Fair Work Act 2009
s.394—Unfair dismissal

Bradley Sheldrick
v
Hazeldene’s Chicken Farm Pty Ltd
(U2014/5381)

Application for relief from unfair dismissal.

[1] Mr Bradley Sheldrick was employed by Hazeldene’s Chicken Farm Pty Ltd (Hazeldene) as an IT Systems Developer until his employment was terminated with effect from 21 February 2014.

Background

[2] The continuation of Mr Sheldrick’s employment was not an issue until he did not respond to phones calls and text messages left for him by Mr Adam Hazeldene, the Technical Services Manager, whilst Mr Sheldrick was on annual leave from 4 November 2013 to 1 December 2013.

[3] Upon his return from annual leave, Mr Hazeldene spoke to Mr Sheldrick about this and told him it had been disrespectful not to return his calls. 1 Mr Sheldrick replied that it was disrespectful of Mr Hazeldene to call him about non urgent matters whilst he was on annual leave.2 When cross examined about why he had not responded to the messages, Mr Sheldrick said that there was no indication in the messages that the matter was urgent.3

[4] Mr Hazeldene gave evidence that he needed to obtain some specific information from Mr Sheldrick for the launch of a series of products for a major customer. 4 There is no evidence that Mr Hazeldene explained in any messages left for Mr Sheldrick the urgency of his requests. For example, on 8 November 2013, Mr Hazeldene left a message for Mr Sheldrick in the following terms, “[c]an you give me a call when you have a minute.”5

[5] However when Mr Hazeldene sent specific messages on 4 and 5 November 2013, Mr Sheldrick responded the same day.

[6] Mr Hazeldene asked Ms Jo Johnson, who was then an employee of Hazeldene, to contact Mr Sheldrick and to ask him, amongst other things, to call Mr Hazeldene. It was Ms Johnson’s evidence that she passed on this message to Mr Sheldrick. Ms Johnson said that Mr Sheldrick responded to her by acknowledging that he had received the messages but that he didn’t feel that it was necessary for him to respond because the messages were not urgent as no detail had been left. 6 Mr Sheldrick also said “I am on annual leave. This is the first time I’ve actually been able to take some leave to do some things for myself.”7

[7] Mr Hazeldene said that Ms Johnson told him that Mr Sheldrick told her “who the f**k does he think he is.” 8 Ms Johnson denied saying this to Mr Hazeldene and denied that Mr Sheldrick made the comment.9 Mr Sheldrick denied making the comment.10

[8] Hazeldene indicated that it wished to bring another witness to confirm that Mr Sheldrick made this comment. 11 It was submitted that the evidence was relevant to the credibility of Ms Johnson.12 Apart from the evidence about the phone call Ms Johnson’s evidence went to what occurred at the meeting on 17 February 2014. Ms Johnson was Mr Sheldrick’s support person at the meeting and took detailed notes which were attached to her statement. She was not cross examined on the accuracy of those notes.

[9] No explanation was given about why the proposed witness had not provided a witness statement in accordance with the directions. In any event the evidence would have been hearsay and Mr Sheldrick gave direct evidence denying the statement. Further Mr Sheldrick’s employment was not terminated for making this statement. I did not permit the calling of a further witness.

[10] Mr Sheldrick’s employment contract made no reference to being on-call. Clause 28 of the contract provided that he could be required to perform additional hours on any day including weekends and public holidays necessary to meet their operational requirements. It made it clear that flexibility in regards to working hours was required to meet the day to day operational requirements and that his remuneration compensated him for all hours worked including additional hours or overtime.

[11] Mr Sheldrick said that being on-call was not mentioned to him during contract negotiations but, after he commenced work, he was asked to put his personal mobile phone number on a contact list and he was then contacted after he left work to deal with emergencies. If called, he would try and deal with the issue on the phone or if necessary use remote access to deal with the problem. 13

[12] Mr Hazeldene discussed Mr Sheldrick’s refusal to take the calls with Ms Johnson and she advised him that it was not clear from Mr Sheldrick’s contract that he could be required to take phone calls whilst he was on annual leave. 14

The proposed changes

[13] On 9 December 2013, Mr Hazeldene sent an email to all IT staff proposing a variation to their contracts. 15 The proposal varied the requirement to work additional hours to make it clear that employees could be required to work 1,976 ordinary hours with an additional 364 hours for which no additional payment would be made. If hours were worked in excess of 2,340 employees would be entitled to time in lieu.

