[2016] FWC 2668
The attached document replaces the document previously issued with the above code on 29 April 2016.
Endnote 42 has been amended from [2015] FWC 6539 to [2014] FWC 6539.
Associate to Deputy President Clancy.
Dated 3 May 2016.
| [2016] FWC 2668 [Note: An appeal pursuant to s.604 (C2016/3720) was lodged against this decision - refer to Full Bench decision dated 1 August 2016 [[2016] FWCFB 4104] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Aitken
v
CUB Pty Ltd
(U2015/15101)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 29 APRIL 2016 |
Application for relief from unfair dismissal.
[1] Mr Peter Aitken has applied under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for reinstatement in relation to his dismissal on 13 November 2015 from his employment as a warehouse employee with CUB Pty Ltd.
[2] The reason CUB gave for the dismissal of Mr Aitken was that his conduct was ‘inconsistent with the trust and confidence required in the employment relationship’, 1 having previously conveyed the following findings in a letter regarding the outcome of an investigation into his conduct at work:
“…
…” 2
[3] Mr Aitken was paid five weeks’ pay in lieu of notice.
[4] Mr Aitken contends that he did not engage in the misconduct alleged against him on 13 October 2015 and that the termination of his employment was ‘quintessentially’ harsh, unjust and unreasonable, rendering his termination unfair within the meaning of the FW Act. 3
[5] An order for reinstatement or compensation may only be issued where I am satisfied Mr Aitken was protected from unfair dismissal at the time of the dismissal.
[6] Section 382 of the FW Act sets out the circumstances that must exist for Mr Aitken to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[7] There is no dispute, and I am satisfied, Mr Aitken has completed the minimum employment period and was covered by the CUB Pty Ltd Abbotsford Brewery Enterprise Agreement 2015-2018. Consequently, I am satisfied Mr Aitken was protected from unfair dismissal.
[8] Section 396 of the FW Act requires me to decide four specified matters before the merits of the application may be considered.
Whether the application was made within the period required in subsection 394(2)-s.396(a)
[9] Mr Aitken’s employment was terminated on 13 November 2015 and his unfair dismissal application was received by the Commission on 16 November 2015. As such, I am satisfied that Mr Aitken made his application within the required 21 day period in s.394(2) of the FW Act.
Whether the person was protected from unfair dismissal – s.396(b)
[10] As outlined in paragraph [7] above, I am satisfied Mr Aitken was protected from unfair dismissal. This is not in dispute.
Whether the dismissal was consistent with the Small Business Fair Dismissal Code – s.396(c)
[11] CUB is not a small business employer within the meaning of s.23 of the FW Act. It is not disputed and I find that the Small Business Fair Dismissal Code does not apply.
Whether the dismissal was a case of genuine redundancy – s.396(d)
[12] It is not disputed and I find that this is not a case of genuine redundancy.
[13] I will now consider if the dismissal of Mr Aitken by CUB was unfair within the meaning of the FW Act.
[14] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3
[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[16] As outlined above, on 13 November 2015, CUB terminated Mr Aitken’s employment (s.385(a) of the FW Act).
[17] No issue was raised in relation to ss.385(c) and (d) of the FW Act and I reiterate my findings at paragraphs [11]-[12] above.
[18] I must now consider whether I am satisfied the dismissal was harsh, unjust or unreasonable within the meaning of s.385(b) of the FW Act.
[19] The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:
“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.”
[20] Mr Aitken gave evidence and Mr Les Samartzis also gave evidence on his behalf. Both made a statement of evidence and Mr Aitken also made a statement in reply. Both were cross-examined on their statements.
[21] The following witnesses gave evidence on behalf of CUB:
[22] Each of the CUB witnesses made a statement of evidence and were cross-examined on their statements.
[23] Both parties relied on written submissions filed prior to the hearing and oral submissions made at the conclusion of it.
[24] Mr Aitken commenced employment with CUB in or around October 1995 as a warehouse employee. He commenced at the Richmond brewery before spending some time at CUB’s Altona site. From 2007, he worked at the Abbotsford brewery.
[25] Mr Aitken recognised that safety was very important at the Abbotsford brewery and acknowledged that CUB had a number of policies that dealt with workplace safety. More particularly, he was aware that there was an Abbotsford site smoking policy. This policy stated:
“…At the Abbotsford plant smoking is only permitted in areas clearly marked for that purpose. Smoking outside the defined smoking areas will be regarded as a breach of Health and Safety provisions, and will be dealt with as such...” 4
[26] Mr Aitken was also aware of the multiple no-smoking signs on site and he knew that it was a site rule that employees could only smoke in designated smoking areas. Mr Aitken was specifically aware that there was no smoking permitted on or about a gas operated forklift.
[27] Further, Mr Aitken understood that smoking outside of a defined smoking area would be regarded as a breach of health and safety provisions, meaning that it could be a disciplinary issue resulting in a warning and possibly even termination. 5
[28] More specifically, Mr Aitken recalled the presentation given by Mr Woodburn, CUB General Manager – Southern Operations, in November 2011 6 in which Mr Woodburn outlined, amongst other things, his requirement that employees not undertake unsafe acts at work.
[29] While Mr Aitken could not initially recall any disciplinary incidents prior to 2012 and had asserted that prior to 2012, he did not have any difficulties with his employment and did not get any negative feedback about his work performance or competence, 7 he subsequently acknowledged he received a written warning and was put on a six month performance plan for having driven off site at a time when he was rostered for work while he was working with Mr Van Ruth at Altona.8 Mr Aitken responded to a further allegation from Mr Van Ruth that he had received a further written warning for failing to follow a direction by stating that he did not recall this.9
[30] On 20 February 2012, Mr Aitken received a written warning 10 for unauthorised absences from the workplace during a shift, including leaving the workplace prior to the completion of his shift (the 2012 written warning).
