| [2015] FWC 8185 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Thomas Vernham
v
Jayco Corporation Pty Ltd T/A Jayco
(U2015/3766)
COMMISSIONER CRIBB |
MELBOURNE, 8 DECEMBER 2015 |
Application for relief from unfair dismissal.
[1] Mr Thomas Vernham (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act), in relation to the termination of his employment by Jayco Corporation Pty Ltd T/A Jayco (the Respondent, Jayco, the company).
[2] A telephone conciliation conference took place on 31 March 2015 but the matter was not ultimately settled. There was a hearing of the witness evidence on Monday 20 July 2015.
[3] Mr Vernham gave evidence as did, for the company, Ms Konstance Tsantis, Senior Human Resources/Work Health and Safety Advisor and Ms Donna Paxton, Human Resources Manager.
[4] Written closing submissions were filed by Mr Vernham on 18 August 2015 and by the company on 3 September 2015. Submissions in reply were filed by Mr Vernham on 17 September 2015.
1. Witness Evidence
(a) Mr Vernham (the Applicant)
[5] Mr Vernham provided a Statement of Evidence together with a bundle of documents which were partly listed in a document list. 1
[6] In his written statement, Mr Vernham detailed a range of health and safety issues which had occurred mainly from 2009 onwards. 2 These issues commenced with the design of the site, without consultation with the employees.3 In addition, the tyres on the forklift he drove were changed from cushion tyres to solid tyres. This was said to have resulted in his injury. 4 It was recalled that, in around October 2013, he was advised that there would be a comparative trial of a cushion forklift tyre versus a solid tyre.5 Further, Mr Vernham recounted that, around October 2013, the Jtech independent suspension system was introduced without employee consultation. This had resulted in a significant increase in his workload (a tripling of it).6
[7] It was stated by Mr Vernham that QBE (the company’s insurer) had accepted his physical injuries’ WorkCover claim but rejected his claim for stress injuries. Mr Vernham indicated that QBE acknowledged that the stress was caused by his workplace. Mr Vernham believed that the company, as well as QBE, was in possession of medical reports in November 2014 which outlined the stressors he was experiencing. 7 It was recounted by Mr Vernham that, despite all of this medical evidence, QBE was seeking to return him to the workplace.8 Further, Mr Vernham explained that, despite QBE having accepted his physical injuries’ claim, the company was continuing to pay him from his leave entitlements.9
[8] All of these events were stated to be occurring in the context of the bullying and discrimination allegations that Mr Vernham had made which the company was said to have been well aware of. 10 It was recalled that he had a meeting with Mr Ryan (on 24 August 2014) during which he raised these issues and that of the nature of the workplace culture at the company.11 He agreed that this meeting was when he was off work but said that that was the date when the meeting occurred.12 Mr Vernham recalled that he had also attempted to raise the issue of indirect bullying. This was said to have been in the form of the introduction of changes without consultation which overloaded him in terms of his workload.13 Mr Vernham explained that Mr Vigilante had attempted to raise the issue of him being overworked with Mr Edwards and Mr Ryan and that he, himself, had attempted to raise it with Ms Paxton who had agreed to have a meeting.14
[9] Mr Vernham’s evidence was that, by 20 November 2014, as a result of all of these pressures, he was suicidal. 15 He stated that Ms Bonavia had contacted his doctor and put the Critical Alert Team (CAT) on notice and that the psychologist had come to him but that the CAT team was not required to attend.16 It was said that it was in this “state of suicidal contemplation and depression”17 that he sent the email to Ms Bonavia. Mr Vernham also stated that:
“I was considerably fearful of what may occur should further attempts be made to return me to work at Jayco.”
[10] It was recounted by Mr Vernham that the company had apparently received an anonymous phone call in January 2015. He believed that Ms Paxton had used this call as a catalyst to request the emails he had sent to Ms Bonavia so that they could take them to the police. Mr Vernham indicated that he had gained this understanding during his interview with the police who told him about the phone call. Mr Vernham stated that, at this point in time, he had none of the information that the company had about exactly who the person was who had called. It was said to have been the police officer who had interviewed him who told him who the caller was. 18
[11] In relation to the company’s contention that it decided not to contact him directly, Mr Vernham stated that the company had the ability (as did their insurer) to contact him and/or his doctor. It was recalled that Ms Bonavia had attended a meeting with him in November 2014. 19 Mr Vernham explained that he had ceased direct communication with QBE and the company in December 2014 because it had become so stressful with the phone calls and the anxiety - which had caused him to become suicidal in November 2014.20
[12] It was argued by Mr Vernham that the company (and QBE) knew that he was in a suicidal/anxiety space because Ms Tsantis was present at the initial WorkCover conciliation meeting on 14 November 2014. He disagreed with the company’s assertion that Ms Tsantis was not in the room when this information was discussed. This was on the basis that the company was referring to the conciliation meeting held in 2015 over return to work issues, rather than the meeting on 14 November 2014 which was in relation to the rejection of the stress claim. 21 Mr Vernham explained that, during that meeting, his psychologist and doctor provided information about his mental health. Mr Vernham indicated that, in the medical practitioner questionnaire from Ms Borsi (his initial treating psychologist), Ms Borsi had indicated that it was Post Traumatic Stress Disorder (PTSD).22
[13] It was Mr Vernham’s belief, but he was unable to establish for certain, that the company had the same medical information about him that QBE did. 23 He stated that he did not see a copy of Ms Borsi’s medical practitioner questionnaire being given to the company. It was conceded that it may well be an erroneous presumption.24 As well, Mr Vernham highlighted the report from another psychologist (Ms Tan).25
[14] Mr Vernham indicated that there had been ongoing communication (emails and phone calls) with QBE that his WorkCover payments would be terminated. It was stated that the catalyst for his meltdown (the two emails) was an email from Ms Bonavia on 21 November 2014 which advised him that QBE was unable to make the payments as they were waiting for clearance from Centrelink. Mr Vernham explained that there was an obligation to start WorkCover payments within a set period of time but that he was not receiving them. It was stated that he was getting paid because he had requested to be paid his sick leave, annual leave etc. However, his long service leave was said to run out in December 2014 and Centrelink had told him that, as he had been receiving compensation payments, he was ineligible to receive Centrelink payments in December 2014. 26 Mr Vernham stated that:
“In effect, I felt cornered.” 27
[15] It was Mr Vernham’s understanding that the company knew that he was not receiving his WorkCover payments as it was Jayco who made the payments. However, Mr Vernham also indicated that he was unsure as to whether Jayco would be reimbursed by QBE or whether the payments came from QBE. It was explained that the email was specifically directed to QBE and not to the company but that he had bound them together due to his state of mind. Mr Vernham said that, in his email, he had referenced his marriage; Jayco employees who had discriminated and bullied him and QBE’s failure to take into account psychological issues when forcing him to return back into that environment. 28
[16] Mr Vernham explained that the email was, in effect, a call for help on the basis that putting him back at the company could lead to a point of diminished responsibility. Mr Vernham stated that, at the time, he was faced with financial ruin as well as physical injuries and stress and a marriage breakdown. The result of all of this was said to be that he was under considerable stress. 29
(b) Jayco
(i) Ms Konstance Tsantis
[17] Ms Tsantis is the Senior Human Resources/Work Health and Safety Advisor with the company. Ms Tsantis provided a written witness statement 30 and also gave oral evidence. It was Ms Tsantis’ evidence that:
(ii) Ms Donna Paxton
[18] Ms Donna Paxton is Human Resources Manager for the company. Ms Paxton provided a written witness statement 60 and also gave oral evidence.