[14] The proposal further included an on-call roster which would require an employee to be the designated on-call out of hours contact for 13 weeks a year for which the employee would be paid $77 per week. There were other details set out about time in lieu and appropriate breaks if an employee is required to perform work.

[15] Mr Sheldrick responded to this email and advised that he considered the change to the hours of work clause to be a significant change and should be dealt with separately to the on-call issue. In relation to the on-call proposal Mr Sheldrick made a counter proposal about how such an on-call roster should be remunerated.

[16] Mr Hazeldene did not provide an email response to Mr Sheldrick but he referred Mr Sheldrick’s email to Ms Pauline Grima, a member of the Human Resources team. Mr Hazeldene advised Mr Sheldrick of this. 16 Ms Grima, who commenced employment on 9 December 2013, was tasked with developing an on-call procedure. She prepared a revised contract of employment which developed Mr Hazeldene’s original proposal.17

The meetings

[17] On 5 February 2014, Mr Sheldrick met with Ms Grima, Mr Hazeldene and Ms Conway to discuss the proposed changes. Mr Sheldrick made a record of what he recalled was said at the meeting later that night. 18 No other notes taken at the meeting were tendered.

[18] Mr Sheldrick said that he asked if the proposal was negotiable and was told no. 19 He said he would not sign the proposed new contract. He accepted that he was visibly shaken and angry but said he remained calm. He said he was told that he did not have to sign the contract. He told them that he would no longer answer his phone to afterhours support calls as he was not required to do so under his current contract.20

[19] He said that Ms Grima said that responding to calls was covered by his existing contract. Mr Sheldrick replied that if that was the case why were they proposing to change the contract and he was told that the contracts were being standardised. 21

[20] Mr Sheldrick and Ms Grima continued to disagree about the rights and obligations flowing from Mr Sheldrick’s contract. The meeting did not resolve the dispute.

[21] Mr Hazeldene was present at the meeting but did not give any evidence contradicting Mr Sheldrick’s recollection of the meeting.

[22] Apart from saying that Mr Sheldrick was aggressive and hostile at the meeting, Ms Grima’s evidence did not contradict Mr Sheldrick’s recollection of the meeting.

[23] A second meeting was held on 17 February 2014. Ms Johnson was the only additional person present at this meeting and she kept detailed notes of the meeting. 22 Ms Johnson was not cross examined on the accuracy of the notes. I am prepared to accept that Ms Johnson’s notes are an accurate record of the meeting. No other contemporaneous notes were produced and no real challenge to their accuracy was made.

[24] At that meeting Mr Sheldrick made it clear that he had no interest in signing the new contract but asked if it was open for negotiations. Ms Grima pointed out that the only changes were to the hours of work clause and the on-call provisions. Mr Sheldrick pointed out that the proposed contract did not provide for annual leave loading and Ms Grima advised him that it was included in his salary. Mr Sheldrick also pointed out that the contract contained a new qualifying period and Ms Grima advised that that would be removed. He asked why the on-call clause was not negotiable and was told that the contract was a standard company contract. Mr Sheldrick asked Ms Grima a range of questions which were not answered as Ms Grima did not consider them relevant to the matters to be discussed.

[25] Ms Grima advised Mr Sheldrick that the on-call/recall was not open to negotiation or interpretation and they would be implementing the roster and he would continue on his original contract. There was further discussion and Ms Grima said to Mr Sheldrick that “we are giving you a reasonable directive. Are you going to participate in the on-call roster. I am going to insist you answer the question, think very carefully.” 23

[26] Mr Sheldrick did not answer the question but asked some further questions. Ms Grima asked him again “are you going to participate in the on-call roster” to which Mr Sheldrick replied that he did not “have all the information to answer at [the] time.” 24 Ms Grima then advised Mr Sheldrick that he was being stood down on full pay and he would be issued with a letter and a further meeting would take place on 19 February 2014.

