[2016] FWC 4575 [Note: An appeal pursuant to s.604 (C2016/4652) was lodged against this decision - refer to Full Bench decision dated18 December 2016 [[2016] FWCFB 4652] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr. Fahmid Rahman
v
Commonwealth of Australia as represented by the Australian Taxation Office
(U2015/11672)

DEPUTY PRESIDENT BULL

SYDNEY, 8 JULY 2016

Application for relief from unfair dismissal, breach of the Australian Public Service Code of Conduct, misconduct, false job applications, standard of proof, valid reason found to exist.

[1] On 7 September 2015, Mr Fahmid Rahman (the applicant) made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Rahman’s employment was terminated by the Commonwealth of Australia as represented by the Australian Taxation Office (ATO/the respondent) on 2 September 2015.

[2] Following an external independent investigation, Mr Rahman was terminated for breach of the Australian Public Service Code of Conduct 1 (the Code of Conduct). The breach involved the alleged submission of false job applications at the ATO.

[3] The originating application Form (F2) named the “Australian Taxation Office” as the employer. Pursuant to the decision in [2015] FWC 8074, the name of the respondent has been amended to reflect the correct employer being the Commonwealth of Australia as represented by the Australian Taxation Office.

[4] This matter was not subject to any conciliation as occurs through the process established by the Fair Work Commission (the Commission) as Mr Rahman maintained that the only remedy sought would be that of reinstatement, which was not considered an option by the ATO. On the basis that the ATO would not reinstate Mr Rahman as an agreed resolution, the parties requested that the matter be arbitrated 2. The matter was subsequently allocated to me for determination.

[5] Preliminary hearings with respect to the production of documents were heard on 23 and 30 November 2015, and decisions [2015] FWC 8074 and [2015] FWC 8281 were issued with respect to these matters.

[6] The substantive matter was heard on 3 December 2015, 28 January 2016 and 8 March 2016.

[7] Mr Anthony Rogers (for the applicant) and Mr Trent Glover (for the respondent), both of Counsel were granted leave to appear pursuant to s.596(2)(a) of the Act.

Background

[8] Mr Rahman commenced employment with the ATO on 28 February 2008, as an Australian Public Service Officer L4 in the role of Compliance Officer and was terminated from his employment on 2 September 2015, following a determination that he had breached the ATO Code of Conduct.

[9] The ATO engaged the legal firm Ashurst Australia to conduct an independent external investigation into the alleged breach, which concluded that Mr Rahman had breached the Code of Conduct in respect to the Code’s requirement to:

[10] The finding was that Mr Rahman had both completed and submitted or was instrumental in the submission of ‘false job applications’. 3

[11] Mr Rahman denies any such action and therefore makes no submission in respect to remorse or contrition regarding the alleged misconduct. Mr Rahman sought reinstatement as a remedy.

[12] For a period of four months between March 2015 and July 2015, Mr Rahman was suspended from duty on full pay in accordance the Public Service Regulations 1999 (Cth). During Mr Rahman’s suspension from work he initiated a number of proceedings in the Federal Court.

[13] Upon termination, Mr Rahman was paid five weeks’ payment in lieu of notice as well as a back-payment for a period of time while he was suspended without pay.

[14] As stated above, Mr Rahman seeks reinstatement as a remedy, and was unemployed at the time of hearing. Mr Rahman advised the Commission at the hearing on 28 January 2016 that he had sought alternative employment since 3 December 2015. 4

[15] The following chronology of events leading to Mr Rahman’s termination of employment were either agreed between the parties or not otherwise contested.

Facts/chronology

[16] Mr Rahman filed a general protections application against the ATO in the Fair Work Division of the Federal Circuit Court in May 2011 5, and in those proceedings filed an affidavit in February 2012.6

[17] An excerpt of that affidavit by Mr Rahman, reads at paragraph 39:

[18] The ‘dummy’ application was made in the name of Muhammad Ahsanul Haque. An investigation by the ATO identified a number of additional job applications had been made in the same name or a derivation of it.

[19] On 27 March 2013, Mr Rahman completed the ‘Ethical Behaviour Matters e-self-directed course, and on 30 May 2013 completed its associated e-assessment 8. The course involved APS employees’ obligations in respect of the APS values and ‘ethical behaviour matters’.

[20] Proceedings in the Federal Circuit Court commenced in September 2013 (Federal Court Proceeding SYG842 of 2011) 9 and a decision dismissing the application was handed down by Judge Driver in February 2014 ([2014] FCCA 6).10

[21] In March 2014, Mr Rahman filed an appeal against Judge Driver’s decision to the Federal Court which was heard on 5 November 2014 by Justice Buchanan. The appeal was dismissed on 11 December 2014 ([2014] FCA 1356). 11

[22] Subsequently, Mr Rahman filed an application for special leave to the High Court, and in February 2015, Mr Rahman was advised that the application was filed out of time and that he could make an application for an extension of time. 12 Mr Rahman filed a further application on 12 February 2015 for special leave to appeal with the High Court which was dismissed on 13 August 2015.13

[23] On 4 March 2015, Mr Rahman was issued with a letter from Robyn Clayton, Assistant Commissioner, SBIT, Authorised Person. The letter was titled “Notice of Suspected Breach of the APS Code of Conduct” 14(the Notice) advising Mr Rahman that it was conducting an investigation into his alleged breach of the Code of Conduct. The Notice is eight pages in total, the relevant sections are extracted below:

[24] A further letter from the ATO was issued to Mr Rahman on 4 March 2015, 15 stating that Mr Martin Leonard, Delegate of the Commissioner; had received the Report of the suspected breach of the APS Code of Conduct and that he would have to consider suspension of Mr Rahman’s employment. The letter provided Mr Rahman with an opportunity to make comment with respect to whether the ATO should suspend his employment with or without pay.

[25] On 13 March 2015, Ms Barbara Deegan, from Ashurst Australia was authorised by the ATO as the “Determining Officer” to undertake an external independent investigation into Mr Rahman’s alleged breach of the Code of Conduct. Investigations commenced on or around 16 March 2015. 16

[26] Mr Rahman was notified by the ATO on 17 March 2015 that he was suspended from his duties with pay, pending an investigation of his alleged breach of the Code of Conduct, in accordance with Regulation 3.10 of the Public Service Regulations 1999. 17

[27] Mr Rahman provided a written response to the Notice on 18 March 2015. 18

[28] On 24 March 2015, Ms Deegan wrote to Mr Rahman confirming that she was undertaking the investigation into his alleged breach of the Code of Conduct. 19 In that letter, Ms Deegan requested Mr Rahman attend an interview for the purposes of the investigation.