[19] It was Ms Paxton’s evidence that:
2. Submissions
(a) Mr Vernham
[20] It was submitted by Mr Vernham that his dismissal was unfair because:
Valid reason
[21] Mr Vernham stated that it was an agreed fact that, on 21 November 2014, he sent two emails to Ms Bonavia. It was said to be further agreed that, particularly the email of 21 November 2014 at 9:29pm, contained distressing and inappropriate content. Mr Vernham conceded that this particular email, which contained allusions to violence towards members of Jayco staff, amounted to misconduct and was a valid reason for his dismissal. 85
Harsh, unjust or unreasonable
[22] However, it was submitted that the termination was harsh, unjust and unreasonable as the company failed to take into account mitigating factors and that it was procedurally unfair. 86
(i) Harsh
[23] Mr Vernham stated that, at the time the emails were sent, he was in a poor psychological state. It was said that the company was aware that he had problems with stress as he had lodged a workers compensation stress claim on 6 September 2015. That he was suffering from mental health problems was noted by Ms Paxton during the meeting on 15 September 2014. As well, the company had been notified that he was suicidal by Ms Bonavia on 24 November 2014 and that he was suffering from stress and anxiety. It was stated that the company also knew that he had marital problems at the time. 87
[24] In response to the company’s contention that he did not believe that he was suffering from mental health problems at the time of his dismissal, Mr Vernham contended that the company maintained this view despite three things. The first one was that the company knew that he had lodged a workers compensation stress claim. Secondly, Ms Paxton was aware that he was not “in a good place” and thirdly, that Ms Tsantis had been advised by QBE in November 2014 that he was suicidal and, in December 2014, that he was suffering from stress and anxiety. It was stated by Mr Vernham that, given that the company was in possession of this information, the company must have been aware that he was suffering from a mental health problem. 88
[25] Mr Vernham argued that, despite having been told or having observed that he was suffering from mental health problems, the company made no attempt to enquire as to whether his deteriorating mental health had contributed to his decision to send the two emails. It was also contended that no effort was made by the company to enquire as to whether his mental health situation had changed between sending the emails and the date he was dismissed. 89 Mr Vernham indicated that, if the company had made such an enquiry, they would have found out that he had been in continuous treatment, since November 2014, for what is likely a post-traumatic stress disorder.90
[26] It was stated by Mr Vernham that his illness was serious. Reference was made to Dr Tan’s diagnosis. 91 Further, it was observed that Mr Vernham’s dismissal occurred almost 3 months after the emails were sent. Mr Vernham stated that the company had no reliable information on which to suggest that he had engaged in any misconduct between sending the emails and the date of his dismissal. Rather, it was contended that the information before the company suggested that his conduct was an aberration and should have been treated as such.92 It was stated that, if the company had enquired, they would have discovered that he had commenced treatment with Dr Tan on 22 November 2014 (the day after he sent the emails in question).93 Mr Vernham submitted that his mental illness was intrinsically linked to his conduct and had been referred to in the emails in question.94
[27] In support of the contention that an employer must take into account significant mitigating factors in making the decision to terminate an employee, the Commission was referred to a Full Bench of the New South Wales Industrial Commission’s decision in Fire Brigade Employees’ Union of New South Wales (on behalf of Brendan O’Donnell) and Fire and Rescue 95 (O’Donnell). Also highlighted was the Fair Work Commission’s decision in Salazar v John Holland Pty Ltd.96 In both cases, it was argued that it was found that mental ill-health was a mitigating factor that was to be taken into account. It was stated that both Commissions, in doing so, had determined that the applicant’s dismissal in each case was harsh, unjust or unreasonable.97
[28] With respect to the company’s contention that the O’Donnell case is not relevant as his (Mr Vernham’s) mental health condition was not solely caused by his work, Mr Vernham highlighted that, in O’Donnell, the dismissal was found to be harsh because the conduct was aberrational and caused by a reduce mental capacity to deal with stressful situations. It was stated that, in this case, his misconduct was caused by his diminished capacity to deal with a stressful situation and that it was an aberration. It was said to have occurred only once, in an email to QBE, and that there was no further contact between himself and the company, following the email. 98
[29] Further, Mr Vernham disputed that the company’s contention that his misconduct was not aberrational on the basis that he had made threats on at least two occasions three months apart. It was stated that this assertion was based on the claim that a person, known only as “Kathy”, had stated that he had made threats other than those contained in the email of 21 November 2014. This evidence was said to be hearsay evidence as this person did not give evidence before the Commission and the company did not provide detailed evidence about precisely what was said and in what context. Therefore, Mr Vernham argued that this evidence should not be considered. Or, in the alternative, no weight should be given to it on the basis that it is vague and insubstantial. 99 The fact that the company denied him the opportunity to provide medical evidence at the time of his dismissal yet the claims made by “Kathy” informed the basis of the company’s decision to terminate his employment, was said to be unreasonable. In addition, it was stated by Mr Vernham that the statements made by “Kathy” were never put to him at the time of his dismissal.100
[30] Mr Vernham contended that the company had completely ignored the issue of his mental health and had not had regard to it as a mitigating factor. This was said to be in the context of him not having a history of such conduct prior to 21 November 2014. 101 Therefore, the company’s failure to consider his mental health was said to render the dismissal harsh.102
[31] In his Submissions in Reply, Mr Vernham stated that there are reports before the Tribunal from Ms Borsi, Dr Das, Dr Chia and Ms Chan which expressed opinions about his mental health. These were said to indicate that he was suffering from a mental illness during the period leading up to his dismissal, including at the time of the misconduct. 103
(ii) Other mitigating factors
[32] It was also submitted that other mitigating factors included:
(iii) Procedurally unfair
[33] Mr Vernham argued that he was denied procedural fairness by the company when he was not provided with an opportunity to put significant mitigating factors to the company prior to the final decision to terminate his employment. 105
[34] This was said to be on the basis that:
[35] Mr Vernham did not accept the company’s contention that there would have been “no acceptable explanation” for his conduct. Rather, it was argued that his mental health problems were a significant mitigating factor. The failure to take account of such factors was said to be a requirement of procedural fairness. 107
(b) Jayco
[36] Jayco stated that Mr Vernham’s employment was summarily terminated by letter dated 17 February 2015. It was explained that the delay in dismissing Mr Vernham was not a result of the company not considering that time was of the essence. 108 The delay in dismissing Mr Vernham was due to, amongst other things, QBE (the company’s insurer) not providing the email correspondence in question to the company until December 2014; the company awaiting confirmation of advice from QBE about whether Jayco could terminate Mr Vernham’s employment whilst he was on WorkCover; the Christmas shutdown; the HR Manager being away on leave and the company being in the process of obtaining legal advice about how to deal with the threats.109
[37] It was submitted by Jayco that there was a valid reason for the dismissal of Mr Vernham on the basis of serious misconduct. 110 This was due to Mr Vernham having admitted sending the emails (which contained threats to harm others in the workplace) on 21 November 2014 to Ms Bonavia at QBE and the content of a telephone call the company received from “Kathy” on 22 January 2015. “Kathy” was said to have expressed concerns regarding threats made by Mr Vernham to commit suicide and to kill Jayco staff. “Kathy” was also recalled to have questioned the genuineness of Mr Vernham’s WorkCover claim.111 The company further stated that, upon receiving the call from “Kathy” which suggested that Mr Vernham remained homicidal, the company felt that it could no longer ignore the initial threat despite the WorkCover process and that it needed to act, to protect the health and safety of its staff. The continuing nature of the threats was said to have further raised the company’s alarm level.112
[38] Jayco argued that, on any objective assessment, there was a real likelihood that Mr Vernham was capable of, and intended to, carry out the threats to harm others in the workplace. Jayco was stated to have relied on the advice and notification from QBE that Mr Vernham posed a real threat since QBE was fully aware of Mr Vernham’s health status. The company, itself, was said to have had limited knowledge of Mr Vernham’s psychological state so had relied on the information and concerns raised by the insurer. 113
[39] It was recounted by the company that the threats were viewed so seriously that a complaint was made to the police. Following the Applicant’s dismissal, criminal charges were laid against Mr Vernham and Mr Vernham was required to enter a Diversion Plan, having pleaded guilty. 114 It was argued that Mr Vernham’s misconduct created an apprehension of real harm to the company and its employees and that Jayco has a responsibility to provide a safe workplace for its employees.115
[40] Mr Vernham’s conduct was said to meet the definition of “serious misconduct” set out in the Fair Work Regulations 2009, which, therefore, amounted to a valid reason for Mr Vernham’s dismissal. 116
[41] The company vigorously refuted the contention that it had denied Mr Vernham procedural fairness by failing to provide him with an opportunity to respond to his termination and by failing to take into account his mental health problems. The Commission was referred to a decision by Sams DP in McGrath and Anor v Sydney Water Corporation 117 where it was held that any issues of procedural unfairness may not be of such significance so as to outweigh the gravity of the proven misconduct.118
[42] It was argued by the company that the evidence before the Commission, regarding Mr Vernham’s mental health condition, is inconclusive. This was on the basis that the medical reports tendered are inconsistent in terms of the nature and cause of Mr Vernham’s mental health problems and his diagnosis. It was recounted that QBE, in assessing Mr Vernham’s WorkCover claim for work-related stress, rejected his claim on the basis that his work-related stress arose from reasonable action taken in a reasonable manner by the company. The company also said that Mr Vernham bears the onus of proving that he had a mental illness at the time of the misconduct and that he has not discharged this onus satisfactorily. 119
[43] The company denied that it had knowledge that Mr Vernham was suffering from a recognised mental illness at the time of his dismissal. This was on the basis that it did not have access to any of Mr Vernham’s medical information that may have been available to its insurer, QBE. Further, at the WorkCover conciliations attended by the company, the company was not privy to any medical information that the insurer may have had in relation to Mr Vernham. Finally, at the conciliation on 1 June 2015, the company’s representative was not present in the same room as Mr Vernham given her fear of him. 120
[44] It was submitted by the company that it was told that Mr Vernham had some personal hardships and that he was going through a stressful period in his life. However, it was submitted that this did not in any way amount to the company having knowledge of a diagnosed or diagnosable medical illness, let alone one which would justify it not taking seriously Mr Vernham’s threats to kill. Further, the company understood that Mr Vernon’s alleged stresses related to the rejection of his WorkCover claim and not a mental illness. It was acknowledged that the company was notified, by Ms Bonavia on 24 November 2014, that Mr Vernham claimed to be suicidal. This was said to have been in the context of QBE’s refusal to accept his stress claim. It was contended that this was evidence only of Mr Vernham’s anger about the rejection of his claim and not evidence that the company was aware that Mr Vernham was suffering from a mental illness. In addition, it was stated that Mr Vernham’s second email on 21 November 2014, did not provide actual evidence of any mental illness. 121
[45] Jayco submitted that Mr Vernham was provided with a letter of termination which therefore satisfied the requirements of section 387(b) of the Act. 122 With respect to whether Mr Vernham was given an opportunity to respond to the allegations, the company argued that there would be no acceptable explanation for Mr Vernham’s conduct. This was said to be particularly so as the conduct was further corroborated by a third party known to the Applicant some two months after he had sent the email. It was further contended that, even if a meeting had occurred, there would be no possible circumstances which would mitigate Mr Vernham’s actions.123 The company argued that, even if Mr Vernham had been given an opportunity to explain his conduct, this would not have changed the outcome, given the seriousness of the conduct and the real and significant risk it presented to the safety of its staff. It was stated that the company has an overarching obligation to ensure the health and safety of its employees. Therefore, the company had no other option but to terminate Mr Vernham’s employment as quickly as possible.124
