[2011] FWA 6230

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Fair Work Act 2009
s.394—Unfair dismissal

Robby Lankam
Federal Express (Australia) Pty Ltd T/A Fed Ex



Termination of employment - unfair dismissal application.

[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed with Fair Work Australia on 25 November 2010 by Mr Robby Lankam (the Applicant) in respect of the termination of his employment by Federal Express (Australia) Pty Ltd (the Respondent or FedEx) on 15 November 2010.

[2] The Respondent filed a response to the application on 13 December 2010 and a telephone conciliation conference was conducted on 16 December 2010. The matter was unable to be resolved at conciliation. The respondent did not object to Fair Work Australia’s jurisdiction to determine the application.

[3] The matter was listed for arbitration and directions were issued in December 2010. In accordance with the directions both parties filed an outline of their submissions and witness statements containing the evidence on which they sought to rely.

[4] The matter was originally listed for arbitration on 17 March 2011. Prior to the hearing the Applicant requested the assistance of a Mauritian Creole interpreter. No specialist in this language was available on that date to assist the applicant at the hearing. It was agreed that the hearing would proceed subject to the Applicant’s ability to understand questions put to him.

[5] The hearing of 17 March 2011 was adjourned after approximately two and a half hours as it was apparent that the Applicant was having difficulty understanding the proceedings and there were concerns that his case may be prejudiced as a result of the Tribunal’s inability to provide him with an interpreter. 1 After retaining relevant interpreting services the matter was relisted.

[6] The arbitration hearing resumed in Sydney on 7 and 8 April 2011. At the hearing the Applicant was represented by Mr Nick McIntosh of the Transport Workers’ Union (the TWU) and Mr Paul Brown, a solicitor, represented the Respondent.

[7] The Applicant had been employed by the respondent as an ‘Operations Agent’ since 8 September 2004. The Applicant’s job involved the performance of parcel sorting as part of logistics operations carried out at the Respondent’s processing centre located at Alexandria in the Southern suburbs of Sydney. At the time of the termination of his employment he was employed on a part-time basis and worked 28 hours per week on a regular basis.

Chronology of Events

25 June 2010

[8] On 25 June 2010 a package supposedly containing assorted gold jewellery worth USD$23,091.66 (the June Missing Package) was received into the employer’s depot at Alexandria and apparently disappeared. 2

Late July 2010

[9] The intended recipient of the June Missing Package contacted the Respondent claiming not to have received the package. An investigation into the whereabouts of the missing package was commenced.

30 August 2010

[10] On 30 August 2010 the Applicant was approached by Mr Dale Canvin, a member of FedEx’s security personnel, and asked to attend a meeting with him. The Applicant was questioned about the disappearance of the June Missing Package.

Following the meeting the applicant consented to Mr Canvin inspecting the contents of his locker. The contents of the locker included:

[11] The contents of the locker were photographed.

17 September 2010

[12] On 17 September the Applicant was informed by Ms Mary Cristaine Monje-Altera (also known as “Kitting”) that Mr Canvin wished to have another meeting with him. The Applicant requested that he be permitted a union representative to accompany him but was informed that this was not allowed in security investigations. The Applicant was told he could have a member of HR as a support person if he wished.

19 September 2010

[13] On Sunday 19 September the Applicant was at work. Ms Monje-Altera asked to speak with the Applicant during his lunch break. A discussion between the two ensued during which Ms Monje-Altera told the Applicant that he was to meet with Mr Canvin the following day to participate in a ‘formal security meeting/interview’. The Applicant was shown FedEx’s company policy concerning security and advised that, according to the policy, he could receive a warning or have his employment terminated if he did not attend the meeting. 3

20 September 2010 - First interview about the June Missing Package

[14] On 20 September 2010 the Applicant attended a formal meeting with Mr Canvin. Also at the meeting was Ms Monje-Altera, who was supposedly taking part as the Applicant’s support person.

[15] At the meeting the Applicant was shown CCTV footage recorded on 25 June 2010 and questioned at length about his actions as depicted in that footage. He was also asked about the contents of his locker and his knowledge of the employer’s locker policy and security policy.

21 September 2010 - Second interview about the June Missing Package

[16] On 21 September 2010 the Applicant attended a second formal interview with Mr Canvin and Ms Monje-Altera.

24 September 2010 - Third interview about the June Missing Package

[17] A third formal interview of the Applicant occurred on 24 September 2010. The interview participants were the same as on 20 and 21 September.

19 October 2010

[18] On 19 October 2010 a package handled by the Applicant at the Alexandria depot was tossed by him and landed in a garbage bin located at the end of the conveyer belt he was working on at the time (the October Missing Package). The ultimate fate of the October Missing Package remains unknown, but it appears that it simply remained in the bin and was eventually collected and disposed of by FedEx’s external waste management contractor along with other garbage.

28 October 2010 - First interview about the October Missing Package

[19] On 28 October 2010, following an interview between Mr Canvin and the Applicant, a decision was taken to stand the Applicant down with pay. The Applicant was handed an ‘investigative suspension letter’ by Ms Monje-Altera.

2 November 2010 - Second interview about the October Missing Package

[20] A meeting attended by the Applicant, Mr Pere Wihongi (the TWU delegate at the depot) Ms Monje-Altera and Ms Maria Galanopoulos (FedEx HR) occurred on 2 November 2010.

4 November 2010

[21] The Applicant was issued with a letter formally extending his suspension.

8 November 2010 - First interview about both missing packages

[22] Mr Lankam was subject to a formal interview about the disappearance of both the June and October Missing Packages. The interview was attended by the Applicant, Mr Rob Pirc, a union representative, and Ms Galanopoulos.

15 November 2010 - Second interview about both missing packages and termination

[23] On 15 November 2010 a further formal interview was conducted. The Applicant was accompanied by Mr Dennis Pehar, a union representative, and the employer was represented by Ms Monje-Altera and Ms Galanopoulos. Following this interview the Respondent terminated the Applicant’s employment with immediate effect. A letter of termination of the same date set out the reasons for the termination of the Applicant’s employment as follows:

Applicant’s Evidence

[24] The Applicant’s evidence was set out in two statements, the second of which was by way of response to the statements filed on behalf of the Respondent. 5 The Applicant had been employed by FedEx for over 6 years. He set out in detail the duties he performed for the employer, which consisted of receiving and sorting packages and articles for further despatch.