[29] The interview was conducted on 8 April 2015. In attendance was:

[30] A copy of the transcript of the interview was provided to Mr Lapidos and Mr Rahman on 13 April 2015. 21

[31] A review of the ATO’s decision (at the request of Mr Rahman on 30 March 2015) to suspend Mr Rahman with pay was upheld on 18 May 2015 22.

[32] A draft copy of Ms Deegan’s Determination (Draft Report) was provided to Mr Lapidos and Mr Rahman on 19 May 2015. 23

[33] Mr Lapidos, Mr Rahman’s union representative, provided a response to the Draft Report on 2 June 2015, 24 outlining a number of issues.

[34] On 7 July 2015, Ms Deegan determined that Mr Rahman had breached the Code of Conduct. The final Determination Report titled “Confidential Investigation Report to the Australian Taxation Office” 25 (the Determination Report) was mailed to Mr Rahman on 9 July 2015.26

[35] On 17 July 2015, the ATO’s suspension of Mr Rahman from employment with pay was changed to suspension without pay. 27 This decision was revoked on 3 September 2015, and Mr Rahman’s suspension during the period 14 August until 2 September 2015 was altered to leave with pay.28 This was following a recommendation from the Federal Court to consider Mr Rahman’s suspension from duty without pay, to account for his financial circumstances.

[36] Ms Frances Cawthra, in her capacity as appointed sanction delegate wrote to Mr Rahman on 27 July 2015, (Proposed Sanction Letter) advising Mr Rahman that in light of the Determination Report, the ATO was in the process of considering what sanction (if any) would be imposed on him. A response was also requested from Mr Rahman. 29

[37] Mr Rahman responded to Ms Cawthra on 10 August 2015. 30 In Mr Rahman’s letter he stated that the Determination Report was flawed, lacked natural justice and had failed to comply with the ATO procedures. Mr Rahman further stated that Ms Deegan had made a “draft determination” before she had allowed him the opportunity to respond to the allegations before him. In his response, Mr Rahman filed 16 supporting documents to establish that he had not breached the Code of Conduct, one of which included an independent investigation by M.I.C Lawyers31 who were engaged by Mr Rahman. The report from M.I.C Lawyers concluded that Mr Rahman did not breach the Code of Conduct.

[38] Mr Rahman filed two applications in the Federal Court challenging the validity of his suspension from employment 32 (30 July 2015 and 21 August 201533). The first application was discontinued and the second application was dismissed by Justice Flick on 9 September 2015.34

[39] Mr Rahman was terminated from his employment on 2 September 2015, via a formal written letter from Ms Frances Cawthra 35. Attached to the letter of termination was a “Notice of Termination”36 which stated that the termination would take effect from the close of business that day.

[40] The termination letter set out Mr Rahman’s alleged breaches of the Code of Conduct and the steps leading up to the decision to terminate.

[41] The Notice of Termination signed by Ms Cawthra in part reads:

Submissions and evidence of Mr Rahman

[42] Mr Rahman gave evidence before the Commission to support his case and also called Mr Muhammad Ahsanul Haque as a witness.

[43] Mr Rahman denies that he completed and submitted false job applications. Mr Rahman states that Mr Muhammad Ahsanul Haque completed and submitted the job applications of his own volition, using Mr Rahman’s own responses to address the selection criteria. Mr Rahman’s evidence was that Mr Haque obtained Mr Rahman’s selection criteria as he sent them to Mr Haque for proof reading. Mr Rahman’s explanation was as follows:

[44] Mr Rahman concedes that he was aware of the job applications which are the subject of his dismissal. 37 Because Mr Rahman did not complete or submit any false job applications, he argues that he did not breach the Code of Conduct.

[45] Mr Rahman stated that his dismissal arose as a result of proceedings he had instigated in the Federal Circuit Court which related to him being ‘passed over’ for interviews for promotions in circumstances where he thought he should have been interviewed. 38

[46] During the course of the Federal Circuit Court proceedings, Mr Rahman filed an affidavit on 22 February 2012 39 (undated)40 which states that he had completed a ‘dummy application’ under a different name.

[47] The relevant excerpt of the affidavit is as follows:

(My underline)

[48] Mr Rahman states the affidavit was true at the time he made the statement, and the reference to him having made a ‘dummy application’ was an unintentional error. 42 The affidavit was prepared by Mr Blank, his former Counsel in the Federal Circuit Court proceedings and the reference to him having filed a dummy application was a result of miscommunication with his legal representative Mr Blank.43 The miscommunication referred to by Mr Rahman is best explained via the transcript of interview44 between him and Ms Deegan (as part of the external investigation):

[49] Mr Rahman explained that the application was a ‘real application’ by Mr Haque 45, but was a ‘dummy application’ in the sense that Mr Haque had used Mr Rahman’s selection criteria response and resume in his application.46 The intention of his affidavit with reference to the ‘dummy application’ was to note that he was aware of a circumstance where another person (Mr Haque) with lesser qualifications than himself was shortlisted for the position, and that he was not.47 Mr Rahman further stated that he had attached the ‘dummy application’ to the affidavit to ‘show who made this dummy application.’48

[50] When Mr Rahman realised the erroneous statement in the affidavit, he sought to rectify it via an amended statement of claim 49 some 12 months later on 13 March 2013.50 The relevant paragraph at 28F(c) of the amended statement of claim reads:

[51] Mr Rahman stated that the relevant paragraph 28F(c) of the amended statement of claim is wrong, and at PN231 Mr Rahman stated (in reference to the amended statement claim) the following:

[52] Mr Rahman had previously given copies of his job applications to Mr Haque to assist him in addressing the criteria for job applications. 51 Mr Rahman states he did not complete any applications on behalf of Mr Haque, but was aware of Mr Haque’s applications, and had provided him with his personal selection criteria and resume to assist Mr Haque in job applications in general. Mr Rahman stated that the sharing or circulation of his personal resume and selection criteria is ‘common practice in public service’ and that in fact, he had also forwarded the same information to four or so other friends. 52

[53] Mr Rahman states he was not aware that Mr Haque had used his details in his ATO job application, 53 but knew that he applied for a position at the ATO.54 Mr Rahman only became aware that Mr Haque had used his selection criteria and resume when Mr Haque advised him that he had been shortlisted for a role sometime in March 2011.55 When Mr Haque advised him he had used his selection criteria for the ATO job application and that he was shortlisted for an interview, Mr Rahman instructed him to withdraw his application.