[31] In relation to the 2012 written warning, Mr Aitken confirmed he was represented by the CFMEU when this warning was issued and accepted he had been absent from the workplace without authorisation when a team meeting had been called. 11 He acknowledged both at the time it was given and at the hearing that he had, at least in part, done the wrong thing.12
[32] At the hearing, he nonetheless claimed it was common practice for warehouse employees to leave work after all the work for the shift had been completed and organise their own meal breaks and he asserted that he had spoken up about the 2012 written warning at the time it was issued. He also gave evidence that he changed his behaviour following this warning. 13
[33] CUB claimed Mr Aitken was observed smoking outside of a designated smoking area in May 2012 and issued with a verbal warning that was recorded in a filenote. 14 Mr Aitken stated he had no recollection of this15 and that to his knowledge, it never happened.16
[34] In late 2013, Mr Aitken suffered a serious psychological breakdown and resigned his employment on 5 December 2013. He did not work for the next few months but gained a medical clearance for a return to work in March 2014.
[35] He recommenced employment with CUB on 11 March 2014 under terms outlined in a letter from CUB dated 6 March 2014. 17 In particular, he undertook a return to work plan that required:
[36] Mr Aitken understood that a condition of his return was that if CUB thought at any stage he was not able to act in a safe way, it would raise this with him and deal with it. 18
[37] As part of an agreement between CUB and the CFMEU, Mr Aitken was back-paid to 5 December 2013 and his prior service was acknowledged. However, accruals for annual leave and long service leave recommenced from his return on 11 March 2014.
[38] Mr Aitken attended forklift training on 19 March 2014 19 and in August 2014 and this covered things such as hazards to watch out for when operating a forklift, how to avoid tilting, how to use tines correctly and reconfirmed that employees were not to smoke on or about gas-operated forklifts.20
[39] Mr Aitken received a written warning as a result of an incident on 3 November 2014 (the 2014 written warning). 21 As with the 2012 written warning, Mr Aitken had access to assistance from the CFMEU at the time.22
[40] CUB found Mr Aitken had failed to comply with a safe loading procedure in that he had admitted to loading a truck whilst the driver was not in the designated safety green zone. CUB advised Mr Aitken that further unacceptable behaviour would be viewed very seriously.
[41] In his statement, Mr Aitken admitted the driver was not in the green zone 23 but sought to explain his behaviour by stating the driver was outside the three metre exclusion zone. He stated it was common practice for trucks to be loaded while drivers were in the yellow forklift working zone, provided they were outside a three metre exclusion area.24 However, when issued with the warning, he agreed that trucks were not to be loaded unless the driver was in the green zone and he accepted he had ‘broken the rules’, even though he had seen the practice of drivers not being in the green zone during loading happening every day.25 At the hearing, he gave evidence that it was once or twice per week that this occurred.26
[42] Mr Van Ruth gave evidence that disputed Mr Aitken’s claims that it was common practice for trucks to be loaded while the driver was in the yellow zone. 27 He stated CUB policy was that drivers had to be in the green zone and the three metre exclusion zone was a different safety rule applying to driving of forklifts near pedestrians.28 Mr Van Ruth stated that Mr Aitken had admitted he had broken the rules and that Mr Aitken did not understand that the three metre rule and the green zone rule were not the same and did not apply in the same places.29
[43] Mr Aitken was absent from work between December 2014 and March 2015 following an incident at work which resulted in him making a claim for workers’ compensation. The claim was accepted and he received weekly payments and reimbursement for medical expenses during this period until his return to work in March 2015.
[44] It is not disputed that on 1 October 2015, Mr Aitken was observed by Mr Van Ruth smoking outside of a designated smoking area.
[45] Mr Aitken stated Mr Van Ruth had regularly said to him that he did not care if employees smoked outside but that they were not to smoke inside the buildings. 30 This was denied by Mr Van Ruth, who stated that what he had said was “[i]f there are no trucks and no work to do, you can go have a smoke in the designated smoking area.”31
[46] Mr Aitken also claimed that others smoked with him outside of designated smoking areas but when asked to name them, he declined. While Mr Samartzis referred to people previously smoking on a deck area outside and suggested they probably still do, he did not name anyone and stated that he did not monitor where people do and do not smoke. 32
[47] Mr Van Ruth and Mr Aitken went to Mr Van Ruth’s office and Mr Van Ruth advised Mr Aitken that there would be a follow-up meeting to this incident. Mr Aitken then returned to work and completed his shift. Mr Van Ruth made a file note dated 1 October 2015 of the incident and subsequent meeting in the office. 33
[48] Although Mr Van Ruth asserted that he subsequently took steps to involve CUB’s HR professionals, no further formal action was taken in response to this incident prior to 13 October 2015, a period which covered seven working days.
[49] Additionally, Mr Aitken’s evidence was that he approached Mr Van Ruth a few days later for an update because he wanted to know what was going on. This was denied by Mr Van Ruth when he was cross-examined on this point.
[50] CUB relied solely on the evidence of Mr Van Ruth in relation to the alleged smoking incident on 13 October 2015. CUB alleged that Mr Van Ruth observed Mr Aitken with a lit cigarette in his hand while driving a forklift in the warehouse but by the time he was able to confront him, Mr Aitken had disposed of it. It further alleged that when Mr Van Ruth examined the forklift, he found cigarette ash on its side and when he opened the flap on the dashboard that covered a chute to the engine well, cigarette smoke wafted out.