[27] Mr Hazeldene said that Mr Sheldrick was extremely aggressive towards Ms Grima and continually asked her questions rather than responded to the issues they were trying to raise. 25 Mr Hazeldene said that given his manner and his refusal to undertake on-call work he was stood down so that he could consider his refusal to comply with his existing contractual arrangements.26

[28] Ms Grima said that at this meeting Mr Sheldrick refused to participate in the on-call arrangement and she advised him that they were issuing him with a reasonable and lawful direction to provide on-call duties. She said he refused to answer. She also said he exhibited aggressive and confrontational behaviour and as a consequence of that and his refusal to participate in the on-call arrangement they decided to stand him down so that he could consider his response. 27 Ms Grima said she stressed the seriousness of the matter though she accepted in cross examination that she never told Mr Sheldrick his employment was at risk.

[29] On 17 February 2014, Mr Sheldrick was given a letter which provides as follows:

“Hazeldene’s confirmed that we believe that the On Call arrangement is a reasonable offer and that it a reasonable expectation of the role. You were advised that on this basis Hazeldene’s intends to proceed to formalise the On Call arrangement.

You were asked whether you would continue to participate in the On Call arrangement. You advised that you did not feel that you could answer this. Accordingly we advised that you would be stood down (on full pay) to provide you with an opportunity to consider this matter.” 28

[30] On 19 February 2014, another meeting was held. At that meeting all the earlier participants except Ms Johnson were present. Mr Sheldrick read a prepared statement to the meeting. In that statement Mr Sheldrick expressed his disappointment at what had occurred. In that statement Mr Sheldrick made the following statement:

“In regards to your question, I will participate in the on-call roster, but I would appreciate Hazeldenes show some respect to me, a valued member of staff, by opening up the on-call clause to negotiation.”

[31] Mr Hazeldene agreed that Mr Sheldrick said this at the meeting. 29

[32] Despite Mr Sheldrick making that statement, Mr Hazeldene said he was “extremely concerned at the manner in which Mr Sheldrick was acting and that he was not prepared to be treated in the same manner as all the other staff employed in the on-call arrangements.” 30 He considered that to treat Mr Sheldrick differently would cause disharmony. He decided that there was no option but to terminate Mr Sheldrick’s employment.31 He said that “the employment relationship had irretrievably broken down and was not recoverable.”32 Ms Grima recalled that Mr Sheldrick read out a statement at the meeting but she could not recall the statement.33

[33] Given Mr Sheldrick was not cross examined on this statement and Mr Hazeldene agreed that was what he read out, I find that at the meeting Mr Sheldrick did make the statement that he would participate in the on-call roster.

[34] However, Ms Grima took from Mr Sheldrick’s request for further negotiation on the terms of his contract that he was only prepared to participate in the on-call roster if his terms were agreed to. 34

[35] Mr Hazeldene and Ms Grima then attempted to negotiate Mr Sheldrick’s departure from the business. 35

[36] On 21 February 2014, Mr Sheldrick was informed that his employment was terminated and he was paid in lieu of notice. 36

Was the termination of employment harsh, unjust or unreasonable?

[37] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

Whether there was a valid reason for the dismissal related to Mr Sheldrick’s capacity or conduct (including its effect on the safety and welfare of other employees: s.387(a)

[38] Hazeldene rely upon Mr Sheldrick’s refusal to follow a lawful direction to undertake on-call duties and his aggressive and confrontational manner to support its contention that there was a valid reason for the termination of Mr Sheldrick’s employment. Hazeldene submitted that it had lost trust and confidence in Mr Sheldrick and that the employment relationship had broken down. 37

[39] Mr Sheldrick denied that he had refused to comply with a lawful direction or that he was aggressive and confrontational.

[40] I find that Mr Sheldrick advised his employer on 19 February 2014 that he would participate in the on-call roster. I do not accept the conclusions of Mr Hazeldene and Ms Grima that Mr Sheldrick had refused a reasonable and lawful direction. Mr Sheldrick could not be compelled to vary the terms of his contract of employment. He could not be compelled to participate in what was called the “on-call arrangements” which was the proposal set out in the proposed variation to Mr Sheldrick’s employment contract.