[25] In relation to the articles found in his locker on 30 August the Applicant stated that:

[26] The Applicant noted that his locker was again searched about three weeks later. By that time he had removed all its contents other than the plastic bag for snacks. Soon after the second inspection the Applicant surrendered his locker key as it had “become too much” for him.

[27] So far as the interviews were concerned the Applicant could not recall the exact details of each interview. He had asked to have union representation for the first interview on 20 September 2010 but this request had been denied. He was told he could have someone from HR and, given this choice, he agreed to have Ms Monje-Altera as a support person. 6 He had been interviewed by Mr Canvin on 20, 21 and 24 September, with Ms Monje-Altera in attendance. He was shown part of the CCTV footage for 25 June at each of the interviews and recalled it showed him picking up and putting aside two smaller packages, scanning one of them and then moving towards the destination cages carrying both packages.

[28] After the interviews the Applicant continued to work as normal until late October when he was suspended with pay. Following his suspension he attended an interview with Ms Monje-Altera and “Mary from HR”. He was allowed a union representative at that interview and was accompanied by Mr Pere Wihongi. At that interview he was shown CCTV footage from 19 October 2010. It was the Applicant’s evidence that the footage showed him throwing two packages in a forwards direction back up the chute at which he was stationed. One of the boxes fell onto the floor and another one fell into the bin at the end of the conveyer belt and remained there. The footage also showed the Applicant subsequently picking up the package that fell on the floor.

[29] The Applicant recalled attending two further meetings with Ms Monje-Altera and Mary. He was accompanied at each by a TWU representative. At the meeting on 8 November he was again asked about the package he was seen handling in the CCTV footage of 25 June. He was unable to recall anything about the particular package. It was also his evidence that if he had in fact neglected to scan the package it was “an honest mistake”. 7

[30] At the final meeting on 15 November the Applicant was again asked if he had anything to say about the packages he had handled on 25 June and 19 October. He stated that he did not steal either package. Later that day he received a letter of termination.

[31] The Applicant lodged an internal appeal against his dismissal. In his appeal he stated that he had not stolen anything, had worked for the company for over 6 years and had a clean record. The company response was that he had “breached company policies” and therefore had “to move on”. The Applicant then wrote to the Managing Director of the company stating that he had not stolen anything and had been a good and loyal worker. 8 He recalled the managing director telling him that he had “committed misconduct” and that “that was it”.

[32] In his first statement the Applicant described the effect of the dismissal on him and on his family, noting that his poor English had made it difficult to obtain alternative employment.

[33] The Applicant’s second statement dealt further with the CCTV footage and responded to some claims made in the statements of the Respondent’s witnesses. He stated that after reviewing the CCTV footage he was still unable to remember the events of 25 June 2010 specifically as nearly nine months had passed since then and it “seemed like a normal day” to him. 9 He agreed that he appeared to have two packages in his hand when he walked out of the camera range and assumed that, as he had already closed the Adelaide cage, he had proceeded to open the Perth cage, scanned the packages and put them in that cage. So far as the CCTV footage of 19 October was concerned he noted that it was normal to throw smaller packages out of the way in order to load larger, heavier packages first. He did not know why he had only recovered the package that fell on the floor and not the one that fell in the bin, but assumed it was because he did not notice that a box had fallen into the bin.

[34] In relation to the statements of Mr Canvin and Ms Monje-Altera, the Applicant took issue with any suggestion that he had been untruthful or misleading in his interviews. The Applicant suggested that his poor English sometimes made it difficult for him to get his meaning across. He also denied the claim that he ‘chose’ Ms Monje-Altera to be his support person. He had wanted union representation but when this was denied, and he was told he could only have someone from FedEx HR or no one at all, he preferred to have Ms Monje-Altera present.

[35] Under cross-examination the Applicant agreed that on 30 August 2010 he had consented to the inspection of his locker by Mr Canvin. 10 He also conceded11 that he was aware of the FedEx locker policy which provides as follows:

[36] The Applicant agreed that when his locker was inspected on 30 August 2010 a number of items were “recovered”, including an eight-centimetre silver blade knife, a number of DVDs (some of which were pornographic in nature) and a small, clear, re-sealable plastic bag which had written on the bottom of it the words “Katherine W.” It was put to the Applicant that the bag had been given to him by an establishment that dealt with the purchase of gold. 13 The Applicant stated that the bag was a promotional item and that he did not know if the establishment dealt with the purchase of gold or that the company which gave him the item was called ‘Gold Resellers’.14

[37] The Applicant was taken to page 17 of the statement of Ms Monje-Altera where Ms Monje-Altera had set out her recollection of the Applicant’s answers to a particular line of questioning during the meeting of 8 November 2010. In particular, Ms Monje-Altera alleged that when she asked the Applicant where he had obtained the Gold Buyers bag from, the Applicant had replied as follows:

[38] The Applicant was then asked if he had a different recollection of that conversation than that contained in Ms Monje-Altera’s statement. The Applicant replied that he did not. 16

[39] The Applicant was further cross-examined about his knowledge of, and adherence to, the Respondent’s policies concerning storage of items in lockers and FedEx security restrictions in relation to firearms and weapons. The applicant conceded that he knew his employer had a policy about what items could be kept in his locker. He also conceded that he knew he was not allowed to keep pornographic videos or knives in his locker at the time he put those items in his locker. He clearly denied, however, that the employer should be suspicious merely because he had a plastic bag from a gold reseller in his locker. 17

[40] When asked about the meeting that took place on 20 September 2010 concerning the June Missing Package, the Applicant agreed that he had been shown CCTV footage taken on 25 June at that meeting. The Applicant was then asked a series of questions about the type of package he could be seen holding in the 25 June CCTV footage. The relevant line of questioning went as follows: 18

Evidence of Pere Wihongi

[41] The Applicant called only one other witness, Mr Pere Wihongi. Mr Wihongi was a TWU delegate for the FedEx Alexandria depot. He had been employed by FedEx for about 12 years. Mr Wihongi filed two statements. 19 Mr Wihongi had known the Applicant for the full period the Applicant had been employed by the Respondent. He stated that the Applicant had never been in trouble and was honest and hard-working.

[42] Mr Wihongi gave evidence about a FedEx company policy known as ‘t-stacking’ whereby smaller packages are stacked on top of larger packages to avoid being crushed. He noted that it was usual procedure to put the smaller packages to one side or on the floor until the larger packages were dealt with. It was also the evidence of Mr Wihongi that bins have always been kept at the end of the chute, with the possibility that a package could fall into them at any time.