[54] Mr Rahman stated that he should not be penalised for another person’s wrongdoing. 56

[55] Mr Rahman did not advise the ATO that Mr Haque had applied for an ATO position using false information (his own information), giving the following reasons:

[56] Although Mr Rahman did not advise anyone at the ATO regarding Mr Haque’s job applications using his own information, he did advise his legal representative at the time, Mr Blank. Mr Rahman stated that he did not advise the ATO because he was “following their advice” 58

[57] Counsel for the respondent directed Mr Rahman to an email from the ATO to Mr Haque dated 30 March 2011. 59 That email refers to Mr Haque being selected to go through to the next stage of the recruitment process and invites Mr Haque for an interview. At the top of that email, are handwritten words which read “dummy application shortlisted”. Mr Rahman admitted in his evidence that he wrote the words “dummy application shortlisted” on the application. However, Mr Rahman did not mean that the application was not real60 and sought to rely on the fact that English is not his first language. At PN256 Mr Rahman states:

Evidence of Muhammad Ahsanul Haque

[58] Mr Haque appeared as a witness for the applicant’s case and filed a witness statement in these proceedings. 61

[59] Mr Haque is an independent contractor with a degree in accounting, but does not currently work as an accountant. 62 Mr Haque is a friend of Mr Rahman.63 Mr Haque had previously applied for positions within the ATO on approximately six occasions during his university studies,64 but stated that he did not ‘really want to work for the ATO.”65

[60] Mr Haque stated that Mr Rahman had given him his resume and selection criteria to assist with his own job applications. 66 Mr Rahman had always encouraged Mr Haque to apply for jobs,67 but had not encouraged him to use his selection criteria, but rather to refer to it as a guide.

[61] Mr Haque admitted that he used Mr Rahman’s resume and selection criteria for his job applications with the ATO. 68

[62] When Mr Haque became shortlisted for an APS6 Compliance Officer with the ATO 69 (where he was invited to an interview) he immediately notified Mr Rahman that he had used Mr Rahman’s selection criteria in his job application.70

[63] In response to why Mr Haque had omitted to provide an address for the APS6 Compliance Officer application, he stated that he was pressed for time and simply forgot to do so. 71 In that application, Mr Haque also falsely stated that he was a ‘financial accountant’ at Suncorp, when he did not hold that position.72 Mr Haque further conceded that he had made other false statements in the application relating to his duties as a financial accountant at Suncorp.73

[64] Mr Haque admitted that he also submitted false information for another APS6 Compliance Officer ATO job application, by stating that he was a financial accountant at Suncorp. 74

[65] Mr Haque was questioned with respect to his ATO job applications where either his address was not provided, or had contained different addresses. 75 In response, Mr Haque stated that he was either pushed for time and therefore did not provide an address, or had forgotten to do so.76

[66] With respect to the discrepancies in the address field of the applications, Mr Haque stated that he lived with Mr Rahman in Roselands for approximately 3 years, but in some instances would stay at his uncle’s place in Punchbowl. 77

[67] Mr Haque stated that despite living with Mr Rahman during the period where Mr Rahman had commenced proceedings in the Federal Circuit Court, he had no knowledge that Mr Rahman had commenced General Protection proceedings against the ATO with respect to being ‘passed over’ for interviews. 78

[68] Mr Haque did not attend the interview which he was short-listed for because Mr Rahman had instructed not him not to do so. 79

Submissions and evidence of the respondent

[69] The ATO led evidence before the Commission that it had considered, based on the evidence before it, and on the balance of probabilities, that Mr Rahman completed and submitted or was instrumental in the submissions of five ‘false’ ATO job applications, 80 which is a breach of the APS Code of Conduct. Evidence was adduced from:

Evidence of Frances Cawthra

[70] Ms Cawthra has been employed by the ATO as Chief Finance Officer for approximately three and a half years, and has worked with the ATO for approximately ten years. Under the Public Service Act 1999 (Cth) (the Public Service Act); Chief Finance Officers hold delegation powers to sanction APS employees within the ‘agency’ 81 who have been found to have breached the Code of Conduct. Ms Cawthra was appointed as the ‘sanction delegate’ to consider and decide the sanction (if any) to be imposed arising from Mr Rahman’s alleged breach of the Code of Conduct.

[71] The role of the sanction delegate is to undertake a review of all the documentation provided, including the Determining Officer's Report, provide and ask for any other documentation that is required to be able to consider the matter fully taking into account the ATO's processes and procedures around what a sanction delegate is to do and to consider, and then to determine an appropriate sanction, if any. 82

[72] Ms Cawthra has acted in the capacity of sanction delegate in a variety of sanction cases. 83

[73] On 17 July 2015, Ms Cawthra was requested to consider and decide the sanction (if any) to be imposed on Mr Rahman following a determination that he breached the APS Code of Conduct 84 in the final Determination Report.”85 Ms Cawthra advised Mr Rahman of a potential sanction following the determined breach of the Code of Conduct in a formal letter dated 27 July 2015.86 The letter in part reads:

Relevance of the breaches to the employee’s duties and reputation of the ATO

Previous Breaches of the Code of Conduct

Effect of the proposed action on the employee

[74] In reference to questions arising from cross examination regarding the weight Ms Cawthra had placed on the Determination Report in the decision to terminate Mr Rahman’s employment, Ms Cawthra stated that she was presented with, and reviewed a large amount of other material in reaching the decision. This included:

[75] In outlining the reasons for her decision to terminate Mr Rahman’s employment, Ms Cawthra stated that she found the evidence provided by Mr Rahman “quite difficult” and was “at odds with the evidence.” 89 Ms Cawthra agreed with the processes and outcomes contained in the Determination Report and considered the Determination Report in conjunction with the MIC Lawyers’ investigation report as well as the response to the proposed sanction filed by Mr Rahman.90 Mr Rahman’s employment history, given that he had previously breached the Code of Conduct was also relevant in her decision.91

[76] In response to determining the severity of Mr Rahman’s misconduct which constituted the breach, upon review of the evidence, Ms Cawthra concluded that Mr Rahman had either:

[77] In determining the appropriate sanction for Mr Rahman’s breach, Ms Cawthra took into consideration:

[78] Ms Cawthra stated that the misconduct by Mr Rahman was of a level of severity, which represented a fundamental breach of trust with the ATO as his employer. 94

[79] Ms Cawthra stated that Mr Rahman, like all ATO employees had received induction and on-going training regarding conflicts of interest or perceived conflicts of interest. Further, ATO employees also go through an online training program regarding the APS values and the APS Code of Conduct. 95

[80] In response to Mr Roger’s cross examination with respect to English not being Mr Rahman’s first language, Ms Cawthra responded by stating that Mr Rahman “seemed to have a very good grasp of English” based on the evidence provided in his applications to the ATO. 96 Ms Cawthra also referred to Mr Rahman’s Master’s Degree being obtained in Australia.