[41] There is a significant difference between being required to “work such hours as may be reasonably necessary” and being required to be on an on-call roster. In any event the contract proposed by Hazeldene’s went significantly beyond codifying Mr Sheldrick’s existing terms and conditions. It significantly changed his hours of work, removed the annual leave loading and required him to participate in an on-call roster. The direction to agree to these terms was not a lawful or even reasonable direction. Mr Sheldrick could not be compelled to agree to contractual terms simply because other employees agreed to those terms. What Mr Sheldrick could be compelled to do was to comply with his existing contract of employment. He could be required to work reasonable additional hours.

[42] In the meeting held on 5 February 2014, Mr Sheldrick did advise his employer that he would not answer his private phone to afterhours support calls. However this was in the context of a discussion about a proposed on-call roster.

[43] In the meeting on 17 February 2014, Ms Grima repeatedly asked Mr Sheldrick if he would participate in the on-call roster. He was not asked if he agreed to comply with his existing contract and work reasonable additional hours. In these circumstances it was reasonable for him to advise Ms Grima that he did not have all the information to answer the question.

[44] I accept Mr Sheldrick’s evidence that he was angry at the meeting on 5 February 2014 but I do not accept the evidence of Ms Grima or Mr Hazeldene that Mr Sheldrick was aggressive. Ms Grima had an incomplete memory of that meeting - at most she said that Mr Sheldrick raised his voice. Mr Hazeldene agreed that Mr Sheldrick raised his voice and found his body language was threatening.

[45] At the meeting on 17 February 2014, Mr Hazeldene and Ms Grima gave evidence that Mr Sheldrick was extremely aggressive towards Ms Grima. In cross examination, Ms Grima described Mr Sheldrick as raising his voice and being animated. 38 Ms Johnson gave evidence that while Mr Sheldrick was direct and sought answers to his questions, she did not accept that he was acting aggressively or was confrontational.39 It was her evidence that Ms Grima had a similar style and in that she was “quite upfront”. She described Ms Grima’s style at times as “confrontational and quite direct and harsh.”40 There was no evidence about Mr Sheldrick’s conduct at the meeting on 19 February 2014.

[46] I accept Ms Grima’s evidence that the meetings on 5 and 17 February 2014 were difficult meetings. I accept that Mr Sheldrick was upset and angry about what was happening. I do not accept that Mr Sheldrick’s behaviour at either of these meetings would have provided his employer with a valid reason to terminate his employment.

[47] Unfortunately the meetings escalated the dispute rather than resolved the dispute. Instead of focusing on the issue at hand Hazeldene, presumably because of the advice that it may not have been able to require Mr Sheldrick perform work whilst on annual leave, sought to compel Mr Sheldrick to agree to vary his contract of employment.

[48] The circumstances of those meetings were created by Hazeldene. It was Hazeldene which conflated a dispute about Mr Sheldrick not taking calls whilst on annual leave with a dispute about a contract variation. Mr Sheldrick was entitled to ask questions about the proposed variation and to attempt to negotiate a different variation. That Mr Sheldrick strongly resisted a change to his terms and conditions is not evidence of a breakdown in the employment relationship.

[49] After being stood down and being given an opportunity to consider his position Mr Sheldrick clearly advised Hazeldene that he was willing to be on-call. That he asked for continued negotiation about the proposed variation to his contract is not evidence of a refusal to comply with his existing obligations or of a break down in the employment relationship.

[50] I therefore find that there was no valid reason for the termination of Mr Sheldrick’s employment.

Whether Mr Sheldrick was notified of the reason: s.387(b)

[51] As I have found that there was not a valid reason for the termination of his employment Mr Sheldrick could not have been notified of that reason. 41

[52] Mr Sheldrick was not told of all the reasons for his dismissal prior to the dismissal. The reasons relied upon by Hazeldene related to both his refusal to agree to the on-call arrangement and his conduct at the meetings. In the letter dated 17 February 2014 there is no mention of Mr Sheldrick’s conduct at the meetings. There was no reference to his conduct in the letter of termination letter or in the meetings of 5, 17 or 19 February 2014.

[53] To the extent that Hazeldene relied upon his refusal to participate in the on-call arrangements he was notified of this in the letter dated 17 February 2014.

Whether Mr Sheldrick was given an opportunity to respond to any reason related to the capacity or conduct of the person: s.387(c)

[54] As I have found that Mr Sheldrick was not notified of all the reasons for the termination of his employment, in particular his conduct at the meetings, he was not provided with an opportunity to respond. To the extent that the reason related to his refusal to participate in the on-call arrangement he was provided with an opportunity to respond.

