| [2017] FWC 2238 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Taylor
v
Qube Ports Pty Ltd T/A Qube Ports
(U2016/11110)
COMMISSIONER CRIBB |
MELBOURNE, 28 APRIL 2017 |
Application for relief from unfair dismissal.
[1] Mr John Taylor (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Qube Ports Pty Ltd t/a Qube Ports (Qube, the company, the Respondent) on 16 August 2016.
[2] The application was the subject of conciliation on 6 October 2016 but an agreement was not reached between the parties. The matter was heard on Monday 28 November 2016, Wednesday 1 February 2017, Thursday 2 February 2017 and Friday 3 February 2017. Mr Taylor was represented by Ms F Knowles of Counsel and the Respondent by Mr M Follett, of Counsel.
[3] Mr Taylor gave evidence and for the company Mr Travis Carlier, Operations Manager, Appleton Dock; Mr David Saul, General Manager Government Services; Ms Rita Antranik, Operations Superintendent, Appleton Dock; Mr David Ayres, Shift Manager, Appleton Dock; Mr Steven Knight, Shift Manager, Appleton Dock and Mr Richard Marron, Shift Manager, Appleton Dock.
Legislative requirements
[4] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[5] I will consider each of the criteria in turn.
Section 387(a) - valid reason for the dismissal?
[6] It was Qube’s submission that the company relied only on the incident on 1 July 2016 to provide a valid reason for the dismissal. The previous warnings were stated to be relevantly taken into account in consideration of section 387(h). 1 Therefore, in dealing with section 387(a), the Commission will consider what occurred on 1 July 2016 alone.
Witness evidence
Mr Taylor
[7] It was Mr Taylor’s evidence that:
Ms Antranik
[8] Ms Antranik gave evidence that:
Mr Knight
[9] Mr Knight gave evidence that:
Mr Carlier
[10] It was Mr Carlier’s evidence that:
Submissions
Applicant
[11] The Applicant stated that there were two issues in relation to this matter. The first concerned what happened on 1 July 2016 and the second related to Mr Taylor’s “previous misconduct”. 118 It was agreed that Mr Taylor’s past conduct was not relevant in relation to the valid reason issue. Rather, it was stated that it was relevant in regard to other matters.119
[12] With respect to the findings set out in Mr Taylor’s letter of dismissal, it was argued that, in relation to the first finding that Mr Knight had, at the toolbox, directed the employees to use a guide(s) when loading a caravan onto the vessel, it was recalled to be Mr Taylor’s evidence that he did not remember that requirement being toolboxed. Further, it was argued that Mr Knight’s evidence that he had said to wait for a guide before you take caravans up the ramp did not amount to a direction by Mr Knight. 120
[13] The second and third findings, that Mr Taylor had admitted during the meetings on 14 July 2016 and 29 July 2016 that he was aware of the direction by Mr Knight for the requirement to have a guide and also that he did not follow Mr Knight’s direction, were said to have also not been made out by the company. This was because, during Mr Carlier’s evidence, Mr Carlier had resiled from the first of these propositions. The Applicant’s evidence was recalled to be that he did not admit during these meetings that the Shift Manager had directed that there be a guide. Further, it was stated that there was nothing in Mr Ayres’ statement to say that Mr Taylor had made such an admission during the meeting on 29 July 2016. 121
[14] With respect to the third finding, it was argued that the evidence did not suggest that a direction was given and that Mr Taylor did not follow it. The third finding was said to be tied up with the fourth finding which was that Mr Taylor failed to follow the direction of the Shift Manager. 122
[15] In terms of whether this amounted to misconduct and therefore a valid reason for the dismissal, it was submitted that the fact that Mr Taylor had said that he could not recall the direction being given, had to be relevant because it was one thing to remember the direction and then consciously disobey it. Mr Taylor was said to not have resiled from the fact that he had an awareness in respect of K Line and that there was an expectation to have a guide and that he did not. However, the Applicant argued that it was a different matter altogether if it was being put as a matter of misconduct, that he got a specific direction, that he understood, from Mr Knight and that he disobeyed it. 123
[16] The Applicant contended that the Commission should take into account that he felt that he was under pressure as people had complained about him slowing the job down. It was said to have been Mr Knight’s and Ms Antranik’s evidence that Mr Watson had called up and complained about Mr Taylor slowing the job down. There was said to be evidence that the shift was on an early go and that Mr Taylor felt pressure from others who were honking behind him for him to hurry up. It was recalled that Mr Taylor’s evidence was that it was not deliberate and that he was under a lot of pressure that day. 124
[17] It was submitted that the Commission should also take into account the evidence that there was no one actually there to act as a guide. Mr Taylor’s evidence was recalled to be that there was no one else around at the time to act as a guide. It was stated that the video footage supported this contention. In addition, it was indicated that no one was specifically allocated that shift to be a guide and that there were people who were acting as the traffic controller. Mr Taylor’s evidence was recalled to be that it was unsafe for the traffic controller to leave their post and come down the ramp and be a guide. The evidence of Mr Carlier was said to have been that the usual practice was for people to wait at the bottom of the ramp and honk and then wait for one of the lashers to come out. It was argued that this evidence was not sustainable in light of Mr Knight’s evidence which was that this was not the usual practice. 125