[46] As there were said to be genuine concerns for the safety of the company’s employees and given the seriousness of the threats, any interaction with Mr Vernham was deliberately limited. 125
[47] It was stated by the company that it was genuinely concerned that Mr Vernham would carry out his threats. This had resulted in Ms Paxton reporting the conduct to the police and the company took additional security measures to ensure the safety of its staff. 126
[48] Further, Jayco contended that Mr Vernham has not denied the behaviour nor disputed that the threat was serious. That Mr Vernham had subsequently pleaded guilty to charges associated with the incident was said to support the company’s contention that it was entitled to consider that the threat was serious. This was also stated to mean that the company could take any appropriate action to protect its employees. 127
[49] The company also rejected the suggestion by Mr Vernham that a number of additional matters explained the misconduct. It was stated that these matters were irrelevant and did not diminish the severity of the misconduct. 128
[50] It was not disputed by the company that mental illness should be taken into account as a mitigating factor, both in making the decision to dismiss an employee and in assessing harshness. Even if the company had been aware that Mr Vernham was suffering from a mental illness, it was argued that the company’s overriding obligation was to protect the health and safety of its staff. 129
[51] In relation to the O’Donnell case, it was submitted that this case is distinguishable from the facts of this matter on the following basis:
3. Considerations and conclusions
(a) Legislative requirements
[52] Section 387 of the Act sets out the requirements for determining whether or not the dismissal was harsh, unjust or unreasonable. It is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[53] I will deal with each of the requirements in turn.
Section 387(a) - valid reason
[54] Mr Vernham was summarily dismissed by the company on 17 February 2015 for serious misconduct as a result of having made threats against Jayco and its employees. 134 These threats were contained in two emails sent by Mr Vernham to Ms Bonavia of the company’s insurer (QBE), on 21 November 2014.
[55] The two emails are as follows:
“I believe that QBE and Jayco are behaving in an unreasonable manner by not taking into consideration the psychological conditions and noted stress and anxiety are really communicated by medical professionals already in this matter.
Jayco and QBE will therefore be held accountable for any continuance of this behaviour and outcomes that may result because of their unreasonable actions on both a Corporate and individual level.” (7:53pm on 21 November 2014) 135
“Further to my last message, Being as Jayco have so little regard to the health and safety of their employees including managers, by all means to everything you can to put me back in there, why should I care really! What an opportunity! I mean ,my health is gone, all due to Jayco’s neglect to follow OHS laws, I do have all of the Statements of the lies and fabrication against me, of those whom have discriminated, bullied, victimised me. I have had to spend all my time at Jayco being hypervigilant, due to the failing to consult even with the original design then again with building 6 without giving a stuff about the effect it would have on my health and welfare, ditto the introduction of J-tech suspension and then changing my tyres.
Why not give someone else a turn to always be looking over their shoulders for a change!
I am not responsible for their health and safety Jayco is and we know it is all about the money and Glory for Gerry not the welfare of the employees.
I am sure they won’t include a risk assessment based on past history. I mean what is the worst that could happen, I go “postal” due to psycho social stress and start taking out those people that have hurt me! No loss really.
Then what. It ends up in the media, I go to prison.
works, what else free room and board, TV, Internet
You tell me.” (9:28pm on 21 November 2014) 136
[56] Mr Vernham did not dispute that he had sent the two emails above to Ms Bonavia of QBE. It was common ground between the parties that the second email particularly, contained content that was inappropriate and distressing. Mr Vernham conceded that the second email, which contained allusions to violence towards Jayco staff, amounted to misconduct and was a valid reason for the termination. 137 As set out above, the company was clearly of the view that Mr Vernham’s conduct in sending the emails was serious misconduct which constituted a valid reason for his dismissal.
[57] Section 387(a) of the Act requires the Commission, itself, to decide whether there was a valid reason for Mr Vernham’s dismissal. The view was expressed to Mr Vernham, by the Commission during the hearing, that the (second) email was highly inappropriate and that, for anyone in a workplace to receive an email like that is pretty terrible. 138 Having considered all of the evidence before me, I confirm that view. I find that Mr Vernham’s actions in sending the two emails (particularly the second one) to Ms Bonavia on 21 November 2014, constituted serious misconduct warranting summary dismissal. This is on the basis that the second email contained threats of physical violence towards company employees. Therefore, I am satisfied that there was a valid reason for the dismissal.
Sections 387(b) and (c) - notified of the reason and opportunity to respond
[58] It was submitted by Mr Vernham that his dismissal was procedurally unfair on the basis that the company did not provide him with an opportunity to respond to the reasons for his dismissal. It was argued that this would have allowed him the opportunity to put to the company various matters which he believed to be mitigating factors, which should have been taken into account in making the decision to dismiss him. The chief matter that he should have been able to put to the company, was that of his mental illness.
[59] On the other hand, the company argued that Mr Vernham was provided with a letter of termination. Secondly, it was contended that there would be no acceptable explanation for Mr Vernham’s conduct and that Mr Vernham’s conduct was fully corroborated by a third party, known to Mr Vernham, some two months later. In addition, it was submitted that Mr Vernham had admitted to making the threats in question so that therefore, there was never any question as to whether or not the threats were made. Further, the company submitted that there were genuine concerns for the safety of the company’s employees, including members of the Human Resources team. Therefore, any interaction was limited, given the seriousness of the threats and the genuine concerns held by the company that Mr Vernham would carry out his threats to kill. It was considered by the company that, even if a meeting had occurred, there would be no possible circumstances that would mitigate Mr Vernham’s actions. 139
[60] It was common ground that the Company sent Mr Vernham a letter in the post, dated 17 February 2015, dismissing him from his employment. The letter stated that:
“We have recently become aware that you made threats against Jayco Corporation and its employees. We are treating such threats seriously.