[51] Mr Aitken denied the allegations and maintains he was not smoking while driving the forklift on 13 October 2015.
[52] Mr Van Ruth’s evidence was that he saw Mr Aitken smoking from the first or second stair beyond a landing in a stairwell parallel to a laneway running to and from a loading area in the warehouse. He looked down from the stairwell from a height of approximately two metres and observed Mr Aitken with a lit cigarette in his hand, curled into his palm as he drove past on a forklift in a southerly direction away from the loading area.
[53] Mr Van Ruth’s file note of 13 October 2015 34 stated that when he looked down from the landing in the stairwell and observed Mr Aitken driving his forklift in the southerly direction, he could see that Mr Aitken was holding a lit cigarette in his right hand and driving the forklift with his left.
[54] However, Mr Van Ruth’s oral testimony was that the cigarette was held in Mr Aitken’s curled up left hand while he controlled the forklift with his right hand.
[55] Mr Van Ruth said he turned around and walked back down the stairs to ground level and waited for Mr Aitken to go past in a northerly direction on his way back towards the loading area. This took approximately one minute and Mr Van Ruth did not observe Mr Aitken to be holding anything on his way back.
[56] Mr Van Ruth called out to Mr Aitken to stop and said that although Mr Aitken turned and looked at him, he did not attempt to stop immediately but went past him and stopped further forward than would normally be the case, about 10 metres from where Mr Van Ruth was standing. He stated he observed Mr Aitken leaning forward to the steering wheel towards the left hand side so as to destroy the cigarette butt.
[57] Mr Aitken reversed his forklift and Mr Van Ruth said “I’ve caught you in the act of smoking” to which the reply was “[n]o I wasn’t”. Mr Van Ruth stated he found cigarette ash on the side of the forklift. He stated he showed the ash to Mr Aitken and it disintegrated on his finger. He did not take a photo of the ash and there was no one else there to observe it. Mr Van Ruth’s file note of 13 October 2015 also records him saying to Mr Aitken that he could still smell the aroma of cigarette smoke.
[58] Mr Van Ruth also stated that when he opened a flap on the bonnet of the forklift, a waft of cigarette smoke came out. He was asked about where the flap went and advised that it opened straight into the engine bay below. He did not see a cigarette butt when he looked through the flap into the wires, rails and motor below and nor did he see one on the warehouse floor or below the forklift.
[59] Mr Van Ruth stated that no other employees were in the vicinity while he was talking to Mr Aitken and opening the flap on the bonnet of the forklift, but at the end of his conversation two forklifts pulled up a safe distance away, one of which was driven by Mr Samartzis.
[60] Mr Van Ruth gave two versions of the sequence of events from there. In his statement, he says he went upstairs and made his file note of 13 October 2015 before going to speak to Mr Blackler who prepared a letter dated 13 October 2015 35 for Mr Aitken which was handed to Mr Aitken with the advice that he was to go home and was stood down.
[61] In oral testimony, Mr Van Ruth stated he went to see Mr Blackler and following a discussion with him, prepared a note for a formal discussion that was subsequently held with Mr Aitken and his support person and then after Mr Aitken left the site, he prepared the file note of 13 October 2015. 36
[62] Mr Aitken’s evidence was that he was driving his forklift in a downwards, northerly direction towards the loading area. He heard Mr Van Ruth call out to him to stop. He spotted Mr Van Ruth to his right, stopped the forklift and reversed back approximately four to five metres. Mr Aitken says that Mr Van Ruth said “[w]hy didn’t you just stop” to which he replied “I can’t stop instantly.” Mr Van Ruth then said “I’ve caught you smoking” to which he replied “I’m not smoking.”
[63] Mr Aitken stated that Mr Van Ruth said he could smell the smoke on Mr Aitken’s breath. Mr Aitken’s explanation in reply was that, being a smoker, he always smelt like smoke. Mr Aitken stated that Mr Van Ruth then ran his finger along the forklift, lifted it up to show Mr Aitken and said “[t]hat’s my evidence” before telling him he was fired and to pack his things and go home.
[64] Mr Aitken stated that he subsequently received the letter dated 13 October 2015 on a date that he could not recall.
[65] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 37 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[66] As outlined above, the criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the FW Act. I am under a duty to consider each of these criteria in reaching my conclusion. 38
[67] I will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
[68] CUB must have a valid reason for the dismissal of Mr Aitken, although it need not be the reason given to him at the time of the dismissal. 39 The reasons should be “sound, defensible and well founded”40 and should not be “capricious, fanciful, spiteful or prejudiced.”41
[69] Principles governing circumstances where the reason or reasons relied upon include misconduct were recently considered in Farmer v KDR Victoria Pty Ltd T/A Yarra Trams 42:
“However in matters such as this, in which the conduct of the person is said to have involved misconduct, there is a need to subject the allegations to careful scrutiny, avoiding “inexact proofs, indefinite testimony, or indirect inferences”. 43 In considering the evidence, a “proper degree of satisfaction is required having regard to the seriousness of the allegations”44, noting that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”.45 In a case such as this involving misconduct the Commission must determine whether the conduct occurred.”46
[70] The reason CUB gave for the dismissal of Mr Aitken was that his conduct was inconsistent with its required expectations, reasons for which were outlined in its letter to Mr Aitken dated 27 October 2015: 47
“…
…”
[71] Further, CUB asserted that Mr Aitken had failed to demonstrate professional standards of behaviour and observe fundamental site safety rules and policies, despite having been provided with ‘ample opportunity to understand and adhere to these expectations.’ As such, his employment could not continue because his conduct was ‘inconsistent with the trust and confidence required in the employment relationship.’ 48
[72] CUB did not terminate Mr Aitken’s employment on the basis of serious misconduct. It made payment to Mr Aitken in lieu of notice and denies that his dismissal was in any way harsh, unjust or unreasonable because he had consistently demonstrated that he would not (or could not) observe its fundamental safety rules and policies as required as a condition of his employment.
