[2011] FWA 5491

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Fair Work Act 2009
s.394—Unfair dismissal

Azim Ehssan
Infoxchange Australia



Termination of employment - arbitration.

[1] The following decision, now edited, was given in transcript in Melbourne at the conclusion of arbitration proceedings on 3 August 2011. At the commencement of proceedings on 3 August the parties agreed to participate in further conciliation which ultimately proved unsuccessful. No aspects of merit were canvassed in the conciliation and I did not speak with the parties separately. The parties had agreed prior to the commencement of the conciliation that if agreement did not eventuate the matter would be determined.

[2] “I will, as I have indicated earlier, give an indication of the position I have reached and indeed give an outcome to the application. It is my intention though, assisted by the few minutes that have been afforded me by the brief adjournment to say something about the case. It is not enough to simply indicate a result but this is of course an application for relief by Mr Azim Ehssan (the applicant) insofar as his employment at Infoxchange Australia (the respondent, the company) as finance officer, and then latterly as the senior finance officer, is concerned.

[3] Mr Ehssan has, as has the respondent, represented himself. I appreciate the parties’ efforts to put across their arguments as cogently as possible. The position is that the company have had the benefit of legal advisers in preparing but not advocating their case, and Mr Ehssan has not had the benefit of preparation. Indeed it really has to be said that it might have been better had some preparation been indulged in by Mr Ehssan because it has not been easy at each stage to fully appreciate the thrust of his case. However, I have made an earnest effort to do so and I will endeavour now to summarise what has been put to me today as reflection of the fact that I have appreciated the principal arguments.

[4] Mr Ehssan has relied on two written materials, and they were very carefully identified with Mr Ehssan earlier today. The first was exhibit E1, a document of 28 May 2011 provided by Mr Ehssan which I think on a fair reading deals exclusively on matters of great contention insofar as Mr Mahar is concerned, the principal of the respondent, but which are matters raised by Mr Ehssan which strike very much at the corporate governance and indeed the moral standing of the company and its officers.

[5] Well, I think that is not right. I think it deals only with Mr Mahar rather than the officers of the company. The reference that one can see is made to the dismissal is that - in the penultimate paragraph the words appear, "My dismissal was to cover himself from misconducts" - in the plural - "and mismanagement in that place". Otherwise I must say I am only seeing broad personal and corporate criticism of Mr Mahar rather than anything in that submission which goes to the rightness or wrongness or fairness or unfairness, the harshness, unjustness or unreasonableness of the decision of Infoxchange to terminate Mr Ehssan’s employment.

[6] The other material which has been filed - and this is of course prior to the directions and in the normal way directions did ensue - was the form F2 filed by Mr Ehssan. If there is something else it has not been put to me, and it has been confirmed in fact that those two things with the submissions put and evidence given today constitute the basis of questioning the dismissal. But today - perhaps first I will say something about the material in the form F2.

[7] It sets out in a lengthy attachment the basis for saying the dismissal was unfair. It sets out some narrative which indicates that Mr Ehssan was put in a difficult position within the company - within the organisation - because he had been - and I am speaking here in shorthand terms, I do hope that will be appreciated - left to his own devices, to struggle to complete his tasks, the inference being that there was a lack of support.

[8] It says as much. The former finance manager went on annual leave and had an illness and Mr Ehssan was left alone. But Mr Ehssan goes on to say in this document that after a year or so in the job - and the employment endured for some four a half years, a little more - he was in a position to review things and he could then, it seems, be in a position to seek clarification on various transactions. There then ensues a similar account of the way in which moneys of Infoxchange were spent which go to allegedly dubious expenditure.

[9] They have been really ventilated quite thoroughly in the case so I will not go through them all but it challenges the basis upon which the business is conducted. It certainly challenges the basis upon which appointments had been made and is critical of other staff, most particularly Ms Wong who is the business manager.

[10] Both documents conclude, I think it is true to say, with this submission; that Fair Work Australia in the F2 or ‘the court’ in the F2, and in the filed submission is requested to take a serious and in depth attention - although it reads "in debt", I take that to mean "in depth attention" - of the matter, to ‘fix’ the organisation because it is run not for the public purpose for which it purportedly operates but rather for the benefit of the person essentially running it. There are criticisms of the business system and the need for good governance, and that by indeed the dismissal of Mr Mahar there can be then a new era in relation to the spending of the funds and the conducting of Infoxchange's technology for social justice purposes.