These threats constitute assault and serious misconduct. As such your employment is hereby terminated, immediately and without notice.” 140
[61] Further, it was also common ground that Mr Vernham was not afforded an opportunity to respond to the reasons for his dismissal, either before or after he received the letter. One of the reasons put forward by the company for this was that, as the threats had mainly been in writing, terminating Mr Vernham’s employment in writing was appropriate. The company’s main contention, though, was that, even if an opportunity to respond had been provided, there would not have been a reasonable explanation.
[62] It is clear from the evidence that Ms Tsantis was profoundly affected by the contents of Mr Vernham’s emails.
[63] However, it is my view that the company’s contention that there would not have been a reasonable explanation, even if the opportunity had been provided, is not an acceptable reason or justification for not providing that opportunity. The company could not have known what Mr Vernham was going to put forward and so were not in a position to pre-judge the outcome of having provided Mr Vernham with that opportunity. In addition, there was no necessity for Ms Tsantis to have attended the meeting and there were options available to the company other than Mr Vernham attending a meeting at the site. The company’s solicitor’s office could potentially have been used for the meeting.
[64] There had been no contact by the company with Mr Vernham directly since December 2014. Mr Vernham had requested that there no longer be any direct contact with him, but rather, it should be through his solicitor. However, between receipt of the emails in early December 2014 and the date of Mr Vernham’s dismissal, the company seems to have been very busy discussing Mr Vernham’s emails with other parties but not with Mr Vernham. Evidence was given that the company was in discussions with Ms Bonavia at QBE, the police and the company’s solicitors.
[65] Therefore, at the time Mr Vernham was advised by letter that he was dismissed, he was unaware that:
[66] With respect to the anonymous phone call from “Kathy”, it was stated by the company that the contents of the telephone call formed part of the decision making process to dismiss Mr Vernham. However, there is no evidence before me that an attempt was made to independently check and corroborate what “Kathy” had allegedly said. It seems to have simply been taken to be truthful and was used to confirm that what Mr Vernham had said in his emails was true. This was despite the call from “Kathy” being two months after Mr Vernham's emails and in the absence of any action by Mr Vernham in the intervening period. This is particularly serious given the credibility accorded to “Kathy’s” allegations and the role this conversation played in the decision to dismiss Mr Vernham. In addition, the evidence shows that the contents of “Kathy’s” phone call were never put to Mr Vernham. Mr Vernham seems to have found out about the telephone call from a police officer.
[67] The company’s contention that the contents of “Kathy’s” phone call amounted to a second lot of threats is not accepted. It is my view that the company was not entitled to rely on “Kathy’s” phone call as evidence of a repeat of the November 2014 emails. There was no independent investigation into “Kathy’s assertions. The company simply seems to have taken what was said at face value and then relied on “Kathy’s” assertions, in part, to make the decision to dismiss Mr Vernham. The claims by “Kathy” were never put to Mr Vernham as part of the checking process. In addition, “Kathy” was not called to give evidence before the Commission by the company. From the Commission’s perspective, for all of these reasons, little or no weight will be given to the secondhand account of what “Kathy” was alleged to have said to the company. Therefore, there was no proper basis for the company to have formed the view that Mr Vernham had made a second lot of threats in January 2015.
[68] Further, as no opportunity was given to Mr Vernham to put forward any mitigating factors, no account was taken by the company of Mr Vernham’s mental state at the time he sent the emails.
[69] Accordingly, I find that Mr Vernham was not given an opportunity to respond to the reasons for his dismissal, such as they were, contained in the letter of 17 February 2015.
Section 387(d) - refusal to allow a support person
[70] As there was no opportunity given to Mr Vernham to respond to the reasons for his dismissal, Mr Vernham was unable to request that a support person be present.
Section 387(e) - previous warnings
[71] As Mr Vernham was dismissed for serious misconduct, this section is not relevant in this matter.
Section 387(f) and (g) - size of the enterprise and absence of human resources
[72] On the basis of the evidence before me, I find that the size of the employer’s enterprise (approximately 1000 employees) 141 would not have had an impact on the procedures followed in affecting the dismissal. Secondly, Human Resources was involved throughout the process including the decision to dismiss Mr Vernham.
Section 387(h) - any other matters
[73] It was submitted by the company that Mr Vernham’s dismissal was not harsh given the seriousness, and the continuing nature, of the threats and the lack of knowledge of the Applicant’s actual mental health state. The company did not accept the Applicant’s contention that he was in an extremely poor psychological state at the time he sent the emails. It was said by the company that the evidence before the Commission was inconclusive in relation to Mr Vernham’s mental health condition. 142
[74] Further, it was stated by the company that the other matters raised by Mr Vernham did not address the deliberate and wilful behaviour by Mr Vernham that created significant safety concerns for the company. As well, the particular matters raised by Mr Vernham in his submissions, were said to be irrelevant and in no way diminished the severity of the conduct. 143
[75] On the other hand, Mr Vernham argued that there was a direct causal link between his mental state and his sending the emails to QBE. Further, it was contended that the company was aware that he was not in a good place and that he was having marital issues. Ms Paxton’s evidence was referred to in this regard.
[76] It is my view that Mr Vernham’s mental state at the time he sent the emails is a relevant factor. I accept Mr Vernham’s contention that there was a direct causal link between his mental state at the time he sent the emails and his decision to send the emails. From the evidence before me, it is apparent that the company was aware, at the time Mr Vernham sent the emails, that he was not in a good mental state. Ms Paxton gave evidence about a meeting that was held on 15 September 2014. She stated that Mr Vernham himself had said that he was having some marital and other issues and that he was not in a good place. Ms Paxton’s understanding, following the meeting, was that Mr Vernham was going through a lot of things and that he was not in a good space. She observed that he did not seem well and was mentally scattered.
[77] The evidence also indicated that Ms Tsantis was told by Ms Bonavia, on 24 November 2014, that Mr Vernham was suicidal and that she had contacted Mr Vernham’s doctor in this regard. Ms Tsantis stated that she knew that Mr Vernham had non work related personal issues but not the details. In December 2014, Ms Tsantis had discussed the nature of the threats in Mr Vernham’s emails with Ms Bonavia. As well, the company knew that Mr Vernham had lodged a WorkCover claim for stress.