[73] Having regard to the evidence outlined in paragraphs [25]-[28] above, which is not in dispute, I am satisfied Mr Aitken understood that safety was very important at the CUB Abbotsford Brewery and that there were a number of policies dealing with workplace safety.
[74] He knew there was a management requirement that employees not undertake unsafe acts at work and that there was a site smoking policy. More specifically, Mr Aitken was aware of the multiple no-smoking signs on site and the rule that employees could only smoke in designated smoking areas. Mr Aitken understood that smoking outside of a defined smoking area would be regarded as a breach of health and safety provisions that could result in a warning and possibly even termination.
[75] I will deal with each of the reasons CUB gave in its letter dated 27 October 2015 in support of its assertion that Mr Aitken’s conduct was inconsistent with the trust and confidence required in the employment relationship in turn and indicate the findings I make in relation to each of them.
[76] As referenced in paragraph [31] above, Mr Aitken accepted he had been absent from the workplace without authorisation when a team meeting had been called. While he sought to claim it had been common practice for employees to leave work after all the work for the shift had been completed, he acknowledged, at least in part, that he had done the wrong thing.
[77] Mr Aitken’s submission was that this practice was a practice adopted by the group and that when it was put to him by CUB that it was to cease, he accepted his warning and changed his behaviour. 49 CUB submitted that the times that he was absent from work that were documented in the 2012 written warning cannot possibly be reconciled with a common practice of people being absent from work.50 CUB submitted that the warning must be seen as justified. I agree.
[78] Mr Aitken did not challenge the 2012 written warning. He was represented by the CFMEU at the time, he accepted it and it has stood. The unauthorised absences stretched across three instances and totalled 1 hour and 42 minutes and while Mr Aitken submitted he changed his behaviour as a result of this warning, this is in my opinion undermined by previous, similar, admitted behaviour. Mr Aitken conceded that this was not the first time he had been absent from site without authorisation, having earlier received a written warning and been placed on a performance improvement plan for being absent from site while rostered to work at the Altona site with Mr Van Ruth. 51
[79] CUB relies on a verbal warning given to Mr Aitken in May 2012 for smoking outside a smoking area that was recorded in a file note as indicative of his ongoing issues relating to failure to comply with its policies. 52
[80] While Mr Aitken had no recollection of having received a verbal warning for smoking outside a designated smoking area in May 2012, no reason as to why the file note would have been created if it did not occur was put in response to CUB’s submission. 53
[81] I have already outlined the circumstances attached to the negotiated re-engagement of Mr Aitken by CUB in March 2014 following his resignation four months earlier in December 2013. The parties made submissions regarding the way in which the re-engagement should be characterised.
[82] CUB submitted that the letter dated 6 March 2014 54 provided context for Mr Aitken’s re-engagement and served to remind him that he was having a fresh start, was effectively becoming almost a probationary employee and would be watched and if there were any issues, they would be addressed and that this had been acknowledged by Mr Aitken.55
[83] Mr Aitken’s subsequent submission was that the whole of his employment had to be looked at and he did not accept the proposition that there was a measure of trust when he returned to work in 2014 that he would take the opportunity that he had been given and make the most of it, which in turn framed the way in which subsequent safety breaches should be viewed. 56
[84] Mr Van Ruth was asked about the letter dated 6 March 2014 and confirmed that the arrangements it outlined were consistent with the standard approach taken for employees returning to work. 57 He was not, however, asked about the intent of the full wording of the fourth paragraph in the letter that read:
“…Should during your return to work or any-time whilst engaged in your role that the Company become concerned with your capacity to work or be made aware of any issues that impact the health and safety of yourself, other employees or our obligation to provide a safe workplace; we will address these immediately…”
[85] Mr Woodburn was asked about the letter and his involvement in it and stated that he and two directors from CUB had involvement in the letter because “the reinstatement of Peter was a significant event and the directors of CUB took the decision that Peter should be reinstated on the very clear understanding about his performance going forward, and particularly about safety to himself and to others, which is why it is called out in the document as it is. So in terms of crafting it, no. In terms of the intent of it and spirit of it, it was very clearly articulated within CUB and from CUB to CFMEU and my understanding was also to Peter.” 58
[86] CUB had attempted to persuade Mr Aitken not to resign in December 2013 but he could not be shifted on his decision. When he sought to return a few months later, CUB and the CFMEU negotiated a set of conditions that are rare and commendable in that he was back paid for three months and had his prior service acknowledged. I regard it as significant that there was specific reference to CUB’s intention to immediately address issues that arose that impact the health and safety of Mr Aitken, other employees and CUB’s obligations to provide a safe workplace. I am satisfied the re-engagement of Mr Aitken was a significant event and provides some context for the way in which the events that followed should be viewed.
[87] Mr Aitken submitted that the incident giving rise to the 2014 written warning constituted a technical breach of a CUB policy that he understood, but he accepted this warning and changed his behaviour by no longer engaging in the practice that had previously been in use. 59
[88] CUB relied on the evidence of Mr Van Ruth 60 for its submission that it was not common practice for trucks to be loaded while a driver was in the yellow zone and that company policy had always been that drivers have to be in the green zone for trucks to be loaded and unloaded. Mr Van Ruth was not cross examined on these matters. CUB relies on the 2014 written warning as also indicative of Mr Aitken’s ongoing issues relating to failure to comply with its policies.61
[89] The 2014 written warning was issued because of a specific finding that Mr Aitken had loaded a truck whilst the driver was holding pallet boards instead of being in the designated safety green zone. 62 Mr Aitken admitted his behaviour was wrong and accepted the warning.