[43] According to the witness the footage of the Applicant working on 19 October showed the Applicant moving smaller packages out of the way so as to be able to reach larger packages. It was Mr Wihongi’s impression of the CCTV footage that the Applicant appeared not to notice that one of the packages had fallen into the bin. It was his view that, given the Applicant’s height and the height of the bin, it would not be surprising that he didn’t notice the package in the bin. Since the Applicant’s dismissal Mr Wihongi had questioned Ms Monje-Altera about the advisability of bins being kept at the end of the chute. 20

[44] The witness’s evidence also covered the large number of packages received at the depot each day and the fact that missed scans or misdirected parcels can and do occur, particularly when there is a shortage of staff. He noted that there can be between 3,000 and 10,000 packages per flight and that one or two mistakes per flight was normal. Mr Wihongi was aware of a process used to help locate packages that had missed being scanned or had been misdirected, but said this system was not always used in practice.

[45] According to Mr Wihongi, he and other employees had brought their own cutting instruments, such as knives, to the workplace both before and after cutters were issued by the employer. He stated that it would not be unusual for an employee to have a knife in his locker.

[46] Mr Wihongi’s second statement was filed in response to the statements filed by Mr Dale Canvin and Ms Monje-Altera. Based on the information about the June Missing Package contained in Mr Canvin’s statement, Mr Wihongi stated that he did not believe the package held by the Applicant in the CCTV footage was the June Missing Package as:

[47] It was Mr Wihongi’s evidence that for the Applicant to have even handled the June Missing Package three other employees must have each made a mistake in relation to that package. The package should have been placed in Bond. According to Mr Wihongi, at the end of each ‘sort’ a report is supposed to be generated to confirm all packages on HOLD have reached the Bond (the HELD report). A search is instituted for any HOLD package identified in the HELD report as missing. According to Mr Wihongi, “if the HELD Report is not conducted then no-one will know where the HOLD package is until the intended recipient enquires about its whereabouts”. 21

[48] It was noted by Mr Wihongi that a HELD Report for the 25 June sort must not have been completed because nothing further occurred in relation to the package until an enquiry from the intended recipient sometime in July. Mr Wihongi further noted that it appeared from Mr Canvin’s statement that an investigation into the status of the 25 June HELD Report had not been done.

[49] Mr Wihongi also provided another reason as to why, in his opinion, it was unlikely the June Missing Package even reached the chute on which the Applicant was working. He stated that between 11:00 am and 12 noon each day the ‘Exports Section’ starts its sort and the conveyer belt that normally takes packages to the Bond is put in reverse. Mr Wihongi explained that, while the conveyer belt is in reverse packages destined for the Bond are not placed on the conveyer belt but are instead kept on the “ballmat” by the operators on duty. During that period packages which have cleared customs (some of which could be high value and may have resembled the package held by Mr Lankam) are sent from the Bond to be sorted.

[50] Mr Wihongi noted that neither Mr Harriefeld nor Mr Podveroc were questioned by Mr Canvin about the June Missing Package to the same extent as the Applicant, despite both men having scanned that package. Mr Harriefeld was merely asked whether he had seen anything unusual and Mr Podveroc, he claimed, was not spoken to at all.

[51] When referred to Ms Monje-Altera’s statement, Mr Wihongi did not agree that the Applicant had said that he had seen the 19 October package fall into the bin. It was his evidence that the Applicant denied seeing it fall into the bin but stated that he should have retrieved it had he seen it fall. It was also Mr Wihongi’s evidence that the Applicant’s lack of English had meant that he had been susceptible to misinterpreting the questions asked by Ms Monje-Altera.

[52] When cross-examined Mr Wihongi reiterated that the CCTV footage for 19 October showed that the package thrown by the Applicant had accidently fallen into the bin and that both he and the Applicant had shared that opinion. When asked about Ms Monje-Altera’s recollection that the Applicant had in fact admitted seeing the package in the bin on 19 October, Mr Wihongi recalled that discussion, but denied that the Applicant had accepted that on 19 October he had actual knowledge that the package was in the bin. Mr Wihongi noted that the Applicant only made the concession after being shown the video three times and it was his belief that the Applicant had misunderstood the question and was agreeing that he could see the package in the bin not that he had in fact been aware of its presence there on 19 October.

[53] It was also Mr Wihongi’s evidence that the FedEx policy about the possession of knives was confusing, given that managers were aware that many employees used their own cutters for opening the packaging. In response to a question in re-examination he explained his confusion as follows:

Respondent’s Evidence

[54] Two witnesses filed statements and were called to give evidence on behalf of the Respondent at the hearing:

[55] Two discs containing CCTV surveillance footage and audio recordings of the security interviews respectively were annexed to the statement of Ms Monje-Altera. At the conclusion of the hearing it was agreed by the parties that I was to consider the footage in reaching my decision. 23

Mr Canvin’s Evidence

[56] Mr Canvin, FedEx’s Senior Security Specialist for the Australasian region, had been employed in that position since 2006. Mr Canvin’s statement 24 detailed the manner in which parcels are shipped by FedEx and the systems involved in tracking those parcels.

[57] According to Mr Canvin he was informed in late July 2010 that a package with identification number AWB738112396861 had not been received by the consignee. He immediately commenced an investigation into the disappearance of the package, utilising FedEx’s computer tracking systems for the purposes of his investigation.

[58] Mr Canvin said his investigations revealed that the June Missing Package contained gold jewellery worth USD$23,091.66 and was collected in India on 22 June 2010 for shipping to a recipient in Brisbane. The computer records confirmed that the June Missing Package arrived in Australia on Emirates Flight EK412 and was scanned by employee Tony Podveroc upon its arrival at the FedEx depot in Sydney at 11:32 am on 25 June 2010. The computer records also showed that the package should have been sent to the Bond for customs clearance.

[59] It was Mr Canvin’s evidence that he had studied CCTV footage of parcels being unloaded and distributed from the Emirates flight, in order to try and identify the June Missing Package. He had been provided by the agent in India with a photo of a package similar to the June Missing Package and ascertained that it was in a medium size FedEx box with red wax seals. He noted that the employees involved in unpacking the consignment from the Emirates flight were the Applicant, Mr Podveroc and Mr Harriefeld.