[81] Following the proposed sanction letter to Mr Rahman on 27 July 2015, Ms Cawthra adjourned the sanction process on or around 12 August 2015, as a result of the issues arising from the second Federal Circuit Court proceedings. 97 The sanction process recommenced on or around 25 August 2015 when Ms Cawthra requested Mr Sheil (General Counsel, ATO) to forward Mr Rahman’s response to the Determination Report (which contained the MIC Lawyers’ investigation report)98 to Ms Deegan (the Determining Officer) for consideration.

[82] On 2 September 2015, Ms Cawthra was advised that Ms Deegan had considered the response filed by Mr Rahman, and that there was nothing contained in the response that would persuade her to vary any finding made in the Determination Report. 99

[83] Ms Cawthra issued a letter of termination to Mr Rahman on 2 September 2015. 100

Evidence of Barbara Deegan

[84] Ms Deegan, a consultant engaged by Ashurst Australia is the authorised independent investigator (referred to as ‘Determining Officer’) in relation to the allegations of Mr Rahman’s breaches of the Code of Conduct. Ms Deegan authored the “Confidential Investigation Report to the Australian Taxation Office” dated 7 July 2015 101 (the Determination Report), which determined that Mr Rahman had breached sections 13(1), 13(9) and 13(11) of the APS Code of Conduct. Ms Deegan was authorised as Determining Officer in 13 March 2015.102

[85] As part of the investigation, Ms Deegan reviewed a large number of documents provided by the ATO. 103

[86] Ms Deegan advised Mr Rahman in an email dated 24 March 2015 104 that she had been engaged to investigate his alleged breach of the Code of Conduct. That email requested Mr Rahman provide statements from Mr Blank (Mr Rahman’s former legal representative) and Mr Haque. Ms Deegan also requested Mr Rahman attend an interview regarding the allegations against him.

[87] Mr Rahman provided Ms Deegan with additional material on 24 March 2015. This comprised of Mr Haque’s statement and a tax invoice from Mr Blank. 105

[88] Ms Deegan interviewed Mr Rahman on 8 April 2015. Mr Lapidos, Mr Rahman’s ASU representative, was also in attendance.

[89] On 16 April 2015, Ms Deegan asked Mr Rahman whether he required Mr Haque to be interviewed. 106 Mr Rahman responded to Ms Deegan stating that “Mr Haque wanted questions through email so there is no more misunderstanding”.107

[90] Ms Deegan contacted Mr Haque directly on 20 April 2015, requesting him to participate in an interview. 108 Mr Haque declined to participate in an interview on 21 April 2015109 but provided a further statement.110

[91] Ms Deegan outlined numerous correspondences which were exchanged between her, Ms Robyn Clayton (ATO Assistant Commissioner, Small Business/Individual Taxpayers) Mr Rahman and Mr Lapidos. 111 The correspondence included Mr Rahman and Mr Lapidos expressing dissatisfaction with the transcript of the 8 April 2015 interview and that Ms Deegan’s contact to Mr Haque was a “breach of his privacy”.112 Mr Rahman referred to Ms Deegan’s investigation as a ‘witch hunt’.113

[92] Ms Deegan sent Mr Rahman and Mr Lapidos a draft copy of the Report (the Draft Report) on 19 May 2015, which requested any comment to be made by 26 May 2015. 114 A copy of the updated transcript of the 8 April 2015 interview with the proposed amendments by Mr Rahman and Mr Lapidos was also provided. The Draft Report concluded that Mr Rahman had breached the Code of Conduct.

[93] Mr Lapidos requested an extension for the filing of a response on 26 May 2015, 115 which was granted by Ms Deegan.116

[94] Mr Lapidos wrote to Ms Deegan identifying a number of concerns with the Draft Report on 2 June 2015. 117 The letter stated that Mr Rahman had been denied procedural fairness by the manner in which the Determination was conducted. The relevant concerns raised included:

[95] Ms Deegan responded to Mr Rahman and Mr Lapidos on 4 June 2015 118 addressing the concerns raised by Mr Lapidos. The relevant sections of the letter addressing the issues identified above are extracted below:

[96] On 9 June 2015, Mr Lapidos responded to Ms Deegan’s letter 119 dated 4 June 2015, (extracted above in part). Ms Deegan also received an email from Mr Rahman on 9 June 2015, attaching an application and affidavit that he had filed at the Federal Court of Australia. Ms Deegan was named as the sixth respondent to the application.120

[97] On 10 June 2015, Mr Lapidos requested a three week extension to file further submissions to the Draft Report. 121 Ms Deegan granted a one week extension on 11 June 2015122 and provided an updated Draft Report which incorporated the issues raised by Mr Lapidos regarding standard of proof.123

[98] Mr Lapidos requested a further extension to file a response to the Draft Report on 18 June 2015. 124 This was granted by Ms Deegan on 19 June 2015.125

[99] Mr Lapidos wrote to Ms Deegan on 3 July 2015 126 advising that he was still of the view that there was a reasonable apprehension of bias. Mr Lapidos suggested that Ms Deegan step aside as the Determining Officer due to apprehended bias.

[100] Mr Lapidos also advised that Mr Rahman had filed an application under s.739 of the Fair Work Act 2009 with the Commission with respect to Ms Deegan having conducted the investigation in a bias manner. 127 The relief sought under the s.739 application was that Ms Deegan be removed as the Determining Officer.128

[101] Ms Deegan responded to Mr Lapidos on 7 July 2015 stating that she had considered his request but that she would not delay the final determination of whether Mr Rahman had breached the Code of Conduct. 129

[102] Ms Deegan determined that Mr Rahman had breached the Code of Conduct on 7 July 2015 and a copy of the Determination Report was sent to Mr Rahman on 9 July 2015. 130

[103] In response to why Ms Deegan did not accept Mr Rahman’s explanation that he did not draft the affidavit, but Mr Blank did and that Mr Rahman had failed to read it properly, 131 she stated that she did not know why Mr Rahman did not read his own affidavit.132 Ms Deegan also referred to 4.1(b) of the Determination Report133 where Ms Deegan states:

[104] Ms Deegan referred to the transcript of the 8 April 2015, interview, 134 the relevant excerpt of the interview appears at page 17 of the transcript:

Mr Rahman: No, I didn’t

[105] It was Ms Deegan’s evidence that she had complied with the required processes in reaching her determination, the Determination Report contains:

Relevant Legislation

[106] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows:

[107] The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:

[108] The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Rahman is not a person protected from unfair dismissal. The ATO is not an employer covered by the Small Business Code.