[11] Mr Ehssan’s case is it seems that there were poor business systems and he was poorly supported as he went about his work and for certain key times was stressed - perhaps not stressed but under pressure to perform, and that had some serious consequences. Beyond that there is in the applicant's submission a misrepresentation by Infoxchange as to a critical factual element of the narrative - that is, of what happened - which leads to a conclusion which is completely unjustified.

[12] Now, deciphered that means this. In Mr Ehssan’s account Mr Mahar, the Managing Director or the founding Chief Executive, agreed to something which had not happened at this organisation before, and that is, the cash out of annual leave. Of course that is a newly permitted activity really in Australia and it appears in the National Employment Standards to which it seems reference was had by Mr Ehssan.

[13] Mr Ehssan spoke with the then General Manager, Ms Collins, and Mr Mahar in May 2010 seeking permission to cash out a substantial amount of his annual leave. An agreement was reached that - I think it is right on the evidence to say while it was not a preferred course of action at all by the General Manager Ms Collins, and Mr Mahar, there was an agreement to permit the cash out because, as I understood the evidence, Mr Ehssan had need - it was beneficial for Mr Ehssan by virtue of a recent - well, a land purchase which had taken place not very much earlier. It might have been the deposit had been paid but nevertheless a sum of money of about $8000 was going to come in mighty handy for Mr Ehssan which is why he was knocking on the door.

[14] Mr Ehssan’s account is that that was ultimately agreed. There are some sharp elements to the agreement. Not only that Mr Mahar and Ms Collins did not want to do it and ultimately did agree to do it, but they were conscious that it might flow - and other people would want to do it and it was not the way in which things had been done previously. Nevertheless it was agreed it would be done.

[15] Mr Ehssan says that is the end of the matter. Nothing else was said. The sharpness was this: on Mr Ehssan’s account and Mr Mahar and the company’s account there was some toing and froing, to use a courteous term, about what the right rate was to cash out the leave. Against the disinclination of the company to pay it out and Mr Ehssan’s desire for it to be paid out, some sort of compromise appears to have been reached that it would be paid out on a rate which applied just previously in time prior to a recent pay increase. So the trade-off was it seems - these are my terms, not the terms of the submissions - but, "All right. Well, we will pay it out but it will be at the rate from last week or last month, not the increased rate.".

[16] Mr Ehssan, presumably because he wanted it as much as he did, agreed to that even though Mr Ehssan’s position was that that was quite wrong, it should have been the current rate. However - Mr Ehssan, as I have said only a moment ago, had looked up the National Employment Standards which have something else to say about how it might be paid, and that it should have been paid at the person’s rate of pay at the time as if they had gone on the leave, not as if they had gone on the leave six weeks earlier when they were on a lower rate of pay. Nevertheless Mr Ehssan accepted it and the payment was accomplished. Now, that is Mr Ehssan’s account.

[17] Tranquillity then continues, apart from some performance issues I will come to in a minute, until the audit later in the year, because it is common ground that the auditors queried two things: that the leave loading had been paid on the 320 hours paid for or cashed out by Mr Ehssan and that the 320 hours had been re-credited to Mr Ehssan’s annual leave credit. It should be noted that it is Mr Ehssan, to the exclusion of anybody else, who runs the payroll system - as part of his busy work that is one of the things he has to do. In this case Mr Ehssan’s position is that, there being no stipulation put on his - the basis of cash out of the 320 hours paid, he instructed the pay machine as he went about his activity, to pay him the annual leave loading on the 320 hours because it is Mr Ehssan’s case that at the 25 May meeting with the General Manager and Mr Mahar nothing had been said to the contrary and because he is a faithful servant and he would not do such a thing.

[18] Mr Ehssan was very keen to point out that there were very many adroit and clever ways that money could be taken from Infoxchange by someone who was of that mind, and indeed that credit should - I think some credit should attach to him because - well, he had never done that and he would never have done something less adroit, such as taking a leave loading when one had been instructed not to. In any event, Mr Ehssan’s position is that nothing was said in or after the 25 May summit meeting approving the cash out in relation to the leave loading until August. The auditors then, doing their preliminary report, bring to the notice - and I think this is perhaps a general practice - of the departmental head or senior finance officer, "What about this? What about this? What about this?".