[60] Mr Canvin’s observations from the CCTV footage were that:

[61] As to what, in his opinion, happened next according to the surveillance footage, Mr Canvin’s statement provided as follows:

[62] It was also Mr Canvin’s evidence that the second package held by the Applicant was delivered to Perth along with some other documents, all of which arrived on the Emirates flight, but that “there was no activity scan or information to suggest that the June Missing Package arrived in Perth”. 26

[63] As a result of his investigations Mr Canvin decided to question, or hold informal discussions with, the four employees who had dealt with the Emirates flight shipment. He stated that he held informal discussions with the four employees in late August 2010 and then determined to interview Mr Lankam and Mr Ross.

[64] Mr Canvin’s evidence went to his inspection of the Applicant’s locker and the articles found as a result of that inspection. Mr Canvin found the presence of the “Katherine W” bag from Gold Buyers suspicious given the contents of the June Missing Package, and felt that this warranted further investigation. 27

[65] Mr Canvin detailed the interviews held with the applicant on 20, 21 and 24 September which Ms Monje-Altera attended in the capacity of the Applicant’s support person.

[66] According to Mr Canvin, at the first interview on 20 September the Applicant:

[67] It was Mr Canvin’s evidence that when the interview resumed on 21 September the Applicant:

[68] Mr Canvin claimed that during the interview on 24 September 2010 the Applicant:

[69] Mr Canvin’s statement also dealt with the package that went missing on 19 October 2010. That package had a declared value of $152. Again Mr Canvin relied on the computer tracking system and his observation of CCTV footage to determine that the missing package had arrived at the Sydney depot, been forwarded to the Adelaide/Perth chute and then fallen into a bin at the side of the chute when the Applicant threw two boxes “approximately two (2) metres from where he is standing, back up the chute and towards the edge of the slide”. 28 The missing package remained in the bin until it was emptied by a cleaner (who was completely oblivious to the presence of the box in the bin) late that night. It appears that the package was thrown out with garbage and removed from the site in a garbage skip early the next morning.

[70] According to his statement Mr Canvin decided to interview only the Applicant about the disappearance of the October Missing Package “as he was the last person to handle [it]”. 29 The first interview took place on 28 October 2010. At the interview the Applicant recalled working on the chutes on 19 October but did not recall throwing the packages. The Applicant was shown the CCTV footage and, according to Mr Canvin, agreed that he had thrown the package into the bin. Mr Canvin concluded that:

[71] Mr Canvin determined that Mr Lankam had violated company policies by bringing a knife into the workplace and storing pornographic DVDs in his locker. Mr Canvin also considered that the applicant was less than honest in his answers in interviews and that given his failure to work in accordance with FedEx policies and procedures, he could no longer be trusted by his employer. For these reasons Mr Canvin did not consider that reinstatement would be appropriate. He reiterated that it was a breach of FedEx policy to bring a knife into the workplace.

[72] Under cross-examination by Mr McIntosh Mr Canvin agreed that:

[73] While he suggested that all or some of these employees may have made mistakes it was also Mr Canvin’s evidence that there may have been “something more sinister involved”. 31 The witness took issue with the suggestion that at the time the Emirates flight container was unloaded the Export area was in operation and the top belt was running in reverse (creating a need for operators to keep articles destined for the Bond on the ballmat until the top conveyer belt began to operate in the opposite direction). It was the witness’ evidence that it was apparent from the CCTV footage that the conveyer belt was operating to deliver articles to the Bond. Mr Canvin conceded that he had not mentioned the direction of the conveyer belts in his statement and that it had been some months since he had viewed the CCTV footage.

[74] Under further cross-examination Mr Canvin:

[75] It was then put to Mr Canvin that the applicant had placed the other package in the transhipment container. Mr Canvin responded that the suggestion was incorrect as “it was a shipment for Brisbane. Why would it go into a transhipment container?” 33 It was then put to the witness that the package held by the Applicant was not the June Missing Package that had been meant to go to Brisbane. Mr Canvin appeared not to accept the premise.

[76] When asked about the investigation he conducted into the disappearance of the June Missing Package Mr Canvin:

[77] Mr Canvin denied the proposition that, in light of his failure to interview the other operators involved in the handling of the June Missing Package, his investigation was flawed and incomplete. Mr Canvin also denied the proposition that he had investigated the Applicant as he was the easiest to blame because he was on the end of the chain. 35

[78] So far as the HELD report was concerned it was Mr Canvin’s evidence that the report was probably run two or three times each day for the purpose of checking packages going into and out of the Bond. He stated that he had investigated the matter of whether HELD reports were actually done on 25 and 26 June. Mr Canvin explained that he did not really understand how the HELD report operated but had been told that “because the duties and taxes were paid prior to the scan it [the June Missing Package] would not have shown onto the report”. When he was asked whether the HELD report was supposed to show when a package enters the bond and when it comes out of the bond, he replied: “It’s based on a number of different scans and I would think that that would be one of the things they look at, yes”. 36

[79] Further cross-examination about the operation of the HELD report elicited little useful information. The gist of Mr Canvin’s evidence in this regard appeared to be that the June Missing Package was destined for the Bond but did not show on the HELD report because the computer entry appeared to suggest that the duties and taxes had been paid, although this was not the case. It was also his evidence that a scan of the June Missing Package made seven or eight minutes before it was due in the Bond had changed the status of the package.

[80] It was the witness’s evidence that he did not check the HELD report for 26 June but only 25 June. 37 He did not accept a proposition that the June Missing Package may have gone into the Bond and disappeared at a later stage.

[81] So far as the October Missing Package was concerned the witness:

[82] Mr Canvin appeared to agree with the proposition that as the October Missing Package ended up in a garbage truck, it could not have been the Applicant’s plan to steal it. He stated that there was no evidence that the Applicant had tried to steal the package but claimed that it was not ridiculous to suggest that he had tried to steal it. 39

[83] When asked about the contents of the Applicant’s locker Mr Canvin:

[84] Under cross-examination Mr Canvin indicated that he had made enquiries of the shop that had provided the bag found in the Applicant’s locker, but his enquiries did not assist in the investigation. No jewellery of the type contained in the June Missing Package had been sold to the shop. He agreed that he had not included this part of his investigation in his statement.

[85] When questioned about the process involved in the interviews with the Applicant Mr Canvin:

[86] Mr Canvin agreed that the Applicant appeared to have general difficulties with his English but denied that he appeared to be having difficulties understanding questions during the interviews conducted in September 2010. He then agreed that he may have had difficulty with a particular question but in such circumstances a number of questions were asked to clarify the point. He disagreed that, due to the Applicant’s difficulties with English, little weight should have been placed on anything said at the interviews.