Consideration

[109] In this matter, there was a large volume of material in the form of statements and oral evidence to consider and written and oral submissions presented. I have had regard to all the material which is relevant to the requirements of s.387 in considering whether Mr Rahman’s termination of employment by the ATO was harsh, unjust or unreasonable.

[110] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

(b) whether the person was notified of that reason; and

(h) any other matters that the FWC considers relevant.”

[111] I will now consider each of these factors in turn.

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[112] Mr Rahman was dismissed following the determination that in 2011, Mr Rahman had submitted a false ATO job application with the ATO in his own name and numerous “false applications” under the names ‘Muhammad “Ahsanul” Haque’ and ‘Ahsanul Haque’. This misconduct was amongst other things a breach of the APS Code of Conduct.

[113] Mr Rahman was found to have contravened s 13 of the Public Service Act 1999 (Cth) (the “Public Service Act”) by having breached the APS Code of Conduct 135. The relevant sections are extracted below:

[114] Section 15(1)(a) of the Code of Conduct 136 clearly states that termination of employment is a sanction that may be imposed for a breach of the Code of the Conduct.

[115] The breaches concerned Mr Rahman having either completed and submitted, or being instrumental in the submission of five ‘false’ ATO job applications 137 being:

[116] Counsel for Mr Rahman submits that the ATO’s entire case stands or falls on whether Mr Rahman created the ‘dummy’ job application for the position of APS 6 Compliance Officer   on 9 March 2011. 139 Mr Rahman states that he did not complete and submit any false job applications and did not make any declarations as to their accuracy as held by the ATO.140 Mr Rahman admitted that he was aware of their existence.141

[117] The applications referred to as ‘false applications’ by the ATO were said by Mr Rahman to have been completed by Mr Muhammad Ahsanul Haque. Mr Rahman had previously provided his resume and selection criteria to Mr Haque.

[118] The Determination Report was completed on 7 July 2015 by Ms Deegan, and a copy of the Determination Report was provided to Mr Rahman on 9 July 2015. Ms Deegan gave evidence in these proceedings.

[119] The Federal Industrial Relations Court 142 considered the concept of a valid reason for termination in Selvachandran v Peteron Plastics Pty Ltd143 (Selvachandran), a decision of Northrop J. Despite being a case under previous legislation, it is applied in this Commission. In Selvachandran, his Honour found that:

[120] Comments made by Wilcox CJ in Kenefick v Australian Submarine Corporation Pty Ltd 144 are also relevant in considering the meaning and approach to ‘valid reason’:

[121] It is well established that an assessment of whether a dismissal is harsh, unjust or unreasonable does not involve the Commission putting themselves in “the shoes” of the employer and determining what he or she would have done in the circumstances, but is to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 145

[122] A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal. 146

[123] Accordingly, the task in establishing whether the ATO had a valid reason to terminate Mr Rahman’s employment lies in whether the Commission is satisfied that Mr Rahman created or was instrumental in the submission of false job applications to the ATO.

[124] The ATO relied on the Determination Report that Mr Rahman had breached the Code of Conduct as justification for the dismissal which were summarised in Mr Rahman’s letter and notice of termination.

[125] In the Determination Report, Ms Deegan concluded that on the balance of probabilities, Mr Rahman had both completed and submitted, or was instrumental in the submission of five ‘false’ ATO job applications.

[126] Nothing arising from Ms Deegan’s evidence before the Commission including her cross examination by counsel for Mr Rahman places her conclusions in a light, other than being reasonable and defensible on the evidence that was before her, acknowledging that Mr Haque declined to be interviewed but gave evidence in these proceedings.

[127] There is a clear causal connection between the reasons for the ATO’s decision to terminate Mr Rahman being a response to the allegation that Mr Rahman was instrumental in the alleged false job applications.

[128] As was in my view correctly asserted by counsel for Mr Rahman, if he did not create the ‘dummy’ job application or partake in any subsequent job applications, then it must follow that there is no valid reason for his dismissal.

[129] The applicant submits that if the respondent cannot prove Mr Rahman’s misconduct strictly on the balance of probabilities, then he must be entitled to a remedy. 147

Standard of proof

[130] The ATO disagreed with the applicant’s submission that the Commission must be satisfied on the balance of probabilities of Mr Rahman’s misconduct. 148 In this respect, the ATO argued that the Commission is not bound by the rules of evidence as per s.591 of the Act, and as such would be incorrect to refer to the issues of ‘standard of proof’.

[131] In relation to the balance of probabilities, the High Court in Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) 110 ALR 449, made the following observations:

(My underline)

[132] This was the approach adopted in the Australian Industrial Relations Commission in Brinks Australia Pty Ltd v Transport Workers’ Union of Australia 149 where the Full Bench stated:

[133] Accordingly, in considering whether there was a valid reason for the dismissal of Mr Rahman, and while not being bound by the rules of evidence, it is necessary, having regard to the nature of the evidence for the Commission to reach a conclusion by reference to the balance of probabilities.

Evidence before the Commission

[134] Ms Deegan, author of the Determination Report was subject to cross examination. I did not observe there to be any factual differences in her evidence in contrast to her Determination Report. The evidence of Ms Cawthra, the sanction delegate who made the decision to terminate Mr Rahman’s employment was consistent in her evidence before the Commission.

[135] The sole witness for the applicant was Mr Haque who stated that he personally submitted the ATO job applications (which form the subject of Mr Rahman’s dismissal) using Mr Rahman’s selection criteria. The Determination Report outlined that as part of the investigation procedure, Mr Haque was invited to attend an interview but declined. 150 At page 651 of the Determination Report, Ms Deegan stated:

[136] Mr Haque appeared before the Commission, and gave evidence that he applied for the ATO positions of his own volition. My observations of Mr Haque’s evidence were that it was not given in a forthright or confident manner.

[137] Mr Rogers, Counsel for the applicant cross examined Ms Deegan on why she rejected Mr Rahman’s explanations, in particular Mr Rahman’s claim that he did not make the affidavit, and that Mr Blank had done so with some misunderstanding. Mr Rahman had merely failed to read the affidavit before signing it. 151 Mr Rogers also noted that Ms Deegan did not contact Mr Blank as part of the investigation.152

[138] It is inferred that Mr Rahman’s speech (English not being his first language) and his tendency to ‘babble’ 153 may be attributable to the misunderstanding between Mr Rahman and Mr Blank culminating in the erroneous references contained in the affidavit, stating that Mr Rahman had made the dummy application.

