude that Mr Suzara was given an opportunity to respond to that consideration (fourth reason).

Section 387(d) – opportunity to have a support person

[83] There was no refusal to allow Mr Suzara to have a support person.

Section 387(e) - unsatisfactory performance?

[84] There were three formal written warnings issued to Mr Suzara but they related to Mr Suzara’s conduct and not to unsatisfactory performance. Various concerns about Mr Suzara’s work performance were raised with him during his employment. However, none of these resulted in a formal warning.

Sections 387(f) and (g) – size of undertaking and absence of dedicated human resources

[85] St Vincent’s is a large employer with dedicated human resources. Ms Morina, Human Resources Consultant had been involved at various points in the disciplinary process in relation to Mr Suzara.

Section 387(h) – any other matters considered relevant

[86] The Applicant argued that Mr Suzara was denied a fair go and that, if there was found to be a valid reason for dismissal, the dismissal was a disproportionate outcome. 122

[87] It was submitted by St Vincent’s that there were other relevant matters. These were:

•  Mr Suzara was given three written warnings in relation to his performance and conduct prior to his dismissal.

•  Mr Suzara participated in a further 15 verbal counselling discussions during his employment with respect to his performance and conduct.

•  Mr Suzara did not show insight into his performance and conduct nor did he take seriously the concerns notified to him. This was said to be evidenced by the frequency and the repetition of message that needed to be conveyed through the warnings and counselling discussions. Mr Suzara was often evasive when communicating with the Hospital, changing his response after further questioning by the Hospital. 123

•  Mr Suzara’s period of employment was quite short (less than five years). 124

Was the dismissal harsh, unjust or unreasonable?

[88] In all of the circumstances of this matter and, having taken account of, and balanced, the matters set out in s.387 of the Act, I determine, on balance, that Mr Suzara’s dismissal was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for the dismissal. On the other hand, procedural defects have been found in relation to Mr Suzara not being notified about all of the reasons for his dismissal and therefore, not having an opportunity to respond to all of the reasons for his dismissal. I have not been persuaded that the procedural defects outweigh the valid reason for Mr Suzara’s dismissal. In finding a valid reason, account has been taken of Mr Suzara’s disciplinary history. Even if the previous 12 months only are taken into account, the history reveals a pattern of behaviour by Mr Suzara that mitigates against a finding that the dismissal was disproportionate or that it was harsh, unjust or unreasonable.

[89] Accordingly, Mr Suzara’s application is dismissed. An order 125 to this effect will be issued separately.

Appearances:

G Dircks of Just Relations - Consultants for the Applicant

J Tracey of Counsel for the Respondent

Hearing details:

2018.

Melbourne:

September 17, 18.

Final written submissions:

Applicant, 11 October 2018

Respondent, 25 October 2018

Applicant, 5 November 2018

Printed by authority of the Commonwealth Government Printer

<PR703664>

 1   Exhibit A2 at Attachment WS2

 2   Respondent’s Closing Submissions, dated 25 October 2018, at paragraph 6 and Exhibit R1 at paragraphs 9 and 11

 3   Exhibit R1 at paragraph 11

 4   Exhibit A2 at Attachment WS3

 5   Exhibit A2

 6   Exhibit A2 at paragraphs 6, 17 and 62 and Transcript PN 132 – 133

 7   Transcript PN 134 – 135

 8   Ibid PN 137

 9   Ibid PN 138

 10   Exhibit A2 at paragraph 62

 11   Transcript PN 139 – 140

 12   Ibid PN 140

 13   Ibid PN 141

 14   Exhibit A2 paragraphs 8 – 12

 15   Ibid at paragraphs 13 – 15

 16   Ibid at paragraphs 15 – 16

 17   Ibid paragraph 17

 18   Exhibit R7

 19   Ibid at paragraph 4 and Transcript PN 1699

 20   Ibid at paragraph 5

 21   Ibid and Transcript PN 1705 – 1721 and 1731 – 1733

 22   Ibid and Transcript PN 1731

 23   Ibid and Transcript PN 1731

 24   Ibid at paragraph 5 and Attachment SM1 and Transcript PN 1725 – 1730 and 1734 – 1735

 25   Transcript PN 1736 – 1737

 26   Ibid PN 1738

 27   Exhibit R7 paragraph 6

 28   Transcript PN 1750

 29   Ibid PN and Exhibit R7 at paragraph 6

 30   Exhibit R7 at paragraph 6

 31   Ibid at paragraph 7 and Transcript PN 1741 – 1743

 32   Ibid at paragraph 7

 33   Ibid

 34   Transcript PN 1744

 35   Ibid PN 1745 – 1746

 36   Exhibit R7 at paragraph 7

 37   Ibid at paragraph 8

 38   Ibid at paragraphs 9 – 10 and Attachment SM1

 39   Exhibit R6

 40   Exhibit R6 at paragraphs 3 – 5

 41   Ibid at paragraph 5

 42   Ibid at paragraph 6

 43   Ibid

 44   Ibid

 45   ibid at paragraph 7

 46   Ibid at paragraphs 7 – 8

 47   Ibid at paragraph 7

 48   Ibid at paragraph 9

 49   Ibid

 50   Ibid at paragraph 10

 51   Exhibit R4

 52   Ibid at paragraph 5

 53   Ibid

 54   Ibid

 55   Ibid at paragraph 7

 56   Ibid at paragraph 8

 57   Transcript PN 1390 – 1391

 58   Ibid PN 1392

 59   Ibid PN 1394 – 1395

 60   Ibid PN 1396

 61   Transcript PN 1400

 62   Applicant’s Closing Submissions, dated 11 October 2018, at paragraphs 10 – 11

 63   Ibid at paragraphs 13 – 14

 64   Ibid at paragraphs 18 – 19

 65   Ibid at paragraphs 14 – 45 and Exhibit A1 at paragraphs 19 – 23

 66   Respondent’s Closing Submissions, dated 25 October 2018, at paragraphs 5, 7 and 15 – 48

 67   Ibid at paragraphs 69 – 71 and Exhibit R1 at paragraphs 6(a) and 9(a)

 68   Transcript PN 937

 69   Ibid PN 939 and Exhibit A2 at paragraph 20

 70   Ibid PN 940 – 942 and ibid at paragraphs 21 – 22 and 51

 71   Ibid PN 943 – 945 and ibid at paragraphs 23 – 20

 72   Ibid PN 946 and ibid at paragraphs 28 – 30

 73   Exhibit A2 at paragraphs 31 – 35

 74   Ibid at paragraphs 36 – 39 and Transcript PN 947 – 948

 75   Ibid at paragraph 50 and ibid PN 950 – 951

 76   Transcript PN 952

 77   Exhibit A2 at paragraph 51

 78   Ibid

 79   Ibid at paragraphs 41 – 46

 80   Exhibit R5

 81   Ibid at paragraph 3 and Transcript PN 1626

 82   Transcript PN 1626 – 1629

 83   Ibid PN 1630 – 1631 and Exhibit R5 at paragraph 5

 84   Ibid PN 1632 – 1634 and ibid at paragraph 6

 85   Exhibit R5 at paragraph 7

 86   Ibid

 87   Ibid at paragraph 9 and Transcript PN 1642 – 1644

 88   Ibid at paragraph 10

 89   Ibid at paragraph 11 and Transcript PN 1645

 90   Ibid at paragraph 11

 91   Transcript PN 1635 – 1636

 92   Ibid PN 1637 – 1638

 93   Exhibit R5 at paragraph 7

 94   Exhibit R3 at paragraph 63 and Transcript PN 1516

 95   Ibid paragraph 63

 96   Applicant’s Closing Submissions, dated 11 October 2018, at paragraph 46

 97   Ibid at paragraphs 47 – 48 and Exhibit A1 at paragraphs 11 – 18

 98   Ibid at paragraphs 49 – 61

 99   Ibid at paragraphs 62 – 74

 100   Exhibit R1 at paragraphs 6(b), 9(b) and 11(b) and Respondent’s Closing Submissions, dated 5 November 2018, at paragraphs 50 – 55

 101   Applicant’s Closing Submissions, dated 11 October 2018, at paragraphs 87 – 110

 102   [2015] FWC 3156, Applicant’s Closing Submissions, dated 11 October 2018, at paragraph 98 and Applicant’s Response to Respondent’s Closing Submissions, dated 5 November 2018, at paragraph 77

 103   Respondent’s Closing Submissions, dated 25 October 2018, at paragraph 76 – 79 and Exhibit R1 at paragraphs 9 and 11

 104   Exhibit R1 at paragraph 9

 105   Respondent’s Closing Submissions, dated 25 October 2018, at paragraph 56

 106   Ibid at paragraphs 57 – 59

 107   Ibid at paragraphs 60 and 65

 108   Ibid at paragraph 66 and Exhibit R1 at paragraph 9(c) and 11(c)

 109   [2008] AIRCFB 15

 110   Exhibit A4

 111   Applicant’s Closing Submissions, dated 11 October 2018, at paragraphs 76 – 84

 112   Ibid at paragraph 85 and Exhibit A1 at paragraph 9

 113   Respondent’s Closing Submissions, dated 25 October 2018, at paragraphs 5 – 7 and Exhibit R1 at paragraph 31

 114   Exhibit R1 paragraph 31

 115   Exhibit A1 at paragraphs 35 – 40

 116   Applicant’s Response to Respondent’s Closing Submissions, dated 5 November 2018, at paragraphs 64 – 67

 117   Ibid at paragraphs 68 – 69

 118   Exhibit R1 at paragraphs 13 – 17 and Respondent’s Closing Submissions, dated 25 October 2018, at paragraph 80

 119   Respondent’s Closing Submissions, dated 25 October 2018, at paragraph 80

 120   Applicant’s Response to Respondent’s Closing Submissions, dated 5 November 2018, at paragraphs 64 – 67 and 68 – 69 and Exhibit A1 at paragraphs 41 – 42

 121   Respondent’s Closing Submissions, dated 25 October 2018, at paragraphs 82 – 83 and Exhibit R1 at paragraphs 18 – 19

 122   Exhibit A1 at paragraphs 50 – 55

 123   Exhibit R1 at paragraphs 30 – 31

 124   Respondent’s Closing Submissions, dated 25 October 2018, at paragraphs 87 – 88

 125   PR703668