[87] When re-examined by Mr Brown, Mr Canvin noted the difference between ‘security interviews’ and ‘disciplinary interviews’ under FedEx company policy. He was only involved in ‘security interviews’.

Evidence of Ms Monje-Altera

[88] Ms Monje-Altera filed a statement of evidence 42 setting out her role and duties. It was her evidence that the Applicant had been under her direct supervision from about November 2009, when she assumed her current position. Ms Monje-Altera described the operations performed by FedEx at the Alexandria Depot and the role of the operations agents, including the Applicant.

[89] In her statement Ms Monje-Altera described her role in the investigations leading up to the termination of the Applicant’s employment. She was not involved until approached by Mr Canvin on 17 September in order to arrange an interview with the Applicant. The Applicant had told her that Mr Canvin had spoken to him previously about the June Missing Package and that he wanted his TWU representative present at any further interviews. The witness had made enquiries of HR and Mr Canvin concerning the Applicant’s entitlement to third party representation at the interview and was advised that it was not appropriate for this to happen in the context of a ‘security interview’. As a result, she had informed the Applicant that he could have someone from HR or Ms Monje-Altera herself as a support person/witness. It was also Ms Monje-Altera’s evidence that she had shown the applicant the FedEx policy that required him to co-operate with the security interview. The applicant had decided to be supported by Ms Monje-Altera.

[90] Ms Monje-Altera’s statement indicated that she was present at the interviews with the Applicant on 20, 21 and 24 of September. It was her evidence that at the conclusion of the three interviews she had formed the view that the applicant was “less than truthful” about his recollections of 25 June and the June Missing Package, he had made a number of inconsistent statements and he had not followed FedEx procedures in handling the package.

[91] So far as the October Missing Package was concerned Ms Monje-Altera stated that:

[92] Ms Monje-Altera conducted an interview with the applicant on 2 November 2010 with Mr Wihongi and Ms Galanopoulos from FedEx HR in attendance. She had asked the Applicant about the duties he had performed on 19 October and a number of questions about the manner in which he usually performed his duties. The Applicant was shown the CCTV footage for 19 October and when asked why he threw the two packages he replied “I did not intentionally throw them”. It was Ms Monje-Altera’s evidence that during the interview the Applicant recalled not picking the package out of the bin and also admitted seeing the package in the bin and thinking that he would pick it up later. 43 Ms Monje-Altera stated that she was less than satisfied with the responses given by the Applicant at the interview.

[93] A further interview occurred on 8 November with the applicant represented by a TWU official, Mr Rob Pirc. The interview was for the purpose of investigating both the June Missing Package and the October Missing Package. Ms Monje-Altera asked the Applicant a number of questions about 25 June, including about his handling of the two packages he could be seen holding in the CCTV footage on that date and why he scanned one package and not the other. 44 He stated that there may have been a mis-sort but that he couldn’t remember. He denied knowing the contents of either of the packages. The Applicant was then questioned about the contents of his locker that were discovered on 30 August. He had reiterated that the knife was a present from his former supervisor at Australia Post but that, although it was for opening packages, he had never used it. In response to other questions the Applicant had stated that he had the DVDs to give to a friend on the way home and that he had been given the “Katherine W” Gold Buyers bag as part of a promotion and that it had contained a fake $50 note. He had brought the bag and note to work as a joke. At the end of the meeting Ms Monje-Altera had advised the Applicant that she would be making a decision as to his ongoing employment.

[94] The Applicant was sent a letter on 11 November advising him that it was FedEx’s view that he had engaged in misconduct, including a breach of FedEx policies. At a further meeting with Ms Monje-Altera and Ms Galanopoulos on 15 November the Applicant was supported by a person named Dennis. At that meeting Ms Monje-Altera elaborated on the allegations in the 11 November letter as follows:

[95] After a short break in the meeting Ms Monje-Altera asked the Applicant if he had anything to say. He replied “I didn’t steal the packages”. Ms Monje-Altera then responded by saying: “No one is accusing you of stealing any packages. Our concern is with the mishandling of packages and breaches of FedEx policy. We will let you know of the outcome of our investigation”.

[96] According to Ms Monje-Altera she then decided to terminate the Applicant’s employment and sent him a letter to that effect on the same day. At paragraph 48 of her statement she set out the views she had formed as a result of her investigations. These included that there were sufficient facts and circumstances to find that the Applicant was involved in the interference/removal of parcels and that he had not sufficiently explained his activities in relation to the parcels. Additionally it was her view that he had failed to follow procedure on 25 June and that the contents of his locker breached FedEx’s policies.

[97] It was Ms Monje-Altera’s evidence that she genuinely believed that the applicant “was involved in the unauthorised removal and/or destruction of two packages in breach of FedEx’s policies”. She had lost trust in the applicant and consequently reinstatement of the applicant would not be appropriate.

[98] Under cross-examination Ms Monje-Altera:

[99] The following proposition was then put:

[100] Ms Monje-Altera also agreed with the proposition put for the Applicant that when an export run is done the conveyer belt is reversed and items destined for the Bond Store are placed on the ballmat until the export run is finished. The witness also agreed that if the export run on 25 June ended after 11.32 am then the June Missing Package would have been put on the ballmat by the operator working on the chute it came down.

[101] When asked about the HELD report Ms Monje-Altera agreed that it was done at the end of each day to ensure that all the packages ‘on hold’ were in the Bond. The witness agreed that the HELD report should have picked up the fact that the June Missing Package was not in the bond but qualified her answer by stating that she was not an expert on Bond operations. Despite this, it was her evidence that the HELD report for 25 June should have identified that the package was missing if it was supposed to be in the Bond. The witness agreed that either the HELD report was not completed for 25 June, which would have been yet another mistake by an unknown person, or the package must have been in the Bond. 48 She also agreed to a third scenario which was that the report was completed and the package shown as missing but no-one took any action. It was her evidence that she had not seen the HELD report for 25 June.49

[102] Ms Monje-Altera was questioned about transhipments and agreed that a transhipment container was usually kept in the area of the depot where the Perth container sits. It was also her evidence that transhipments often came down the Adelaide/Perth chute (chute number 6). According to Ms Monje-Altera, although all packages now require scanning, it may have been that at 25 June that requirement had not been implemented for transhipment packages. Given those factors Ms Monje-Altera agreed that, hypothetically, what could have happened on 25 June is that when the Applicant was out of camera range he put one package in the Perth container and the other package in the transhipment container. 50

[103] When asked to give her opinion as to what the Applicant had done with the package while out of range of the CCTV cameras, Ms Monje-Altera conceded that she did not know but stated that by failing to scan the package the Applicant had breached operational procedures. 51

[104] Ms Monje-Altera agreed that the Applicant was out of camera range for about ten seconds and that it was unlikely that in that time he could have opened the box (which was secured with string and wax ‘blobs’) and hidden the contents. 52 The witness also agreed that there are a lot of CCTV cameras around the FedEx depot.