[78] I have formed the view that, as a result of the information and observations set out in the two paragraphs above, there were enough signals/sufficient information for the company to conclude that Mr Vernham was mentally unwell. The company was told on 24 November 2014 that Mr Vernham was suicidal. Surely, if the company’s insurer (who hold all of the medical reports) tells the company that an employee is suicidal, that should have been a clear enough indication that Mr Vernham was mentally unwell. Therefore, the company should have asked Mr Vernham about his mental state
[79] If the company had asked the relevant questions, it would have discovered that Mr Vernham had commenced treatment with Ms Tan the day following the sending of the emails and would have also been appraised of the diagnosis of a post-traumatic stress disorder. This is a matter that the company should have taken into account, as a mitigating factor, in deciding whether to dismiss Mr Vernham. This is particularly so when the decision to dismiss Mr Vernham was made nearly three months after he sent the emails.
[80] The medical evidence provided by Mr Vernham to the Commission were reports from Dr Das, Consultant Psychiatrist (26 September 2014); Dr Chia (12 November 2014); Ms Borsi, Psychologist (16 November 2014) and Ms Tan, Psychologist (4 April 2015). 144 Dr Das’ diagnosis was a mild adjustment disorder and Dr Chia’s diagnosis was that Mr Vernham was suffering stress due to his own personal problems with persecution feelings.145 Ms Borsi cited post-traumatic stress disorder and listed the symptoms that Mr Vernham had presented.146 Ms Tan provided a brief treatment progress report and stated that her engagement with Mr Vernham for psychological counselling commenced on 22 November 2014 when he self referred. Between then and the date of her report, Ms Tan advised that she had seen Mr Vernham a further six times over four months. Ms Tan diagnosed Mr Vernham as having a post-traumatic stress disorder.
[81] With respect to the diagnoses provided by the three mental health practitioners (the Psychiatrist and two Psychologists), it is noted that Mr Vernham was referred to Dr Das for the purpose of undertaking a one-off independent psychiatric assessment in relation to a WorkCover claim. On the other hand, Ms Borsi and Ms Tan appear to have been Mr Vernham’s treating Psychologists at different times and both had provided treatment to Mr Vernham on two and seven occasions respectively. Both Ms Borsi and Ms Tan, independently, cited the same diagnosis, that of a post-traumatic stress disorder. 147 It was also Ms Tan’s opinion that Mr Vernham had evidenced some progress.148 As Ms Borsi and particularly Ms Tan provided treatment to Mr Vernham, as well as an assessment, and they separately provided the same diagnosis, I am inclined to give weight to, and accept, their reports.
[82] On the basis of the medical evidence provided by the two treating Psychologists, I find that, at the time Mr Vernham sent the emails, he was suffering from a mental illness and that there was a causal link between the two. Therefore, this matter will be taken into account as a mitigating factor. It is acknowledged that the company did not have before it the mental health evidence that has been presented to the Commission. However, the company did have sufficient knowledge of Mr Vernham’s mental health to have prompted it to ask questions of Mr Vernham about his mental state. If the company had done so, it is likely that it would have been provided with the same mental health documentation as the Commission has been.
[83] I also find that Mr Vernham’s length of service is a relevant factor.
Conclusions
[84] In all the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I determine, on balance, that Mr Vernham’s dismissal was harsh.
[85] On the one hand, there was a valid reason for Mr Vernham’s dismissal due to the threatening content of the emails he sent to QBE. On the other hand, Mr Vernham was suffering from a mental illness at the time he sent the emails. Mr Vernham was not given an opportunity to respond to the reasons for his dismissal and so was unable to explain to the company what his mental state was at the time. That Mr Vernham was mentally unwell when he sent the emails is a relevant factor which the company should have taken into consideration in making the final decision to dismiss him. A period of nearly 3 months elapsed between the sending of the emails and the date of Mr Vernham’s dismissal. The company’s failure to give Mr Vernham an opportunity to respond compounded the procedural unfairness by not taking into account a factor that was relevant to their decision making.
[86] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Vernham was unfairly dismissed.
REMEDY
[87] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) The FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) The FWC is satisfied that reinstatement of the person is inappropriate; and
(b) The FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[88] With respect to the requirements of section 390, I am satisfied that Mr Vernham was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Vernham has made an application under section 394 of the Act (section 390(2)).
[89] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
[90] Reinstatement was not sought by Mr Vernham. 149 It was the company’s view that reinstatement would not be appropriate due to the serious nature of Mr Vernham’s conduct which presented a real and significant risk to the company’s employees. In addition, the company was said to have lost confidence in Mr Vernham and was of the belief that Mr Vernham’s reinstatement would create unease among staff, given the nature of the conduct.150 Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Vernham.
Compensation
[91] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate. Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[92] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 151 (Haigh).). In Haigh, the Full Bench also referred152 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket153 (Sprigg). I respectfully adopt the approach taken in Haigh.
Section 392(2)(a) - affect on the viability of the employer’s enterprise
[93] Neither party made submissions in relation to this subsection of the Act.
[94] There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.
Section 392(2)(b) - Applicant’s length of service
[95] Mr Vernham’s length of service with the company was 14 years. 154
[96] As indicated in paragraph [84] above, I propose to take this factor into account.
Section 392(2)(c) - remuneration likely to have received
[97] It was submitted by Mr Vernham that, had he not been dismissed, he would have continued in employment with the company into the foreseeable future. 155
[98] On the other hand, the company’s primary contention was that, if compensation was to be awarded, it should amount to nil – for a number of reasons. 156 This particular subsection was not specifically addressed in the company’s submissions.
[99] In all of the circumstances of this matter, I have formed the view that, had Mr Vernham not been dismissed, it is likely that his employment would have continued for a further year. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration likely to have been received would have been one year.