[19] In this case they say to Mr Ehssan, "Well, this annual leave loading was paid out on this" and they treat that as an irregularity, and it is only then that Mr Ehssan - as I understand the narrative, and I think this is in fact accepted - well, it is certainly the case for Mr Ehssan - it is only then Mr Ehssan sees a letter of 25 May, an email attachment, from Ms Collins, the General Manager, which sets out the terms - that is, it sets out management’s response to the request to receive a proportion of the annual leave as paid out income by the organisation.

[20] Ms Collins’ letter - which I note went to the human resources payroll address at Infoxchange - said, "Leave loading of 17 and a half per cent has not been calculated on these amounts" - because amounts are previously given - "The paid out amount can only incur leave loading if leave is taken". So Ms Collins’ contemporaneous advice makes it very clear that leave loading is not to be paid. The auditors bring that to Mr Ehssan’s notice and Mr Ehssan says that he had not opened that (email) letter. He was unaware of that and Mr Ehssan’s case is that he, Mr Ehssan, knew that if the auditors were to bring that to Mr Mahar’s notice it would go in their report along with the other aspects that are always, it seems, in auditors’ reports. From August until September nothing transpires; that is to say, that Mr Ehssan makes no contact and takes no action, of which I was made aware today, in relation to the leave loading or the credit of the 320 hours.

[21] In the company’s account there is a completely different position and detailed evidence was given by Mr Mahar that in the meeting of 25 May 2010 great care was taken to specify, ultimately, that the leave could be taken but not the leave loading. Mr Mahar has a view, which he expressed, that there is a cost to the business in cashing out of annual leave; that is because in any year 13 months’ costs can accrue to 12 months’ service, and even though the employee’s accrual of annual leave would be decremented, Mr Mahar’s conception - which he made clear - was that it is a cost to permit payout of annual leave. Consistent with that it had been said in the meeting that there should be no leave loading, or there could be no leave loading, and that was a condition precedent to the annual leave cash-out agreement.

[22] The company’s case is that it is really reflective of Mr Ehssan’s performance of duties that he says he is not aware of the General Manager’s detailing in her letter of 15 May of the other conditions and really that reflects poorly on him that he does not open - if indeed he did not open, and I think it is left in the company’s submission hanging in the air, but in any event, if it is the truth that he did not open it, well, it reflects pretty poorly on a senior finance officer who has just had a meeting with the General Manager and the Chief Executive Officer.

[23] However, there are some other non-agreed aspects of the narrative that I am not going to go through because they are well known to the parties, and that is the length of time involved at the last meeting, the September meeting, and whether much turns on that I do not know. It is also necessary to say that the company bring to notice warnings given to Mr Ehssan, which were ultimately put into writing by Mr Mahar himself, specifying the various dates when some duties were refused by Mr Ehssan, which went to training and broad-based skill development within the company and which Mr Ehssan had declined to perform.

[24] The company also relied in their written materials - not all of this was replicated today - on a range of pay errors, such as paying superannuation upon annual leave and long service leave payouts when people were leaving, but there were a number of other performance matters which also the company rely on.

[25] As the parties are aware there are a number of matters that I am required by this statute to consider. First though I must consider whether a person, a particular applicant, is protected from unfair dismissal, and they are the sections set out from sections 382, 383 and 384 of the Fair Work Act 2009 (the Act).

[26] I have considered those sections and in my view there is no doubt that Mr Ehssan is a person who is protected from unfair dismissal for the purposes jurisdictionally of making this application. It is understood that his Honour Lawler VP has earlier dealt with some aspects of this case relevant to an extension of time [PR506328], because it is true to note that this case itself has some earlier considerable history in relation to a number of filings and it is not necessary for me to detail those now. Sections 385 and 386 describe what is an unfair dismissal and what indeed is a dismissal.

[27] Then, as I have been at some pains today to put to the parties, s.387 sets out the criteria for considering harshness, and it is that section that I am now going to deal with; those various subsections seriatim. Section 387(a) of course is a very important part of the section because in determining whether someone was harshly, unjustly or unreasonably dismissed - or in the normal vernacular whether their dismissal was unfair - Fair Work Australia must take into account whether there was a valid reason for the dismissal which related to the person’s capacity or conduct. This is central obviously to the determination.