[90] I am not persuaded by the assertion Mr Aitken made when giving evidence that he was left with the choice of either accepting the warning or being terminated. He did not raise this in either of his witness statements. Indeed, in his first witness statement he stated that he accepted he had broken the rules. 63 He was represented at the time of the 2014 written warning by the CFMEU, but there was no evidence from a CFMEU representative that corroborated the assertion of an ultimatum.
[91] In his submissions regarding the smoking incident on 1 October 2015, it was accepted by Mr Aitken that he was caught smoking, that it was outside of a designated smoking area and he knew he should not have done this. 64 It was also accepted that the location in which he was smoking was not appropriate.65
[92] Mr Aitken’s submissions focussed on the argument that the smoking incident on 1 October 2015 did not of itself constitute serious misconduct justifying termination of employment and that CUB was attempting to construct it as something far more serious than it considered it to be at the time. Mr Aitken submitted that while it justified some sort of disciplinary action, it did not justify dismissal. 66
[93] CUB submitted that the smoking incident on 1 October 2015 was not the reason for dismissal. Rather, it was one of three particular heads of findings it ultimately relied on for the dismissal. 67
[94] Mr Aitken offered no reason as to why he chose to smoke where he did on 1 October 2015 instead of going to a designated smoking area. He admitted this was a flagrant breach of a very well-known policy and acknowledged it would not have been very difficult for him to get to a designated smoking area. 68
[95] Mr Van Ruth’s file note from 1 October 2015, 69 records a very concerning indifference on the part of Mr Aitken to the site requirement that smoking only occur in designated smoking areas. It was disputed in only one respect in Mr Aitken’s witness statement in reply and was not subject to challenge during cross-examination.
[96] Mr Aitken also admitted he had not chosen a very sensible spot to smoke and that he was close to the gas bottle on his forklift. 70 There was also a gas storage facility nearby. It was put to Mr Van Ruth during cross-examination that there were no signs in the area indicating a heightened risk from smoking but he advised there were five no-smoking signs around that area.71
[97] Additionally, Mr Aitken admitted to smoking where there was a no-smoking sign on other occasions 72 with other employees he would not name.73 As referenced above, his suggestion that this was sanctioned by Mr Van Ruth was denied. Mr Aitken also admitted to walking around the site on other occasions with a cigarette in his hand.74
[98] I do not consider the proposition that seemed to be put in Mr Aitken’s submissions that some non-smoking areas on site are more dangerous than others assists. Subscribing to this would dismantle the site requirement that smoking only occur in designated smoking areas.
[99] I am satisfied CUB was justified in including the admitted smoking incident on 1 October 2015 as part of the ‘heads’ of findings it ultimately relied on for the dismissal and Mr Aitken’s explanations that he was only doing what others did and that he was not in as dangerous a spot as he might otherwise have been do not provide reasonable excuses for his breach of a reasonable and justifiable site policy.
[100] Determining whether or not Mr Aitken was smoking in the warehouse on 13 October 2015 is reduced to a contest between his evidence and that of Mr Van Ruth’s.
[101] While Mr Samartzis also gave evidence, I am not satisfied it assists for the following reasons:
He cannot remember if Mr Van Ruth was already there when Mr Aitken stopped his forklift; 77
He cannot remember seeing Mr Van Ruth walking across the roadway; 78
He cannot remember Mr Van Ruth standing at the forklift whilst Mr Aitken was in the seat; 79
He did not stop when he saw Mr Aitken and Mr Van Ruth having a conversation; 80
He cannot remember what happened on the way out; 81
He cannot recall anything much about the event. 82
[102] Mr Aitken denied the allegation he was smoking on 13 October 2015 when it was first put to him by Mr Van Ruth. He has maintained the denial throughout the investigation process and this proceeding.
[103] CUB relies on Mr Van Ruth’s evidence that he saw Mr Aitken with a lit cigarette in his hand while driving a forklift in the warehouse. I have outlined Mr Van Ruth’s evidence in paragraphs [52]-[61] above.
[104] Given the seriousness of the allegation, I am required to have a proper degree of satisfaction that the evidence establishes, on the balance of probabilities, Mr Aitken was smoking on his forklift in the warehouse on 13 October 2015. As was found by the Full Bench in King v Freshmore (Vic) Pty Ltd: 83
“The question of whether alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 84
[105] I am not satisfied Mr Aitken was smoking in the warehouse on 13 October 2015, for the reasons I outline below.
[106] Mr Van Ruth was on a flight of stairs approximately two metres above where Mr Aitken was driving his forklift. He was not focussed on Mr Aitken as he climbed the stairs but was just walking to where he was intending to go. 85 At this point, Mr Aitken’s forklift was not carrying a load and there was evidence that the forklifts in the warehouse could travel approximately 10-12 kilometres per hour.