[100] This results in a provisional amount of $42,639.91 (calculated on $21.5789 per hour x 38 hours x 52 weeks). 157
Section 392(2)(d) - efforts to mitigate loss
[101] It was submitted by Mr Vernham that, due to his mental health problems and physical injuries, he has been unable to find suitable alternative work. 158
[102] For the company’s part, it was contended that Mr Vernham had failed to provide any evidence of seeking to mitigate his loss. 159
[103] As set out in paragraph [101] above, Mr Vernham relied on his mental health problems and physical injuries for being unable to find suitable alternative employment. The most recent evidence regarding Mr Vernham’s mental health is the report from Ms Tan dated 5 April 2015. There is also no up-to-date medical assessment in relation to Mr Vernham’s physical injuries. Therefore, the Commission is not in a position to make a finding in relation to this requirement. Accordingly, Mr Vernham is directed to provide to the Commission, and to the Respondent, evidence of his efforts to mitigate his loss. If Mr Vernham has been unable to make those efforts due to mental health or physical issues, evidence supporting this contention needs to be provided as well. This information is to be provided by Friday 29 January 2016.
Section 392(2)(e) - remuneration earned and income reasonably likely to be earned (section 392(2)(f)
[104] Mr Vernham’s dismissal was summary and so it is assumed that there was no pay in lieu of notice paid by the company. If this is not the case, the company is requested to provide details of any notice in lieu that was in fact paid, by Friday, 29 January 2016.
[105] There is no detailed evidence before the Commission in relation to any remuneration earned by Mr Vernham between 18 February 2015 and the date of this decision (8 December 2015). Therefore, Mr Vernham is directed to provide, to the Commission and to the Respondent, evidence of any remuneration earned between 18 February 2015 and 8 December 2015. This includes any weekly WorkCover payments but does not include any Centrelink payments as the latter are not taken into account by the Commission in determining the amount of remuneration earned.
[106] In addition, Mr Vernham is directed to provide any remuneration earned, or estimated to be earned, and accompanying evidence, between 9 December 2015 and 17 February 2016. All of this financial information is to be provided by Friday 29 January 2016.
Section 392(2)(g) - other matters
[107] Mr Vernham submitted that it should be taken into account that his misconduct was caused in large part by his mental health problems which were the result of the unreasonable conduct of the company, including discrimination and bullying. 160 Further, it was argued by Mr Vernham that his previously unblemished record of service with the company over a period of 15 years should also be taken into account.161
[108] It was stated by the company that Mr Vernham’s WorkCover weekly compensation payments, which he was receiving at the time of his dismissal, were terminated because of his refusal to comply with the New Employer Services Scheme, as arranged by QBE. On this basis, the company submitted that any compensation otherwise payable should be reduced to nil. 162
[109] Further, the company rejected the Applicant’s submission that the Respondent was the ultimate cause of his serious misconduct. The company contended that no evidence of unreasonable conduct, including discrimination and bullying by the Respondent, has been presented to the Commission. In any event, the Respondent denied that it had engaged in any such conduct towards Mr Vernham. Further, the Commission was referred to the findings made by QBE in rejecting Mr Vernham’s stress-related WorkCover claim and the finding of Worksafe Victoria, that Mr Vernham’s claims of discrimination, were unsubstantiated. 163
[110] It was stated by the company that, even if the Applicant was unfairly dismissed, which was denied, no award of compensation should be made. 164
Section 392(3)
[111] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order.
[112] Mr Vernham requested that the Commission have regard to his psychological state at the time the misconduct occurred and argued that it is a significant mitigating factor for determining an “appropriate amount”. 165
[113] The company contended that, as it was the Applicant’s own misconduct which contributed to the employer’s decision to terminate his employment, there should be an appropriate reduction in any compensation payable. 166
[114] The Commission has found that Mr Vernham’s actions, in sending the emails to QBE, amounted to serious misconduct. It has also been found that a mitigating factor in deciding to terminate Mr Vernham’s employment should have been that Mr Vernham was suffering from a mental illness at the time he sent the emails. On the basis of Mr Vernham’s serious misconduct, the Commission is required to reduce the amount that would otherwise be ordered. Taking into account the mitigating factor, I propose to reduce the amount by 40%.
Contingencies and taxation
[115] There were no submissions from either party on either of these issues. As the anticipated period of employment has not yet passed (16 February 2016), it is proposed to make a deduction of 15% for contingencies.
[116] The impact of taxation has been considered and a gross amount will be settled on.
Section 392(4) - shock or distress
[117] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Vernham.
[118] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.
[119] Once the information requested from the parties is to hand, it will then be possible to finalise determination of the amount of compensation in lieu of reinstatement.
[120] A further decision and order, in regard to compensation, will be issued within two weeks of receipt of the information.
Appearances:
T Vernham representing himself
D Paxton from the Respondent
Hearing details:
2015.
Melbourne:
July 20.