Any unreasonable refusal by the employer to allow Mr Sheldrick to have a support person present to assist at any discussions relating to dismissal: s.387(d)

[55] Hazeldine did not refuse to permit Mr Sheldrick to have a support person present.

If the dismissal related to unsatisfactory performance—whether Mr Sheldrick had been warned about that unsatisfactory performance before the dismissal: s387(e)

[56] Hazeldene submitted that Mr Sheldrick was told that if he refused to perform on-call duties this would be a refusal to follow a lawful direction and he was aware that Hazeldene treated this seriously. Mr Sheldrick did not refuse to comply with his contract of employment. To the extent that he was directed to comply with Hazeldene’s on-call proposal I have found that this was not a reasonable direction. There is no evidence that after Mr Sheldrick returned from annual leave that he refused to perform his contract of employment. If this dismissal is related to unsatisfactory performance Mr Sheldrick was not told that his employment could be terminated.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(f)

[57] No submissions were made about the size of the business. This is a neutral consideration.

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: s.387(g)

[58] Hazeldene have dedicated human resources specialists and therefore this is a neutral consideration.

Any other matters that the Fair Work Commission considers relevant: s.387(h)

[59] Hazeldene submitted that I should have regard to Mr Sheldrick’s refusal to answer Mr Hazeldene’s calls when he was on annual leave as well as his comment to Ms Johnson when she made inquiries on Mr Hazeldene’s behalf.

[60] Hazeldene also submitted that I should have regard to his unreasonable refusal to accept the variation to his contract as well as allegations that after his employment he accessed their computer system.

[61] Employees are entitled to annual leave without interruption. Mr Sheldrick could be required to work reasonable additional hours but I am unable to conclude that Mr Sheldrick was required to perform work during his annual leave. On the evidence before me in light of Mr Sheldrick and Ms Johnson’s direct evidence I am unable to conclude that Mr Sheldrick made the comments reported by Mr Hazeldene.

[62] Given my findings that Mr Sheldrick could not be compelled to vary his contract of employment I do not agree that he was unreasonable in refusing to agree to the on-call arrangements. Whilst I accept that Hazeldene was proposing to recompense Mr Sheldrick for being on call and for performing recall work there is a significant difference between being willing to take occasional phone calls whilst off duty and being required to stand by ready to be recalled to work. The former informal arrangement would not prevent an employee from undertaking activities that meant he or she could not respond to the calls. The proposal required Mr Sheldrick to agree to being rostered in seven day periods for 17.5 times per year. So for 1/3 of the year Mr Sheldrick would have to hold himself ready to be recalled to work.

[63] I do not accept that Mr Sheldrick was belligerent. I accept that he may have raised his voice but there was no suggestion that he yelled or was abusive. These discussions were difficult but Mr Sheldrick was entitled to hold his ground. He was entitled to ask questions.

[64] Mr Hazeldene gave evidence that Mr Sheldrick had accessed the computer system after the termination of his employment. Mr Sheldrick advised by correspondence to Hazeldene’s lawyers that he had done so to check that his access rights had properly been disabled. He denied tampering with the system or downloading any material. I accept that there are circumstances where post employment conduct is relevant in unfair dismissal matters, but no submissions were made about how this conduct is relevant to my decision about whether the termination was harsh, unjust or unreasonable.

Conclusion

[65] There was no valid reason for the termination of Mr Sheldrick’s employment. He was also denied procedural fairness as he was not told all the reasons for the termination of his employment prior to the decision being taken. This is not a situation where the circumstances of the business weighs against a finding that the dismissal was unfair. I find therefore that the termination of his employment was harsh, unjust and unreasonable.

Remedy

[66] Mr Sheldrick is not seeking reinstatement of his employment.

[67] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

The effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[68] No evidence was called about the effect of any order on Hazeldene’s enterprise and no submissions were made on this point.

The length of Mr Sheldrick’s service with the employer: s.392(2)(b)

[69] Mr Sheldrick had been employed from 7 December 2009 until 21 February 2014. This is not a short period of employment.