[28] In this case if one accepts Mr Ehssan’s construction, and that is he swears on his word that he understood that the cash out had been approved without condition, and that it was a mistake - and an honest mistake - made by him to pay out the annual leave loading. As for the re credit, well, he said nothing about that today; the 320 hours. I think in the company’s papers earlier - some of the company’s materials - it is acknowledged, and I think there must be some system reason for this, that there is a system capacity to re-credit leave. I do not know quite why that would be, however it may have been - I say again it may not have been a conscious effort of Mr Ehssan’s to re credit the 320 hours.

[29] This case is focused on the leave loading, because if Mr Ehssan is right and there was no condition, that is no prohibition put on it, well, then you could understand someone being appalled and shocked to find that they were later said to have incorrectly benefited themselves in such a way. This is because, if there was an innocent explanation and one had benefited personally from a unique payout, having spoken personally with the General Manager and the Chief Executive Officer, and the policy had not been followed, or their wishes, as it turned out, had not been followed, one would be very shocked and sorry about that and keen to let the General Manager and the Chief Executive Officer realise that it was a mistake made in good faith.

[30] What Mr Ehssan says - and his case is that he did that. When Mr Mahar raised the question with him with Ms Wong in September of last year he indicated that it was a mistake and he admitted the mistake. He admitted the payout in the sense of admitting that he had made a mistake. Much is made in the company's contentions about Mr Ehssan saying, "Well, it’s not $10,000. You can’t sack me for that" as if there is a $10,000 barrier to dismissal. I have taken Mr Ehssan to say, "No, that is a complete misrepresentation and misunderstanding. Someone who took that view would be misunderstanding and misrepresenting in a seriously bad and wrong way what I did. I was saying that there’d been a mistake" - and an innocent mistake - made in the way that an innocent person would. Mr Ehssan did not say that, but in the way that an innocent person would.

[31] Indeed the evidence is very detailed from the company in a contrary way. That is, that Mr Ehssan, of course, had to acknowledge the fact of the leave loading. That could not be denied, but said that it was a mistake and that he had not opened Ms Collins’ email because the email letter was an attachment sent to - and it is a signed page by Ms Collins so it is done as an attachment; it is scanned and attached to an email. So there is a covering note talked about in a brief way one expects - it is not in evidence - about the approval of the cash out. It is the accompanying email that Mr Ehssan was not sufficiently interested to open.

[32] So, on Mr Ehssan’s account he acknowledges the mistake. He says it is a mistake. It was not of particularly high value (some $1100) and should be disregarded, and he should not be dismissed for it. The company represent his position as making an admission, as in a concession, or not acknowledging the mistake but making an admission and putting, as I have earlier indicated, this notion of a $10,000 barrier to termination and misunderstanding what he said. So that is the company’s account.

[33] Mr Ehssan says that there is a position of unity between the company officials to maintain the company as run for their personal interests and his interest somehow on this occasion runs counter to their interests. But he admits to the mistake in an honest way and against that is the company’s crisp evidence, that he was told in the 25 May meeting of the terms, which included no leave loading payout at the time of the annual leave payout.

[34] Mr Ehssan also says he was not really given the opportunity to respond properly. The meetings were much shorter than the lengthy periods that - I will not go through the disputed times.

[35] Section 387(a) requires me to determine whether there was a valid reason for the dismissal related to the person’s capacity or conduct. It has been found in the termination of employment jurisdiction in Australia that at this juncture, where a termination relates to the conduct of an employee, or indeed their capacity, as providing the motive force - the reason - for a termination, that it is necessary for the tribunal to come to a view and make a finding as to whether something pivotal actually happened, and then move to say, well, the party's action subsequently in dealing with that, and indeed in giving it proportionate weight and fairly considering it, does or does not constitute a valid reason when one has regard also for the other criteria.

[36] So in this case it is necessary, I think starkly, to hear the parties and make a decision as to which account is to be preferred, most particularly in relation to the May meeting. In this case I have paid close regard to what is put by Mr Mahar and Ms Wong. They have detailed recollections. I, in a general sense, have accepted what they have said although I was not as entirely content with one part of Ms Wong’s evidence, right at the end of her evidence, when Ms Wong remembered and embellished something that had been said. But in a general sense I have accepted their evidence.