[107] Mr Van Ruth’s contemporaneous file note made on 13 October 2015 records him as having observed Mr Aitken holding a lit cigarette in his right hand and driving the forklift in his left. 86 A file note of the meeting held on 21 October 2015 also records that Mr Aitken was holding a lit cigarette in his right hand while driving with his left.87 However, Mr Van Ruth’s testimony at the hearing was that he did not say that he saw Mr Aitken holding a cigarette in his right hand in the meeting that day.88 He said he spoke about the left hand in the meeting and that he got it wrong when he completed the file note afterwards.89
[108] Mr Van Ruth’s testimony that he completed the file note of the meeting held on 21 October 2015 after it concluded 90 was directly contradicted by Mr Blackler, who stated that he typed the notes accurately and contemporaneously while the meeting was taking place and that Mr Van Ruth’s recollection of having prepared the document himself was incorrect.91
[109] Mr Van Ruth made a written statement prior to the hearing which included the file note made on 13 October 2015 and the file note of the meeting held on 21 October 2015 as attachments. He did not seek to clarify that he had seen Mr Aitken holding a cigarette in his left, rather than right hand prior to submitting the statement.
[110] While Mr Van Ruth alleged he found cigarette ash on the side of the forklift, there were no photographs or independent witnesses to support this assertion. His evidence was that the ash promptly disintegrated on his finger. On the other hand, there was evidence that the forklifts in the warehouse were dirty. 92 This leaves open the possibility that what Mr Van Ruth’s finger collected as he ran it along the forklift was simply an accumulation of other material present in the warehouse environment. I am therefore not satisfied on the balance of probabilities that there was cigarette ash on the forklift.
[111] No cigarette butt was found in or under the forklift and while Mr Van Ruth gave evidence that there was a waft of cigarette smell when he opened the flap on the bonnet of the forklift, there is the competing proposition that as a heavy smoker, Mr Aitken already carried the odour of cigarette smoke.
[112] In reaching this conclusion, I consider it most likely that Mr Van Ruth was mistaken in his belief about what he saw. Mr Van Ruth was shocked at what he thought he saw because of the events of 1 October 2015. There was no ill-will motivating him. Mr Van Ruth had been Mr Aitken’s manager for a long period of time. He had considered Mr Aitken to be one of ‘his boys’. He had tried to support Mr Aitken when Mr Aitken was intent on resigning his employment in December 2013 and had attempted to talk him out of it. When Mr Aitken asked for his job back, Mr Van Ruth helped facilitate his return to CUB.
[113] More objective scrutiny of the events of 13 October 2015 leads to the conclusion that it cannot be established, on the balance of probabilities, that Mr Aitken was smoking on his forklift in the warehouse.
[114] As stated above, this is not a case where alleged serious misconduct has been relied upon as a valid reason for the termination of Mr Aitken. CUB has relied on conduct it alleges was inconsistent with the trust and confidence required in the workplace. Of the conduct it relies on, I am not satisfied Mr Aitken was smoking in the warehouse on 13 October 2015.
[115] I am, however, satisfied the evidence establishes that Mr Aitken has a substantive history of holding a disregard for adhering to site policies and procedures. He has admitted to and accepted warnings for the following conduct:
[116] Additionally, I am satisfied on the balance of probabilities that Mr Aitken was given a verbal warning for smoking outside of a designated smoking area in May 2012, but he just does not recall it.
[117] Finally, Mr Aitken admitted to smoking outside of a designated smoking area on 1 October 2015.
[118] I am also satisfied that the arrangements and expectations around Mr Aitken’s return to work in March 2014 provides context for the way in which his breaches of site safety rules following it should be viewed.
[119] The importance of following safety procedures was emphasised by Vice President Hatcher in Ning Hai Zhou v Weir Minerals Australia Ltd, 93 where he found that a breach of such policies can be a valid reason for dismissal. The Vice President found in circumstances where the place of employment was a high risk working environment and the employer placed a high priority on workplace safety and was subject to statutory workplace health and safety obligations, it was entitled to impose reasonable safety rules and directions upon its employees and expect that they would be obeyed by them.
[120] I consider these conditions are present in this case and that CUB was entitled to impose reasonable safety rules and directions upon its employees and expect they would be observed by them.
[121] Where Mr Aitken has admitted to breaches of CUB site safety rules and directions, he has maintained that what he was doing was common practice and that he ended up copping a warning for something others also did. He also submitted that he changes his behaviour as a result, although in the case of his two unauthorised absences, he did not alter it after the first instance.
[122] The concerning aspect of Mr Aitken’s behaviour is that he has now breached three types of site rules and directions. In the case of the loading procedure and the smoking outside designated smoking areas, he has breached the rules and procedures despite knowing what they are. In relation to loading procedures, his evidence revealed him forming his own view on what they meant and the manner in which he should adhere to them, and then operating outside site requirements.
[123] While he submitted he would change his behaviour when found to have been in breach of one type of rule or procedure, the fact that he subsequently breached others was a justifiable cause for concern. The level of commitment to safety rules and procedures ought not be approached on a rule by rule basis.
[124] In relation to the smoking rules, I found Mr Aitken’s indifference to them very concerning. He knows what they are and he knows the consequences of failing to comply with them and yet he has made reckless decisions about where to smoke and did this on a number of occasions. 94
[125] Mr Aitken’s explanation, or lack of it for smoking on 1 October 2015, was alarming in that it seems he does not think the implications of smoking outside a designated smoking area is something to which he needs to give any thought.
[126] I am not persuaded that CUB’s initial response to Mr Aitken’s breach of the site smoking rules on 1 October 2015 diminishes its significance or the concern that should be felt about his underlying attitude to smoking on site. He had immediately admitted the breach. It was not in dispute. It has been found that a failure to comply with an employer's express policy prescriptions in relation to safety concerns, which are well advised and have a sound basis, provides a valid reason for the termination of an employee's employment. 95 Ultimately, CUB regarded it as one of the heads of findings it relied on for the dismissal.