[139] Ms Deegan stated that she had no issues understanding Mr Rahman during her interview with him, and how Mr Blank ‘could have got it so wrong if Mr Rahman had explained it to him the way that he had tried to explain it to me.’ 154 Mr Rahman has been before the Commission on a number of occasions in these proceedings, and on two of those occasions represented himself.155 I personally did not observe Mr Rahman to have any difficulty with his grasp of the English language. I also have regard to his long employment history and educational background and find that this is not a plausible explanation for the misunderstanding.

[140] Mr Rahman conceded that when he was made aware that Mr Haque had used his selection criteria and provided false information in his job application, he neglected to advise his employer. 156

[141] In Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229 a Full Bench of the Industrial Commission of South Australia stated:

[142] The findings made by Ms Deegan in the Determination Report demonstrate that the ATO properly analysed and evaluated the evidence regarding Mr Rahman’s alleged breach of the Code of Conduct. Ms Cawthra took into account the Determination Report in conjunction with Mr Rahman’s employment history. Ms Cawthra also demonstrated that she considered the responses provided by Mr Rahman in response to the proposed sanction by forwarding his response to Ms Deegan for further review. Ms Cawthra effected Mr Rahman’s termination upon receiving confirmation from Ms Deegan that his responses would not alter the Determination Report.

Mr Blank

[143] Mr Rahman takes issue with Ms Deegan not approaching Mr Blank as part of her investigation. However, I note that in an email dated 24 March 2015, 157 Ms Deegan requested that Mr Rahman provide statements from Mr Blank as a matter of urgency.

[144] There was no response from Mr Rahman regarding obtaining statements from Mr Blank. During the hearing, a copy of an email from Mr Blank to Mr Rahman dated 25 March 2015 158 was tendered by the applicant.

[145] The email from Mr Blank appeared to be in response to an email sent by Mr Rahman on 18 March 2015 159:

[146] I accept that it may have been beneficial for the ATO to have directly communicated with Mr Blank regarding the affidavit. However, Ms Deegan attempted to obtain this information in the form of a statement. Mr Rahman did not call Mr Blank to support his position before the Commission.

[147] Mr Rahman asserts that Mr Blank had misunderstood his instructions, which led to the erroneous statement in his affidavit that he had submitted a ‘dummy application’. An affidavit, in the context of court proceedings serves as evidence as to its veracity. In this context, it is therefore reasonable for a third party to rely on statements made in affidavit as fact, and for the ATO to conclude that Mr Rahman had submitted the ‘dummy application’.

[148] Accepting Mr Rahman’s argument that the affidavit was not as he intended and that it was Mr Haque who submitted the ‘dummy application’, it is difficult to comprehend why the the amended statement of claim 160 did not state that Mr Haque had drafted the application.

Mr Haque’s evidence

[149] Mr Haque’s evidence was that he used Mr Rahman’s selection criteria and resume in the applications. As stated above, Mr Haque was not an impressive witness, he was unfamiliar with the detail of the job applications which he stated he had applied for. This was despite having applied on six separate occasions for a position at the ATO. He admitted that he had acted dishonestly and provided false information in most aspects of his ATO job applications where he had used Mr Rahman’s selection criteria and resume.

[150] Mr Haque stated that he did not “really want to work for the ATO”. 161 This is in contrast to Mr Haque’s evidence at the Federal Court proceedings (which has been tendered as evidence in these proceedings) where he stated that he “just wanted to get a job in the ATO”.162

[151] Mr Haque was unable to provide a plausible explanation as to why he omitted to provide,or provided incomplete details of his residential address and dates in his job applications. His response was that on occasions he was in a hurry to file the job application. 163

[152] As Mr Haque did not make himself available to the investigation undertaken by Ms Deegan, she therefore relied on the evidence given by him in the Federal Circuit Court proceedings. Mr Haque’s evidence at those proceedings also appears to be inconsistent, and contradictory, for example:

[153] Mr Haque, under cross examination stated that he had shared a house with Mr Rahman for ‘two, three years’. 168 Having regard for Mr Haque’s evidence that he obtained Mr Rahman’s employment history details to complete the selection criteria and having shared a house at the relevant time, it is in my view inconceivable to accept that Mr Haque had no knowledge of Mr Rahman’s Federal Court proceedings.169

[154] Why he was applying for jobs with false information while still studying and how copying Mr Rahman’s selection criteria responses assisted him in learning how to complete job applications was not explained satisfactorily. 170

[155] Based on the inconsistencies in Mr Haque’s evidence in these proceedings, and upon analysis of the evidence given by Mr Haque in the Federal Circuit Court proceedings, I have difficulty in accepting the credibility of Mr Haque as a reliable witness.

Valid Reason

[156] I do not find that Mr Rahman’s explanation regarding the statement in his affidavit that he made a dummy application under a different name in any way convincing. There was no evidence to support the argument that his barrister had misconstrued his instructions. His explanation in respect of the amending affidavit under cross examination was as follows:

[157] To this extent, I conclude that Mr Rahman either submitted or was instrumental in Mr Haque’s APS 6 Compliance Officer Role job application.

[158] However, I am not satisfied that the five other ATO job applications made by Mr Haque, were necessarily made by Mr Rahman. The ATO point to the similarities between the APS 6 application and the five other ATO job applications made by Mr Haque. The ATO conclude that Mr Rahman was instrumental in Mr Haque’s five other ATO job applications by way of ‘linking’ the APS 6 role to the other applications.

[159] At 4.1(i) of the Determination Report, 171 it states:

[160] I agree that there are similarities between the job applications, but do not form the view that such an inference is conclusive. Where conduct of the applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged occurred. 172

[161] On the evidence before the Commission, I accept that Mr Rahman did as he stated in his affidavit and submitted a false application under a different name, that being Mr Haque. I am not persuaded as Mr Rahman argued that Mr Blank, his barrister, misunderstood his instructions.

[162] However, having arrived at the above conclusion, I am not satisfied to the requisite degree that by way of inference and similarity that Mr Rahman can be held responsible for either filing or being instrumental in the filing of the five other ATO job applications under the name of Mr Haque or a derivative of that name. Although, I find the purpose of the other applications on Mr Haque’s evidence is unclear and confusing.