The remuneration that Mr Sheldrick would have received, or would have been likely to receive, if he had not been dismissed: s.392(2)(c)

[70] Mr Sheldrick’s annual salary was $75,000. I consider that he would have only remained in employment for at most six months. While I did not accept that the employment relationship had broken down sufficiently to justify the termination of Mr Sheldrick’s employment I consider that, because these events had soured what was otherwise a good relationship, it is likely that either Mr Sheldrick would have sought alternative employment or Hazeldene would have restructured its IT department such that all personnel would be required to participate in a formal on-call system and Mr Sheldrick’s position would have been made redundant.

The efforts of Mr Sheldrick (if any) to mitigate the loss suffered by the person because of the dismissal: s.392(2)(d)

[71] Mr Sheldrick commenced new employment on 31 March 2014 and his annual salary is $60,000 per year and there is no requirement for him to work additional hours.

The amount of any remuneration earned by Mr Sheldrick from employment or other work during the period between the dismissal and the making of the order for compensation: s.392(2)(e)

[72] Mr Sheldrick was paid three weeks pay in lieu of notice. Taking this into account, Mr Sheldrick had one week without wages in the period between the termination of his employment and the commencement of his new employment.

The amount of any income reasonably likely to be so earned by Mr Sheldrick during the period between the making of the order for compensation and the actual compensation: s.392(2)(f)

[73] Mr Sheldrick is likely to receive $60,000 per annum in this period.

Any other matter that the Fair Work Commission considers relevant: s.392(2)(g)

[74] No submissions were made about any other matters.

[75] While Mr Sheldrick is earning less in his new position, he is not required to work additional hours. Built into Mr Sheldrick’s wage at Hazeldene was a component for additional hours worked. On his own evidence he regularly worked an additional two hours per week. As it is difficult to calculate precisely how much this requirement is worth, it is not possible to directly compare his current wage with the wage paid by Hazeldene.

[76] Mr Sheldrick seeks eight weeks pay as compensation. He submitted that this was what he was offered to settle his claim. Of course that offer is irrelevant to any decision as to compensation.

[77] I make no discount for misconduct as I have not found that Mr Sheldrick was involved in any misconduct.

[78] Had Mr Sheldrick remained in employment he would have earned in the six months $7,500 more than he currently earns. In addition his superannuation contribution would have been higher. I have discounted this amount by 5% to take account of the fact that Mr Sheldrick is not required to work additional hours in his new job. I therefore order Hazeldene to pay Mr Sheldrick $7125.00 less appropriate taxation plus $641.25 to Mr Sheldrick’s superannuation fund within 21 days. An order to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr B Sheldrick representing himself

Ms A Conway and Ms P Grima representing Hazeldene Chicken Farm Pty Ltd

Hearing details:

2014:

Bendigo;

24 June.

 1   Exhibit A1 at [6].

 2   Ibid.

 3   Transcript at PN 59.

 4   Exhibit R6 at [9].

 5   Exhibit A3.

 6   Transcript at PN 196.

 7   Ibid at PN 198.

 8   Exhibit R6 at [11].

 9   Transcript at PN 200.

 10   Ibid at PN 65.

 11   Ibid at PN 71.

 12   Ibid at PN 530.

 13   Ibid at PN 40-42.

 14   Ibid at PN 202.

 15   Exhibit R2.

 16   Exhibit A1 at [11] and Exhibit R2.

 17   Exhibit R5 at Attachment “A”.

 18   At attachment to Exhibit A1.

 19   Exhibit A1 at attachment 1.

 20   Ibid.

 21   Ibid.

 22   At attachment to Exhibit A2

 23   Ibid.

 24   Ibid.

 25   Exhibit R6 at [24].

 26   Ibid at [25].

 27   Exhibit R5 at [12].

 28   At attachment to Exhibit R6.

 29   Transcript at PN 498.

 30   Exhibit R6 at [29].

 31   Ibid at [30].

 32   Ibid at [31].

 33   Transcript at PN 357.

 34   Transcript at PN 362 and 364.

 35   Ibid at PN 366.

 36   Exhibit R6 at [32].

 37   Respondent’s Outline of Submissions at [19]-[23].

 38   Transcript at PN 326 and 327.

 39   Ibid at PN 211.

 40   Ibid at PN 212.

 41   Chubb Security Australia Pty Ltd v Thomas Print S2679.

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