[127] Given this pattern of behaviour, I am satisfied CUB’s reason for terminating Mr Aitken’s employment was valid. Even without being able to rely on the alleged smoking incident of 13 October 2015, Mr Aitken had consistently demonstrated that he could not or would not comply with reasonable and fundamental site rules, directions and procedures, particularly those relating to safety, despite warnings he had received along the way. I am satisfied that this pattern of conduct was ultimately inconsistent with the trust and confidence required for a continuing employment relationship.
Notification of the valid reason - s.387(b)
[128] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 96 in explicit terms97 and in plain and clear terms.98 In Crozier v Palazzo Corporation Pty Ltd99 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[129] Mr Aitken was notified of the reasons CUB relied on for his dismissal in two letters and at a meeting. Mr Aitken received a letter dated 13 October 2015. 100 It outlined the allegations and advised that an investigation into allegations of misconduct was going to be undertaken and a meeting had been arranged for 21 October 2015 for him to formally respond to the allegations. At this meeting, Mr Aitken gave his version of events.101 A further letter from CUB dated 27 October 2015102 put the findings from the investigation to Mr Aitken and he was invited to provide a response prior to a final decision being made regarding his employment.
[130] I find Mr Aitken was notified of the reason for the dismissal prior to the decision to terminate his employment.
Opportunity to respond - s.387(c)
[131] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 103
[132] As discussed in paragraph [129], Mr Aitken was invited to a meeting on 21 October 2015 to formally respond to the allegations contained in the letter of 13 October 2015. By further letter dated 27 October 2015, Mr Aitken was given an opportunity to provide any additional information he wished CUB to consider. In response, a letter dated 4 November 2015 was sent by the CFMEU to CUB on Mr Aitken’s behalf, 104 which made further submissions on CUB’s findings and provided general comments.
[133] I am satisfied Mr Aitken was given several opportunities to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[134] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[135] On 21 October 2015, Mr Aitken attended a meeting with Mr Van Ruth and Mr Blackler of CUB, 105 along with Mr Joe Myles (an organiser with the CFMEU) and Mr Les Samartzis (CFMEU delegate).106 I find that the issue of an unreasonable refusal does not arise and is not a relevant consideration.
Warnings regarding unsatisfactory performance - s.387(e)
[136] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 107
[137] In this case, Mr Aitken’s dismissal was on the basis of misconduct, not unsatisfactory performance, 108 so the issue of prior warnings does not arise, albeit he had previously been warned about a number of issues which I have documented.
Impact of the size of the Respondent on procedures followed - s.387(f)
[138] CUB employs approximately 270 people at the Abbotsford brewery. 109 It is a large company with a dedicated human resources function.110
[139] I find that the size of CUB’s enterprise did not impact on the procedures followed in effecting the dismissal.
[140] This is a neutral consideration in determining whether the termination of Mr Aitken’s employment was harsh, unjust or unreasonable.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[141] CUB has dedicated human resources personnel. 111
[142] This is a neutral consideration in determining whether the termination of Mr Aitken’s employment was harsh, unjust or unreasonable.
Other relevant matters - s.387(h)
[143] Section 387(h) of the FW Act provides the Commission with a broad scope to consider any other matters it considers relevant. I have had regard to the following matters in considering whether the dismissal of Mr Aitken was harsh, unjust or unreasonable:
[144] In Sexton v Pacific National (ACT) Pty Ltd, 112 Vice President Lawler noted:
“Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round”.”
[145] Mr Aitken is 53 years old and at the time of his termination had approximately 20 years’ service. Even though he ceased working at CUB in December 2013 due to resignation and was re-engaged in March 2014, his prior service was acknowledged when he re-commenced. 113 There was no evidence before me that would enable me to make an assessment about his future employment prospects but I acknowledge his capacity to work impacts upon this.
[146] Mr Aitken has been unfit for employment since his termination. Medical certificates describing Mr Aitken as having no capacity for employment and covering the period from 4 November 2015 to 9 March 2016 were put before me. 114 Throughout this period, each of his attention/concentration, memory and judgement are rated as “Poor”. The Medical certificates describe Mr Aitken’s Mental Health Function initially as “Severe stress and anxiety from attitudes of senior management” and then “Severe stress and anxiety from attitudes of senior management. Worse since sacking.” It is not clear what should be made of this difference. If the stress and anxiety is said to be “worse since sacking,” am I to assume Mr Aitken was experiencing some of these symptoms prior to his termination and if so, to what extent?
[147] Mr Aitken has consulted a psychiatrist 115 but there was no evidence of prognosis that would enable me to conclude whether he is capable of returning to work now or in the future or in what capacity.
[148] I have documented the evidence in relation to Mr Aitken’s disciplinary record above and my findings in relation to it. I have found he has exhibited a pattern of behaviour that demonstrates a substantive history of disregard for adhering to site policies and procedures. He has breached three different types of site rules and procedures and has exhibited a very concerning indifference to the smoking rules.
[149] As indicated above, I am satisfied the re-engagement of Mr Aitken was a significant event and provides some context around the 2014 written warning and his admitted breach of site smoking rules on 1 October 2015. Mr Aitken returned on a set of conditions that was rare and commendable in that they included back pay for the period between his resignation and re-engagement and continuity of service. Significantly, they also drew specific attention to Mr Aitken’s work health and safety obligations to himself and his colleagues upon returning.
[150] Mr Aitken’s understanding of the importance of safety and the CUB policies dealing with workplace safety have been outlined in paragraphs [25]-[28] above and in particular, he understood that smoking outside of a defined smoking area would be regarded as a breach of health and safety provisions, meaning that it could be a disciplinary issue resulting in a warning and possibly even termination.