[105] In relation to the October Missing Package Ms Monje-Altera stated that it was her evidence that the Applicant deliberately tried to make the packages he threw land in the waste bin. She claimed that it was evident from the CCTV footage that he threw the two packages harder than he threw other packages. 53 It was also her evidence that during the 2 November 2010 interview the Applicant had acknowledged that he saw the package in the waste bin. She maintained her view that, on the basis of the CCTV footage and the Applicant’s responses at the interview, it was not an accident.54 She noted however that since the incident the bin had been moved from the side of the chute.55

[106] In relation to the breach of the FedEx locker policy and the matter of the knife Ms Monje-Altera denied being aware that FedEx employees brought cutting instruments to the workplace to assist them in their duties. When it was put to her that the evidence of Mr Wihongi and the Applicant was that knives were routinely taken to the workplace, she reiterated that this would be a breach of the policy. She noted that she had never been an operations agent.

[107] The witness conceded that there was no suggestion that the Applicant had ever viewed the DVDs found in his locker at the workplace or that any other employee knew they were there. She denied that the plastic bag found in the Applicant’s locker formed any part of the reasons for the termination of his employment. 56

[108] Ms Monje-Altera agreed that she had attended the security interviews held in September 2010 as the Applicant’s support person and had told the Applicant that she would make sure that he was not intimidated and was treated fairly. She conceded that she had not told the Applicant that she may make critical observations as a result of being present as a support person but stated that she believed she was entitled to her opinions. She agreed, however, that her observations were not helpful to the Applicant.

[109] When the witness was asked about the Applicant’s English skills she stated that she had had no difficulty communicating with him in her two years as his supervisor. She did not believe the Applicant could not understand Mr Canvin’s questions. He answered them stating that he could not remember.

[110] Ms Monje-Altera agreed that during the interview of 2 November Mr Wihongi had raised with her the fact that the Applicant had misunderstood one of her questions. She also conceded that this was an example of an instance where the Applicant had misunderstood the discussions due to his lack of English skills.

[111] It was Ms Monje-Altera’s evidence that the Applicant had been a good employee “until all this”.

[112] When the witness was re-examined she stated that the TWU representatives who had accompanied the Applicant to the November interviews had not raised any concerns in relation to the Applicant’s lack of English.

Applicant’s Submissions

[113] It was the Applicant’s submission that there was no valid reason for the termination of his employment as:

[114] It was put for the Applicant that a breach of policy does not, of itself, amount to a repudiation of the contract of service or striking down of one of its essential conditions and could not constitute serious misconduct or a valid reason for termination. Further, to the extent that the termination of the applicant’s employment was based on the contents of his locker (which were in no way connected to the disappearance of the June Missing Package, the underlying purpose of the locker search) the termination was unfair.

[115] It was also the case for the Applicant that the generalised reasons for termination given in the letter of termination left it open to Fair Work Australia to find that the Applicant had not been properly notified of the reasons for the termination of his employment and had not been given an adequate opportunity to respond to those reasons for the purposes of sections 387(b) and (c) of the Act. It was submitted for the Applicant that, if the contents of his locker were found to constitute a valid reason for the termination of his employment, Fair Work Australia should consider the proportionality of the termination as a response to the misconduct committed. It was put that, despite FedEx’s policies, the Tribunal must determine whether the dismissal was harsh, unjust or unreasonable, 57 and given the Applicant’s faultless employment record over a six year period the termination was disproportionate.

[116] With regard to the requirements of s.387(d) of the Act it was the submission for the Applicant that he was denied a support person for the September interviews regarding the June Missing Package, and that those interviews had serious implications. It was argued that that it was unreasonable of FedEx to refuse to afford the Applicant the benefit of a support person given that English is not his native tongue and he required assistance to properly participate in the interviews.

[117] So far as the size of the Respondent’s enterprise and the presence of dedicated human resource specialists were concerned, it was the contention for the Applicant that FedEx, a large multinational corporation with sophisticated HR practices and resources, should be held to the highest standards and Fair Work Australia should place great weight on any procedural deficiencies.

[118] Finally it was the Applicant’s position that he wished to return to work at FedEx. He contended that such an option was practicable despite FedEx’s stated belief that he had committed the misconduct alleged and that reinstatement was not appropriate.

Respondent’s Submissions

[119] The Respondent’s submissions canvassed the evidence before the tribunal, making a number of general remarks about that evidence. In particular it was noted that the Applicant’s witness statements filed in response to the respondent’s statements did not address portions of the evidence contained in those statements. It was also noted that when cross-examined the Applicant “frequently adopted the position that he had no recollection of various facts and circumstances” 58 and that this “alleged lack of recollection was also repeatedly expressed in circumstances where he had at his disposal the evidence of Mr Canvin and [Ms Monje-Altera]”.59

[120] According to the submissions of the Respondent the Applicant was an evasive witness, and it was argued that the evidence of the Respondent’s witnesses should be preferred over that of the Applicant where there were differences. Additionally it was argued that the “theories espoused by Mr Wihongi as to the First Package were of no assistance to Fair Work Australia and should be given little weight”. 60

[121] The Respondent relied on the letter of termination of 15 November 2010 for the explanation of the reasons for the termination, submitting that the tribunal should have regard to the full range of matters discussed with the Applicant during the formal interviews and meetings to determine the validity or otherwise of the termination of employment. Attention was also drawn to the statement made by Ms Monje-Altera at the meeting on 15 November 2010 (see [95] above) noting that the applicant had an opportunity to respond to the matters contained in that statement.

[122] At paragraph 31 of its final submissions the Respondent summarised the particulars of the reasons for termination as follows:

[123] Submissions put by the Respondent summarised matters admitted to by the Applicant in interviews and during cross-examination. These admissions went to his knowledge of FedEx procedure and policies. Also noted were the many responses given by the Applicant in which he claimed that he did not remember or recall certain events. It was submitted for the Respondent that these matters were evidence that the applicant had deliberately and knowingly breached FedEx policies and procedures and, where he was unable to recall events, that he was evasive, non-responsive and not truthful.