[37] I have accepted Mr Mahar’s evidence over that of Mr Ehssan where they have conflicted in relation to the May meeting. I am conscious that Ms Collins is not present. There is a reason for her absence in the Jones v Dunkel [Jones v Dunkel [1959] HCA 8; (1950) 101 CLR 298 (3 March 1959)] sense - that is, if an important person, a potential witness, is absent without reason whose evidence one would have thought would be particularly relevant then one might - I am not trying to give the Jones v Dunkel rule with great precision, but if there is missing evidence on an important point then one is more readily able to draw a negative inference that had the person given evidence - the missing witness given their evidence - that it might - would not have supported the case of one side, in this case, the side who is in control, as it were, of that witness. Ms Collins was the General Manager. She did not appear but she is no longer with the company. No summons was issued. I want there to be no doubt about this. I have not drawn a negative inference.

[38] So it is necessary then to accept either Mr Ehssan’s account of the May meeting or that of Mr Mahar, and I have preferred the account of Mr Mahar - that is, on the point as to whether it was a condition of the cash out agreement that there be leave loading not paid. It is consistent with Mr Mahar’s general evidence on this point - that is, that it had never been done before, he did not favour it, he had made an exception. Most particularly that contemporaneously - at the time - there was an email sent by the General Manager to the pay officer - to the senior finance officer the subject of the agreement, setting out the conditions that had been agreed. It was done shortly after the meeting as I understand the evidence.

[39] It says, "This letter outlines the response to your request to receive a proportion of your annual leave as paid out income by the organisation. After a conversation with you and Andrew Mahar the following proposal is offered to you" and it sets out the things that I have recorded above (at paragraph 20) that “leave loading of 17 and a half percent has not been calculated on these amounts ... The paid out amount can only incur leave loading if leave is taken.” It also indicates the company vehicle is to be made available and so on. Now, that is a piece of empirical evidence which supports the company on the key element of contention in this case.

[40] It cannot have been - such an important point, very important to Mr Ehssan, cannot have been said and somehow forgotten or overlooked by Mr Ehssan. I am conscious that Mr Ehssan, who is responsible for the payroll of this organisation, has a responsibility to his employer, and indeed to himself, when he goes about effecting - that is, putting into effect - a unique payroll benefit which is only to benefit him and which he has just discussed with the General Manager and his Chief Executive Officer. That is, that he is to be the beneficiary of this unusual - this most particular pay arrangement. If it is shown that his actions do not then accord with the written advice - the minutes - emailed shortly after by the General Manager one would require good evidence that one would accept and can accept if against that it is said Ms Collins’ letter cannot be relied upon.

[41] Mr Ehssan’s whole case is to hold the company officers - the management - to a very high standard. One has to say that, I do not know anything, there being no objective evidence, about all these shocking calumnies of which he accuses the company officers - I do not know whether they are so or not. I have no jurisdiction to look at those. I do not know if there is criminality. I do say though people have to come to the table with clean hands. To hold the other side to a high standard they themselves have to operate to a high standard. In putting into effect a unique brand new payroll benefit advantaging only Mr Ehssan then it seems to me that there is a responsibility to open emails from the General Manager of a company. Not to do so puts one at peril. So it (the email) is a principal reason for me not preferring Mr Ehssan’s evidence over that of Mr Mahar.

[42] I also must say I am fortified in the conclusion I have reached when, in August 2010, the auditor raises the problem with Mr Ehssan and Mr Ehssan does not take any action. The auditor raises it with him - that is to say, "Look, we’ve found this problem.". Mr Ehssan now says the auditor said, "Well, it’s a common mistake" or words to that effect. Mr Ehssan did not take it up with Mr Mahar. There is some suggestion that at the dismissal meeting it is said that Mr Ehssan had told the auditor that he, Mr Ehssan, was going to take it up with Mr Mahar. Well, it is understood as I think, and it is not in contest, that it was going into the auditor’s report anyway. I do not know whether Mr Ehssan was hoping that it perhaps might not feature, and I am not told whether Mr Ehssan made restitution of the $1100. Perhaps he did. I simply do not know. But I am aware that there was no contact made with Mr Mahar after the auditor’s advice.

[43] I must say it strikes me - members of this tribunal are invited to inhabit the real world and not be up in the ivory tower - that if the beneficiary of a special arrangement, rather a breakthrough at this organisation - to benefit a person, to help them with these financial arrangements that were relevant at the time, is indulged in and then the beneficiary discovers that they have made a terrible mistake - a shocking mistake - and in good conscience had been the recipient of $1100 when there is a general managerial direction not to take that benefit - I must say I cannot fathom why a person would not then go straight to, in this case, Mr Mahar and say, "Gosh. I’ve made a pretty serious blunder and I want to tell you about it. Sit down and hang onto your hat because I’ve made a mistake and I don’t want you to think badly of me", because we have all made mistakes.