Conclusion
[151] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied the dismissal of Mr Aitken was not harsh, unjust or unreasonable. Accordingly, I find that Mr Aitken’s dismissal was not unfair. The Application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Ms S Kelly of Counsel for the Applicant.
Mr K Brotherson for the Respondent.
Hearing details:
2016.
Melbourne:
March 3-4.
1 Exhibit A1-Annexure PA-7.
2 Exhibit A1-Annexure PA-5.
3 Applicant’s Outline of Submissions, paragraph [35].
4 Exhibit R7-Annexure GW-3.
5 Transcript PN 137.
6 Exhibit R7-Annexure GW-6.
7 Exhibit A1-paragraphs [6]–[7].
8 Exhibit A2-paragraph [10].
9 Exhibit R4-paragraph [52] and Exhibit A2-paragraph [10].
10 Exhibit A1-Annexure PA-1.
11 Transcript PN 264.
12 Transcript PN 274-275.
13 Transcript PN 745-747.
14 Exhibit R4-paragraph [22] and Annexure LVR-3.
15 Exhibit A2-paragraph [5].
16 Transcript PN 277.
17 Exhibit A1-Annexure PA-2.
18 Transcript PN 345-346.
19 Exhibit R4-Annexure LVR-1.
20 Transcript PN 359-373.
21 Exhibit A1-Annexure PA-3.
22 Transcript PN 442.
23 Exhibit A1-paragraph [20].
24 Exhibit A1-paragraphs [17]-[18].
25 Exhibit A1-paragraph [24].
26 Transcript PN 753.
27 Exhibit R4-paragraph [55].
28 Exhibit R4-paragraph [57].
29 Exhibit R4-paragraph [59].
30 Exhibit A1-paragraph [37] and Transcript PN 527.
31 Exhibit R4-paragraph [64].
32 Transcript PN 858-859.
33 Exhibit R4-Annexure LVR-6.
34 Exhibit R4-Annexure LVR-7.
35 Exhibit R4-Annexure LVR-9.
36 Transcript PN 1025-1035.
37 [1995] HCA 24; (1995) 185 CLR 410 at 465.
38 Sayer v Melsteel [2011] FWAFB 7498.
39 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
40 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
41 Ibid.
42 [2014] FWC 6539 at [37].
43 Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J.
44 Budd v Dampier Salt Ltd 166 IR 407; [2007] AIRCFB 797 at [14].
45 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, per Mason CJ, Brennan, Deane and Gaudron JJ, at [2].
46 Edwards v Giudice and Others [1999] FCA 1836, [6]-[7], per Moore J.
47 Exhibit R4-Annexure LVR-11.
48 Exhibit A1-Annexure PA-7.
49 Transcript PN 1642-1643.
50 Transcript PN 1754-1755.
51 Exhibit R4-paragraph [52(a)], Exhibit A2-paragraph [10] and Transcript PN 236-238.
52 Respondent’s Outline of Submissions- February 2015, paragraphs [38]-[39].
53 Transcript PN 1759.
54 Exhibit R4-Annexure LVR-4.
55 Transcript PN 1748 and PN 345-346.
56 Transcript PN 1819-1821.
57 Transcript PN 1103-1104.
58 Transcript PN 1601.
59 Transcript PN 1644-1645.
60 Transcript PN 1756.
61 Respondent’s Outline of Submissions- February 2015, paragraphs [38]-[39].
62 Exhibit R4-Annexure LVR- 5.
63 Exhibit A1-paragraph [24].
64 Transcript PN 1622.
65 Transcript PN 1638.
66 Transcript PN 1640.
67 Transcript PN1760.
68 Transcript PN 494-496.
69 Exhibit R4-Annexure LVR-6.
70 Transcript PN 513-514.
71 Transcript PN 1146.
72 Transcript PN 527-531.
73 Transcript PN 533-538.
74 Transcript PN 541.
75 Transcript PN 931.
76 Transcript PN 888.
77 Transcript PN 907.
78 Transcript PN 908.
79 Transcript PN 912.
80 Transcript PN 904.
81 Transcript PN 922.
82 Transcript PN 926.
83 S4213 at [24].
84 See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
85 Transcript PN 1293-1297.
86 Exhibit R4-Annexure LVR-7.
87 Exhibit R4-Annexure LVR-10.
88 Transcript PN 1300.
89 Transcript PN 1309-1317.
90 Transcript PN 1306-1308.
91 Transcript PN 1480-1481 and 1487.
92 Transcript PN 59-61 and 808-811.
93 [2014] FWC 1531 at [27].
94 Transcript PN 514, 531 and 541.
95 Abercrombie v Davidson Farm Services Trust [2010] FWA 8884 at [38].
96 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
97 Previsic v Australian Quarantine Inspection Services Print Q3730.
98 Ibid.
99 (2000) 98 IR 137 at 151.
100 Exhibit A1-Annexure PA-4.
101 Exhibit A1-paragraph [59].
102 Exhibit R4-Annexure LVR-11.
103 RMIT v Asher (2010) 194 IR 1, 14-15.
104 Exhibit A1-Annexure PA-6.
105 Exhibit A1 at paragraph [57]. Exhibit R4 at paragraph [42], Exhibit R5 at paragraph [24].
106 Exhibit R5 at paragraph [24] and Exhibit A1 at paragraph [57].
107 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
108 Transcript PN1780.
109 Respondent’s Outline of Submissions-February 2015, paragraph [6].
110 Transcript PN1781.
111 Transcript PN1782.
112 (2003) unreported, PR931440 at [30].
113 Exhibit A1-Annexure PA-2.
114 Exhibit A1-Annexure PA8 and Exhibit R3.
115 Exhibit A1- paragraph [68].
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