Final written submissions:
Applicant, 18 August 2015
Respondent, 3 September 2015
Applicant, 17 September 2015
1 Exhibit A2
2 Ibid
3 Ibid and Transcript PN 329
4 Ibid and ibid PN 331 - 334
5 Ibid
6 Ibid and ibid Transcript PN 335
7 Ibid
8 Ibid
9 Ibid
10 Ibid
11 Transcript PN 344 - 345 and 458 - 459
12 Ibid PN 460 - 461
13 Ibid PN 461
14 Ibid PN 465
15 Ibid PN 336 - 343 and Exhibit A2
16 Ibid PN 387 - 388 and ibid
17 Exhibit A2
18 Ibid and Transcript PN 346 - 355
19 Ibid and ibid PN 356 - 357
20 Ibid PN 358 - 359
21 Ibid PN 360 - 362 and 466 - 468
22 Ibid PN 363 - 366 and 469 - 483
23 Ibid PN 365 and 485
24 Ibid PN 484 - 486
25 Ibid PN 371 - 380
26 Ibid PN 392 - 425
27 Ibid PN 426
28 Ibid PN 431 - 450
29 Ibid PN 452
30 Exhibit R3
31 Ibid at paragraphs 4 - 5
32 Ibid at paragraph 6
33 Ibid at paragraph 8
34 Ibid at paragraph 9
35 Ibid at paragraph 10
36 Ibid at paragraph 11
37 Ibid at paragraph 12
38 Transcript PN 882 - 883
39 Exhibit R3 at paragraph 13
40 Ibid at paragraph 14
41 Ibid
42 Ibid at paragraph 15
43 Ibid at paragraph 16 and Transcript PN - 844 and 847
44 Ibid PN848 - 849
45 Ibid PN 850
46 Ibid PN 849 and Exhibit R3 at paragraph 17
47 Ibid PN 852
48 Ibid PN 863 and 880
49 Ibid PN 885
50 Ibid PN 885 - 886
51 Ibid PN 886 - 888
52 Ibid PN 894 - 897
53 Ibid PN 912 - 913
54 Ibid PN 914
55 Ibid PN932 - 934
56 Ibid PN 944 - 946
57 Ibid PN 953 - 955
58 Ibid PN 959 - 961
59 Ibid PN 970
60 Exhibit R2
61 Ibid at paragraph 8
62 Ibid at paragraph 26 and Transcript PN 534
63 Ibid at paragraph 16
64 Ibid at paragraph 21 and Transcript PN 528 - 530
65 Ibid PN 534
66 Ibid PN 534, 589 and 610 and Exhibit R2 at paragraph 23
67 Ibid PN 534
68 Ibid
69 Exhibit R2 at paragraph 25
70 Transcript PN 535
71 Ibid PN 537 - 539 and Exhibit R2 at paragraphs 10 and 13
72 Ibid PN 539 and Exhibit R2 at paragraph 13
73 Ibid at paragraph 13
74 Transcript PN 539 and 542
75 Ibid PN 543
76 Ibid PN 539
77 Ibid PN 544 - 545
78 Ibid PN 552 - 554
79 Ibid PN 613 - 616 and Exhibit R2 at paragraph 15
80 Ibid PN 626 - 627 and ibid at paragraphs 17 - 19
81 Ibid PN 671 - 673 and ibid at paragraphs 24 and 29
82 Ibid PN 675 - 683 and ibid at paragraph 31
83 Ibid PN 694 and ibid at paragraph 13
84 Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 3
85 Ibid at paragraph 4 - 6
86 Ibid at paragraph 7
87 Ibid at paragraphs 8 - 13
88 Submissions in reply of the Applicant, dated 17 September 2015, at paragraphs 11 - 15
89 Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 15 - 16
90 Ibid at paragraph 17
91 Ibid at paragraph 32
92 Ibid at paragraphs 33 - 34
93 Ibid at paragraph 35
94 Ibid at paragraph 36
95 NSW [2013] NSWIRComm 57
97 Closing Submissions of the Applicant, dated 18 August 2015, at paragraphs 18 - 27
98 Submissions in Reply of the Applicant, dated 17 September 2015, at paragraphs 18 - 22
99 Ibid at paragraphs 22 - 31
100 Ibid at paragraphs 32 - 38
101 Ibid at paragraph 17 and Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 37
102 Closing Submissions of the Applicant, dated 18 August 2015, at paragraphs 28 - 30
103 Submissions in Reply of the Applicant, dated 17 September 2015, at paragraphs 3 - 10
104 Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 38 - 40
105 Ibid at paragraphs 53 and 55
106 Ibid at paragraph 42 - 48
107 Ibid at paragraph 49 - 53
108 Exhibit R1 at paragraph 16 and Final Submissions of the Respondent, dated 3 September 2015, at paragraph 15
109 Ibid and ibid
110 Ibid at paragraph 28 and Final Submissions of the Respondent, dated 3 September 2015, at paragraphs 2 and 4 - 5
111 Ibid at paragraphs 9 and 19
112 Final Submissions of the Respondent, dated 3 September 2015, at paragraph 6
113 Exhibit R1 at paragraphs 20 and 43
114 Ibid at paragraph 22
115 Ibid at paragraphs 23 and 26
116 Ibid at paragraphs 27 - 28
118 Final Submissions of the Respondent, dated 3 September 2015, at paragraph 9
119 Ibid at paragraphs 18 - 25
120 Ibid at paragraphs 26 - 28
121 Ibid at paragraphs 29 - 33
122 Exhibit R1 at paragraph 32
123 Ibid at paragraphs 33 - 34 and Final Submissions of the Respondent, dated 3 September 2015, at paragraph 10
124 Final Submissions of the Respondent, dated 3 September 2015, at paragraph 14
125 Ibid at paragraph 12 and Exhibit R1 at paragraph 33
126 Ibid at paragraph 13
127 Ibid at paragraph 11and Exhibit R1 at paragraph 38
128 Exhibit R1 at paragraphs 29 and 40
129 Final Submissions of the Respondent, dated 3 September 2015, at paragraphs 35 - 36
130 Ibid at paragraph 38(a)
131 Ibid at paragraph 38(b)
132 Ibid at paragraph 38(c)
133 Ibid at paragraph 38(d))
134 Exhibit R2 at Attachment DP-5
135 Exhibit R3 at Attachment KT-3
136 Ibid
137 Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 6
138 Transcript PN 633 and 637
139 Exhibit R1 at paragraphs 32 - 34 and Final Submissions of the Respondent, dated 3 September 2015, at paragraphs 10 - 14
140 Exhibit R2 at Attachment DP-5
141 Ibid at paragraph 37
142 Final Submissions of the Respondent, dated 3 September 2015, at paragraphs 16 - 25
143 Exhibit R1 at paragraphs 39 - 43
144 Bundle of documents attached to Exhibit A2
145 Ibid
146 Ibid
147 Ibid
148 Ibid
149 Closing Submissions of the Applicant, dated 18 August 2015, at paragraph 56
150 Exhibit R1 at paragraphs 45 - 46 and Final Submissions of the Respondent, dated 3 September 2015, at paragraph 40
152 Ibid at paragraphs [10] – [12]
153 (1998) 88 IR 21
154 Submissions in Reply of the Applicant, dated 17 September 2015, at paragraph 42
155 Ibid at paragraph 41
156 Ibid at paragraphs 41 - 44
157 Exhibit A2 - payslips for Mr Vernham
158 Submissions in Reply of the Applicant, dated 17 September 2015, at paragraph 43
159 Final Submissions of the Respondent, dated 3 September 2014, at paragraph 41
160 Closing submissions of the Applicant, dated 18 August 2015, at paragraphs 60 - 62
161 Ibid at paragraph 58
162 Final Submissions of the Respondent, dated 3 September 2015, at paragraph 42 and Exhibit R1 at paragraph 47
163 Ibid at paragraph 43
164 Ibid at paragraph 44
165 Submissions of the Applicant in Reply, dated 17 September 2015, at paragraph 45
166 Final Submissions of the Respondent, dated 3 September 2015, at paragraph 41 and Exhibit R1 at paragraph 47
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