[44] Normally you would be keen to go straight to the person who you want to believe the mistake was innocent and say, "Look at this. Look what I’ve done" because Mr Ehssan - and I am very sympathetic to Mr Ehssan’s position. He presents as a person who has conducted his work in a conscientious way and he says that he was completely innocent of this and his later comments have been misrepresented. Well, I do not quite see why you would not go, as I have indicated, to Mr Mahar and put things in the open.

[45] The company case in a general sense was cogent. The evidence was detailed. I accept Mr Mahar and Ms Wong’s evidence. Much of it was not contradicted by Mr Ehssan. We do not have a strict puttage rule here, but Mr Ehssan did not take up many of the key points even though hopefully most of them were identified for him by me.

[46] I do not propose to have anything else to say other than then to deal further with what is the critical point in relation to valid reason. If, as I have found, it was a term of the 25 May agreement that the leave payout could only be applied with no leave loading paid out, then I think for that to have been disregarded does constitute a valid reason in the sense of s.387(a) and I so find.

[47] In relation to s.387(b) - whether the person was notified of the reason - it is not in doubt in this case that Mr Ehssan was notified. Mr Ehssan was given the opportunity to respond to the reasons. Whether it is a shorter meeting or a longer meeting, I must say on the narrative I do accept the estimates of time of the September meetings and that Mr Mahar spoke privately after the lengthier session with Ms Wong. Mr Mahar spoke privately with Mr Ehssan and I think that certainly in those two opportunities Mr Ehssan was given an opportunity to respond.

[48] I have also accepted that over the weekend Mr Mahar was open to Mr Ehssan considering his position and this was a position I am conscious also related to resignation, but it showed, I think, that there was at least an opportunity given to respond as to capacity or conduct. I think this is more a conduct issue rather than a capacity issue.

[49] Section 387(d) requires me to consider any unreasonable refusal by the employer to allow the applicant to have a support person and there was no support person; one was not sought and one was not refused, unreasonably or otherwise, so I do not know that that really advances the cause very much. Having heard Mr Ehssan and Mr Mahar I do not think there is any doubt anyway that they are well able to take a point and argue it, so whether a support person would have been necessary is something that I do not need to speculate about.

[50] Section 387(e) arguably - well, whether this is a performance or a conduct issue - performance of duties, conduct as a senior finance officer - perhaps one should see them together. I have to be conscious about previous warnings - although in this case they are not determinative. In a general sense it is true, and it forms part of the background matrix to the circumstances of this case, that there had been a written warning in relation to a number of performance issues, alleged shortcomings, particularly where Mr Ehssan in the recent past had not wanted to train people and had been - I think the company says - uncooperative in that regard.

[51] Section 387(f) requires me to consider the size of the employer’s enterprise in relation to its impact on the procedures followed in effecting the dismissal - not a series of words that trills from the lips - but I have had regard to the size of the organisation. I have not been addressed on this and I do not think it is particularly relevant, but equally, the degree to which the absence of dedicated human resource management specialists - that is, s.387(g) - the HRM specialists or their expertise in the enterprise might have been likely to impact on the procedures followed in effecting the dismissal.

[52] It has not been raised. I do not think it is a material point. This is a medium-sized business, organisation. It operates in a professional way. Insofar as the dealings were conducted they were not meetings conducted in a quarry with swearing and shouting. They were conducted in a proper way, all the meetings, so I have already found that there was an opportunity to respond. Any other matter that Fair Work Australia considers relevant is the s.387(h) rubric or head of consideration.

[53] Matters that I have regarded as relevant I have included in my considerations in relation to valid reason; that is, as one makes the finding of fact as to whether something happened in this case, because this is a classic instance of it being necessary to make a finding as to what happened on the ground and then stepping back and considering does that in turn constitute a valid reason. It is for all those reasons that in my view this is not an application that can succeed because I think there was serious misconduct involved as a result of the findings I have made and I dismiss the application. I now adjourn.”

[54] An order to that effect, dismissing the application is found in PR513837.



A Ehssan the applicant.

A Mahar for the respondent Infoxchange Australia.

Hearing details:



August 3.

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<Price code C, PR513542>