[124] In particular, the Respondent’s submissions put that, in the interview on 2 November 2010, the Applicant had admitted to Ms Monje-Altera that he had seen the October Missing Package in the waste bin, but had failed to pick it up thinking he would pick it up later.

[125] It was the Respondent’s submission that there was a valid reason for the termination of the Applicant’s employment and that the reason had amounted to serious misconduct. It was put that FedEx was entitled to terminate the Applicant’s employment as “a legitimate measure to enforce its policies and procedures with respect to important matters such as the handling of valuable parcels.” It was argued that the Applicant was afforded procedural fairness and, in the circumstances, it would not be open to the Tribunal to find that the termination was harsh.

[126] In addressing each of the criteria set out in s.387 of the Act the Respondent submitted that:

[127] The Respondent made no submissions concerning whether the size of the Respondent’s enterprise or the absence of dedicated human resource management specialists may have impacted on procedures followed in effecting the dismissal.

[128] It was argued for the Respondent that, in the event its case failed, reinstatement was not an appropriate remedy. The Respondent submitted that it had lost the trust and confidence in the Applicant central to the maintenance of the employment relationship.

[129] The position of the Respondent was that if it were to be decided to award compensation to the Applicant then any such award should take into account the fact that the Applicant had secured other paid employment and had engaged in misconduct which contributed to the termination of his employment. It was also submitted that any award of compensation should be further reduced given that it could not be assumed that he would have continued in employment given his non-compliance with the employer’s policies and the Applicant’s period of service (6 years 2 months).


[130] There is no question in this matter that the applicant is a person protected from unfair dismissal for the purposes of s.382 of the Act. In determining whether the dismissal was unfair I must have regard to those matters set out in s.387 of the Act.

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

[131] The Respondent submitted that there were four reasons for the Applicant’s termination, which may be summarised as follows:

[132] So far as the Applicant’s involvement in the disappearance of the June Missing Package is concerned I have, after a very thorough review of all the evidence and having viewed the relevant CCTV footage at least ten times, reached the following findings:

[133] Having reviewed all of the evidence relating to the October Missing Package, including watching the CCTV footage many times, I make the following findings:

[134] The Applicant accepts that the presence of certain items in his locker breached the employer’s locker policy. In my view, however, the Applicant’s explanation for the presence of the knife was credible. There being no other evidence which suggested that the knife was in the locker for any other purpose, such as any evidence of violent tendencies on the Applicant’s part, it is my view that the employer should have accepted the explanation and dealt with the policy breach by way of a warning. In reaching this conclusion I have accepted the evidence of Mr Wihongi that other operators possessed personal cutting implements for dealing with packaging. Similarly, the benign possession of the DVDs warranted, at most, a warning.

[135] In relation to the possession of the plastic bag purportedly from ‘Gold Buyers’, there was no breach of the locker policy. The Applicant’s explanation for the presence of the bag, if any explanation were required, was credible. Clearly Mr Canvin’s enquiries of the shop which supplied the bag gave rise to nothing to refute the applicant’s explanation. It is, however, of some concern to me that Mr Canvin seems to have neglected to include in his statement of evidence those parts of his investigations which may have served to assist the Applicant’s case and only revealed them under cross-examination.

[136] The locker search was carried out on 30 August 2010. On that date the employer was aware that the Applicant was in breach of the locker policy. No action was taken to terminate the Applicant’s employment as a result of the breach and, as already noted, in my view a warning would have been the only justifiable action that could have been taken in all the circumstances.

[137] I do not accept the employer’s contention that the Applicant was less than truthful in his responses during the investigations. I found the Applicant’s responses during the hearing both credible and honest. I have listened to the tapes of the interviews held with the Applicant in September and I am satisfied that there is no reasonable basis for a finding that the Applicant was either dishonest of evasive. I find it unreasonable that Mr Canvin would expect the Applicant to remember what he did with one particular package almost 12 weeks earlier than the date he was asked to recall. That he would expect this of a man who had dealt with thousands of packages over the intervening period is nothing short of incredible. Nor do I consider that the Applicant’s memory should have been jogged by the CCTV footage. The idea is absurd. The Applicant was clearly stressed, and understandably so, by the interview process where he was denied representation and in circumstances where he was at a disadvantage due to his English language skills, and being asked to recall something of which he, again understandably, had no memory.

[138] In my view, there was no valid reason for the termination of the Applicant’s employment. He should have received a warning about the locker policy and, at its highest, the mishandling of the October package was a mistake that may have warranted a separate warning. In light of his otherwise clean record over six years of service nothing further could be justified. In my view neither breach was deliberate or egregious.

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

[139] It is difficult to conclude that the Applicant was clearly notified of the reasons for the termination. As late as the November interviews he was being assured that his employer did not accuse him of stealing the missing packages. This is disingenuous on the employer’s part. Clearly the Applicant was accused of “involvement” in the disappearance of the June Missing Package. Additionally, the employer had concluded that his role in the loss of the October Missing Package was both deliberate and wilful. It was put to him, however, that he was being terminated for improper handling of packages as well as the breach of the locker policy. That he was accused of dishonesty and a lack of responsiveness in his answers to questions during the investigations is an indication that the real reason for his termination was the employer’s view, apparently fostered by Mr Canvin, that he was dishonest in his dealings with the missing packages.

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

[140] In my view the interviews conducted in September could not be considered as opportunities for the Applicant to respond to the employer’s allegations about his conduct. He was afforded more of an opportunity in November when he was allowed to be represented by his union. In my view the opportunities provided, given the Applicant’s lack of English, were less than ideal. I have no doubt that the Applicant’s poor English skills and the stressful situation impeded his ability to properly put a response to the employer. It is also unfortunate that his union representation was not consistent at the two November interviews, as he may have been assisted by continuity in this regard.

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

[141] I take the view that the September security interviews were an integral part of the process leading to the Applicant’s termination and that he was unreasonably refused the assistance of a support person from his union during those interviews. In light of the Applicant’s demonstrated lack of proficiency in the English language I consider this denial particularly serious.

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

[142] Although the Applicant was supposedly dismissed for reasons related to his failure to follow procedures in dealing with packages, it is my view that the only warning he was properly given in relation to this matter was contemporaneous with his dismissal. I do not consider the interview process conducted in September could reasonably be considered (as was suggested by the employer) a warning about failing to follow procedures in handling packages. As already noted there was no credible evidence of any failure on the Applicant’s part to properly handle packages prior to 19 October 2011.