[163] I am satisfied that on the balance of the probabilities, the misconduct alleged by the ATO did occur in respect to at least the 9 March 2011 APS 6 Compliance Officer application in the name of Muhammad Ahsanul Haque. That is that Mr Rahman acted in breach of the Code of Conduct in either completing the false application or knowingly assisted Mr Haque to do so. Given that, I am satisfied that this constitutes a valid reason for Mr Rahman’s termination of employment.

Section 387(b) and (c) - whether the person was notified of that reason and whether they were given an opportunity to respond

[164] Mr Rahman was first notified on 4 March 2015, that the ATO was conducting an investigation into his alleged breach of the Code of Conduct. 173 At paragraph 36 of the 4 March 2015, letter of notification it states that termination of employment is a possible sanction for a substantiated breach.174

[165] On 17 March 2015, Mr Rahman was notified that he was suspended from his duties pending an outcome of the investigation. 175

[166] On 8 April 2015, Mr Rahman attended an interview with Ms Deegan for the purposes of the investigation into his alleged breach. A transcript of the interview was provided to Mr Rahman and Mr Lapidos (Mr Rahman’s union representative) for review.

[167] A Draft Determination Report setting out the findings of the investigation was provided to Mr Rahman for comment on 19 May 2015. 176 A number of extensions were granted to Mr Rahman to file a response.

[168] Mr Rahman was further advised on 27 July 2015, that in light of the Determination Report, Ms Cawthra was in the process of determining what sanction to impose (if any). A further opportunity to respond was offered to Mr Rahman.

[169] Mr Rahman’s responses were referred to Ms Deegan before a final termination letter was issued to Mr Rahman on 2 September 2015. The letter of termination set out the reasons for Mr Rahman’s termination.

[170] I am satisfied that the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances and provided Mr Rahman with a reasonable opportunity to respond (a number of extensions were granted for the filing of responses). While the decision to terminate Mr Rahman’s employment was not until a considerable period of time had elapsed since the offending conduct came to the attention of the ATO, the decision was considered and made only after an exhaustive investigation was undertaken. I do not find there was any condonation of Mr Rahman’s conduct.

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

[171] Mr Lapidos, Mr Rahman’s union representative was present during the investigation interview. The ATO had also corresponded with Mr Lapidos on a number of occasions during the process which ultimately lead to Mr Rahman’s dismissal.

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

[172] The dismissal related to a breach of the Code of Conduct rather than unsatisfactory performance.

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

[173] The ATO is an agency of the Commonwealth, which operates under the Public Governance, Performance and Accountability Act 2013, within the Treasury portfolio, and is accountable under the Public Service Act 1999. Under the Public Service Act 1999, certain delegates are appointed regarding procedures followed in effecting a dismissal.

[174] The ATO is a large public body with no shortage of human resources. It has management and supervisory employees dealing with employment issues on a day to day basis and a dedicated human resources management team. The process followed by the ATO leading to Mr Rahman’s dismissal was thorough and comprehensive reflecting the human resource competencies within the ATO.

Section 387(h) - any other matters that the FWC considers relevant

[175] Having found that a valid reason existed for the termination of Mr Rahman, I was not directed to any other matters not discussed above, that would lead me to conclude that the dismissal was harsh, unjust or unreasonable. The ability to take into consideration any mitigating circumstances is severely curtailed on the basis that Mr Rahman denies having engaged in the misconduct he has been found to have been involved in.

Conclusion

[176] Having found that there was a valid reason for the dismissal and having considered all the other criteria under s.387; I find that Mr Rahman’s termination was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed.

al of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:

Mr A. Rogers of Counsel for Mr Rahman

Mr T. Glover of Counsel for the ATO

Hearing details:

Sydney

2015

23, 30 November

3 December

2016

28 January

8 March

 1   Exhibit FC4 of Exhibit R1 at page 16

 2   Letter from K&L Gates (representatives for the respondent) to the Commission dated 28 September 2015

 3   Respondent’s Outline of Submissions16 November 2015 at 4.3

 4   Exhibit A5

 5   See paragraph 4 of question 3.2 of Mr Rahman’s application and PN96

 6   PN113 to PN115

 7   Annexure FC38 of Exhibit R1 at page 438, see also PN122 to PN125

 8   PN94, Page 6 of Exhibit A1 and Page 209 of Exhibit R1

 9   PN1030 to PN1031, see also page 215 of Exhibit R1

 10   PN1048

 11   PN1048 and paragraph 20 of Annexure 27 of Exhibit R1

 12   PN1050

 13   Rahman v ATO [2015] HCASL 126 Footnote 28 of ATO closing submissions

 14   Annexure FC8 of Exhibit R1 at page 115

 15   Annexure FC15 of Exhibit R1 at page 183

 16   Exhibit R2 at paragraph 8

 17   Annexure FC17 of Exhibit R1 at page 186

 18   Annexure FC9 of Exhibit R1

 19   Annexure BD19 of Exhibit R2 at page 321

 20   See paragraph 16 of Barbara Deegan’s statement and Annexure BD3 of Exhibit R2 at page 20.

 21   Annexure BD27 of Exhibit R2 at page 367

 22   Annexure FC19 of Exhibit R1 at page196

 23   Annexure BD57 of Exhibit R2 at page 517

 24   Annexure BD62 of Exhibit R2 at page 592

 25   Annexure BD73 of Exhibit R2 at page 642

 26   See paragraph 66 of Ms Deegan’s statement

 27   Annexure FC21 of Exhibit R1 at page199

 28   Annexure FC24 of Exhibit R1 at page 203

 29   Annexure FC29 to Exhibit R1 at page 221

 30   Annexure FC30 to Exhibit R1at page 225

 31   Annexure FC31 to Exhibit R1at page 235

 32   See paragraph 34, page 4 of Exhibit R1,

 33   Applicant provided the filed applications with the application

 34   [2015] FCA 988

 35   Annexure A of Exhibit A1

 36   Ibid

 37   See paragraphs 8 to 9 of Exhibit A1

 38   Paragraph 7 of Mr Rahman’s submissions and paragraphs 12 to 13 of Exhibit A1

 39   Paragraph 14 of Exhibit A1 and PN125 to PN128

 40   See PN236 to PN238 and PN241

 41   Annexure FC38 of Exhibit R1 at page 438, see also PN122 to PN125

 42   PN168

 43   Paragraph 6 of the application and PN185

 44   Annexure BD27 of Exhibit R2 at page 382

 45   PN189

 46   PN232

 47   Paragraphs 14 to 21 of Exhibit A1

 48   PN231 to PN232

 49   Annexure FC36 of Exhibit R1 at page 416

 50   PN198

 51   Paragraph 10 of Exhibit A1

 52   Paragraphs 10 to 11, and 17 to 21 of Exhibit A1 and PN436

 53   PN276

 54   Paragraph 10 of Exhibit A1

 55   PN276

 56   PN436

 57   PN314

 58   PN327

 59   Annexure FC32 of Exhibit R1 at page 236

 60   PN256

 61   Exhibit A2

 62   PN470

 63   Paragraph 1 of Exhibit A2

 64   Paragraph 3 of Exhibit A2 and PN473 to PN475

 65   PN596

 66   Paragraph 4 of Exhibit A2 and PN478

 67   PN478

 68   PN481

 69   Annexure FC32 of Exhibit R1 at page 236

 70   PN491 to PN495

 71   Annexure FC32 of Exhibit R1 at page 238 and PN506

 72   PN514 to PN519

 73   PN523 to PN533

 74   PN546 to PN547

 75   PN506, PN 549-554

 76   PN506 and PN549

 77   See PN753 to PN757

 78   PN760 to PN763

 79   Paragraph 7 of Exhibit A2

 80   Respondent’s outline of submissions at 4.3

 81   As defined under s.7 of the Public Service Act 1999

 82   PN941

 83   Paragraph 6 of Exhibit R1 – Ms Cawthra’s statement

 84   Exhibit FC4

 85   Annexure FC11 of Exhibit R1 at page 151

 86   Annexure FC29 of Exhibit R1 at page 151

 87   PN952

 88   PN942 and paragraph 37 of Ms Cawthra’s statement(Exhibit R1), see also paragraph 2 of Annexure FC29 of Exhibit R1

 89   PN959

 90   Paragraphs 50(b)(i) to (iii) of Ms Cawthra’s statement- Exhibit R1

 91   PN959

 92   PN1011

 93   Paragraph 51 of Ms Cawthra’s statement- Exhibit R1

 94   Paragraph 55 of Ms Cawthra’s statement- Exhibit R1

 95   PN960 to PN962

 96   PN981

 97   Paragraph 42 of Ms Cawthra’s statement – Exhibit R1

 98   Annexure FC31 to Exhibit R1at page 235

 99   Paragraph 45 of Ms Cawthra’s statement – Exhibit R1

 100   Annexure A of Exhibit A1

 101   Annexure BD73 of Exhibit R2 at page 645

 102   Annexure BD1 of Exhibit R2 at page 10

 103   The documents are listed at 3.2 of the Determination Report and at paragraph 8 of Ms Deegan’s statement- Exhibit R2

 104   Annexure BD19 of Exhibit R2 at page 321

 105   Annexure BD20 of Exhibit R2 at page 322

 106   Annexure BD33 of Exhibit R2 at page 421

 107   Annexure BD35 of Exhibit R2 at page 431

 108   Annexure BD38 of Exhibit R2 at page 436

 109   Annexure BD40 of Exhibit R2 at page 440

 110   Ibid at page 442

 111   Paragraphs 31 to 55 of Ms Deegan’s statement – Exhibit R2

 112   Annexure BD41 of Exhibit R2 at page 443

 113   Annexure BD43 of Exhibit R2 at page 447

 114   Annexure BD57 of Exhibit R2 at page 517

 115   Annexure BD58 of Exhibit R2 at page 576

 116   Annexure BD59 of Exhibit R2 at page 578

 117   Annexure BD62 of Exhibit R2 at page 592

 118   Annexure BD63 of Exhibit R2 at page 596

 119   Annexure BD64 of Exhibit R2 at page 598

 120   Paragraph 56 of Ms Deegan’s statement – Exhibit R2, See also Annexure BD65 of Exhibit R2 at page 600

 121   Annexure BD67 of Exhibit R2 at page 604

 122   Annexure BD68 of Exhibit R2 at page 605

 123   Ibid at page 606

 124   Annexure BD69 of Exhibit R2 at page 623

 125   Annexure BD70 of Exhibit R2 at page 625

 126   Annexure BD71 of Exhibit R2 at page 626

 127   Annexure BD70 of Exhibit R2 at page 629

 128   Ibid at question 8 on page 631

 129   Annexure BD72 of Exhibit R2 at page 642

 130   Paragraph 66 of Ms Deegan’s statement – Exhibit R2

 131   PN1362 to PN1370

 132   PN1368

 133   Annexure BD73 of Exhibit R2 at page 652

 134   Ibid

 135   Annexure FC8 of Exhibit R1 at page 115

 136   Annexure FC4 of Exhibit R1 at page 18

 137   Respondent’s written closing submissions at 4.7, See also Annexure BD73 of Exhibit R2 (Determination Report) at page 656

 138   This is the ‘dummy application’ referred to in Mr Rahman’s affidavit in the Federal circuit Proceedings- see Annexure FC38 of Exhibit R1 at page at page 438, see also PN122 to PN125

 139   Point 2.5 of the applicant’s written closing submissions

 140   Exhibit A1 at paragraph 7

 141   Ibid at paragraph 10

 142   As is then existed

 143   (1995) 62 IR 371

 144   (1995) 131 ALR 197, (1995) 62 IR 107 at 116

 145   As per Moore J inWalton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685

 146   Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 (unreported, Hatcher VP, 10 June 2014) [62]; citing B, C and D v Australian Postal Corporation (2013) 238 IR 1 [36].

 147   See paragraphs 2.6 to 3.4 of the applicant’s written closing submissions

 148   Paragraph 6.4 of the respondent’s written closing submissions in reply

 149   PR922612

 150   Annexure BD73 of Exhibit R2 at page 648 of the Determination Report

 151   PN1374 to PN1375

 152   PN1375

 153   PN1417 to PN1422

 154   PN1411

 155   Hearings for the production of documents ([2015] FWC 8074 and [2015] FWC 8281)

 156   PN304 to PN305

 157   Annexure BD19 of Exhibit R2 at page 321

 158   Exhibit A4

 159   Ibid

 160   Annexure FC36 of Exhibit R1 at page 416

 161   PN596, PN 673

 162   Annexure BD14 at page 191

 163   PN506

 164   Annexure BD14 at page 191

 165   Ibid at page 202

 166   Ibid at page 208

 167   Ibid at page 215

 168   PN754, PN757

 169   PN760

 170   PN770

 171   Annexure BD73 of Exhibit R2 at page 655

 172   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26]

 173   Annexure FC8 of Exhibit R1 at page 115

 174   Ibid at page 121

 175   Ibid at page 186

 176   Annexure BD57 of Exhibit R2 at page 517

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