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

[143] The Respondent claimed no concession in relation to the size of the enterprise. I would have expected, given the size of the employer’s enterprise, that the investigation conducted would have been of a better quality and the procedures adopted more fair to the Applicant than was the case.

Section 387(g): The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[144] The employer sought no concession due to any lack of human resources expertise, but I repeat my view that more could have been expected from an employer with dedicated human resources management specialists than was demonstrated in this matter.

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

[145] The only matter not covered above that I have had regard to in this matter is the Applicant’s unblemished record of employment with the company.


[146] As is probably clear from my findings on the evidence I have reached the conclusion that in all the circumstances of this case the termination of the Applicant’s employment was both unjust and unreasonable.


[147] The applicant seeks reinstatement. The employer opposes reinstatement on the basis that the necessary trust in the applicant required for an employment relationship to exist has been lost. In my view there is absolutely no reason why the employer should have lost any trust in the Applicant. The only matter I find surprising is that the Applicant seems not to have lost all trust in his former employer, given the treatment afforded to him by that employer from August to November 2010.

[148] I have decided not to make an order as to remedy until I am satisfied that reinstatement continues to be sought by the Applicant. If the Applicant’s representative notify me that reinstatement remains the Applicant’s preferred option then an order for reinstatement will be made, with full continuity of service and payment of remuneration lost during the period between the termination and reinstatement.

[149] If, upon further reflection, the Applicant no longer seeks reinstatement, it is my intention to award the maximum amount of compensation available under the Act, calculated on the basis that no discount is necessary in respect of any misconduct on the part of the Applicant and that there is no reason why, had the Applicant not been unfairly dismissed, he would not have continued to work for FedEx for another 10 years. A short decision will accompany the order whether it is for reinstatement or for compensation.



Mr Nick McIntosh, Transport Workers Union, on behalf of the Applicant.

Mr Paul Brown, Baker & McKenzie, on behalf of the Respondent.

Hearing details:

March, 17.
April, 7.
April, 8.

Written submissions:

Applicant: 6 May 2011 & 31 May 2011.
Respondent: 23 May 2011

 1   Transcript PN468. See also Transcript PN19, PN115, PN233 and PN310 where the danger of prejudice to the Applicant and / or the possibility of adjournment was addressed.

 2   Paragraph 34 of the Respondent’s Final Submissions and paragraphs 13-17 of Exhibit F1 (Statement of Mr Dale Canvin).

 3   Paragraph 19 of Exhibit L1 (Statement of Mr Robby Lankam) and paragraphs 19-21 of Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 4   Attachment RL1 to Exhibit L1 (Statement of Mr Robby Lankam).

 5   Exhibits L1 (Statement of Mr Robby Lankam) and L2 (Statement in Reply of Mr Robby Lankam).

 6   See paragraphs 18-19 of Exhibit L1 (Statement of Mr Robby Lankam) and paragraphs 9-11 of Exhibit L2 (Statement in Reply of Mr Robby Lankam).

 7   Paragraph 29 Exhibit L1 (Statement of Mr Robby Lankam).

 8   Ibid, Attachment RL2.

 9   Paragraph 2 of Exhibit L2 (Statement in Reply of Mr Robby Lankam).

 10   PN128.

 11   PN140.

 12   See PN139 and Attachment MA11 to Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 13   PN174.

 14   Transcript PN174 - PN180.

 15   See Transcript PN194 and paragraph 40 of Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 16   Transcript PN202.

 17   Transcript PN237.

 18   Transcript PN328-PN332.

 19   Exhibits L3 (Statement of Mr Pere Wihongi) and L4 (Statement in Reply of Mr Pere Wihongi).

 20   Paragraph 11 of Exhibit L3 (Statement of Mr Pere Wihongi). In cross-examination Ms Monje-Altera conceded that the bins had been moved further away from chutes and that this action was taken at least in part due to the disappearance of the October Missing Package. See Transcript PN1956-PN1961.

 21   Paragraph 11 of Exhibit L4 (Statement in Reply of Mr Pere Wihongi).

 22   Transcript PN1353.

 23   Transcript PN2164-PN2174.

 24   Exhibit F1 (Statement of Mr Dale Canvin).

 25   Paragraph 26(l) of Exhibit F1 (Statement of Mr Dale Canvin).

 26   Ibid, paragraph 27.

 27   Ibid, paragraph 34.

 28   Ibid, paragraph 54.

 29   Ibid, paragraph 61.

 30   See Transcript PN1380-PN1418 for the entire line of questioning.

 31   Transcript PN1407.

 32   See Transcript PN1440-PN1488 for the relevant line of questioning.

 33   Transcript PN1495.

 34   See Transcript PN1505-PN1543 for the relevant line of questioning.

 35   Transcript PN1544-PN1545.

 36   Transcript PN1556.

 37   Transcript PN1568.

 38   See Transcript PN1569-PN1575 for the relevant line of questioning.

 39   Transcript PN1582-PN1583.

 40   Transcript PN1605-PN1606.

 41   Transcript PN1617-PN1668 for the relevant line of questioning.

 42   Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 43   See paragraph 36 of Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 44   See Ibid, paragraph 40.

 45   Paragraph 42 of Exhibit F2 (Statement of Ms Mary Cristaine Monje-Altera).

 46   See Transcript PN1752-PN1782 for the relevant line of questioning.

 47   Transcript PN1783.

 48   See Transcript PN1833-PN1838.

 49   Transcript PN1840 and PN1842.

 50   Transcript PN1868.

 51   See Transcript PN1876, PN1880 and PN1881.

 52   Transcript PN1913.

 53   Transcript PN1933.

 54   Transcript PN1935.

 55   Transcript PN1957.

 56   See Transcript PN1995-PN2000.

 57   M.Wake and Queensland Rail (U2006/4054, PR974391, 19 October 2006).

 58   Paragraph 16 of the Final Submissions of the Respondent.

 59   Ibid.

 60   Paragraph 17 of the Final Submissions of the Respondent.

 61   Transcript PN331.

 62   CD Rom with surveillance footage attached to Exhibit F1 (Statement of Mr Dale Canvin). See also paragraph 54 of Exhibit F1 (Statement of Mr Dale Canvin).

Printed by authority of the Commonwealth Government Printer

<Price code G, PR514479>