[18] In addition, the Applicant submitted that:
[19] It was stated that there appeared to be a clear interchanging of words by the Respondent such as direction, procedure and policy by the Respondent. If the issue was failure to follow a direction, this was said to mean that there had been a deliberate failure to follow a direction. It was argued that Mr Taylor did not remember being given the specific direction by Mr Knight and it was said that there was certainly no deliberate or wilful failure to follow Mr Knight's direction. It was acknowledged that Mr Taylor did concede that he had breached the procedure. However, the Applicant argued that it was not deliberate and that he was under a lot of pressure that day. Mr Knight’s evidence that there were timelines and expectations from the client was referred to. 131
[20] In relation to the flag person issue, the Applicant argued that, if one looked at the video footage, the flag person was not doing all of the things that Mr Knight suggested might be possible. It was stated that, from the video footage, Mr Taylor could clearly see what was happening and that that was the environment in which Mr Taylor drove up the ramp. 132
Respondent
[21] In relation to the question of valid reason, Qube contended that:
[22] It was submitted that it is relatively well established that the Commission needs to find whether there was a valid reason by reference to the evidence and material provided during the hearing. The Respondent stated that, therefore whether or not the company made good one or more of the factual propositions set out in the termination letter, was neither here nor there. 139 It was pointed out that the first bullet point was that Mr Knight gave a direction. This was said to be hardly a valid reason to dismiss Mr Taylor because Mr Knight gave a direction. This was despite Mr Taylor accepting and conceding in two meetings that he was aware of the direction.140
[23] The Respondent contended that Mr Taylor was clear in his evidence that he was aware of the requirement to have a guard or guards. It was stated that Mr Taylor decided, consciously and wilfully, not to have guards for the reasons he gave. The company contended that these reasons did not affect the fact that Mr Taylor knew what he was supposed to do and that there was a requirement in place as to how he was to perform his job. It was stated that Mr Taylor did not do it. This was described as an undeniable breach of a lawful and reasonable direction given by an employer. The company argued that it was a clear long-standing direction which Mr Taylor had accepted that he had heard plenty of times over the years. Mr Taylor was said to have indicated that it had been toolboxed all the time and that he had not denied that he had breached the procedure. Mr Follett described this as “game, set and match” in terms of valid reason. 141
[24] In support of its contention that a conscious breach of the policy or procedure constitutes a valid reason, the Commission was taken through two decisions - Selak v Woolworths Ltd 142 and Woolworths Ltd (t/as Safeway) v Brown.143 Whilst these decisions related to policies, the Respondent contended that the way the policy rationale is justified is by reference to the capacity of a master to give lawful and reasonable directions to his servant. It was stated that, in this case, there was a lawful and reasonable direction to use one or two guides when taking these types of caravans up a ramp. The company argued that Mr Taylor knew that and was aware that he was not supposed to do it but did not use a guide.144
[25] Finally, Qube contended that the Applicant had raised a range of false issues in relation to the incident on 1 July 2016. These were said to include whether it was one or two guides and the flagman issue. In relation to the former, the Respondent argued that this was irrelevant as Mr Taylor knew he was supposed to have at least one guide and he did not have at least one. 145
[26] In terms of the flagman practice, the company stated that this constituted a side argument about whether the company’s practice was safe or unsafe. As Mr Taylor did not use a flagman as a guide, this issue was also described as irrelevant. 146
[27] Further, the Respondent argued that Mr Taylor had been asked as to whether he had raised the false issues to create a grey area or doubt about what was a clear decision by him not to comply with the procedure that he knew about. Mr Follett’s recollection of Mr Taylor’s answer was that he had said “Yes”. 147
Considerations and conclusions
[28] The company relied solely on the events of 1 July 2016 to provide a valid reason for the dismissal of Mr Taylor. This was on the basis that Mr Taylor had failed to follow a direction or company procedure which was to use a guide when towing caravans. This had been toolboxed that morning at the beginning of the shift and Mr Taylor was aware of the requirement to use a guide(s).
[29] On the other hand, the Applicant submitted that what happened on 1 July 2016 did not amount to a valid reason for Mr Taylor’s dismissal. This was because Mr Taylor could not remember the requirement being toolboxed. However, Mr Taylor had indicated that he was aware of the expectation that he use a guide when towing caravans but had not consciously disobeyed it. Mr Taylors’s evidence was that he was under pressure at the time with cars tooting and people yelling. Further, it was also argued that Mr Knight’s evidence on this point did not amount to him giving a direction to Mr Taylor to wait for a guide before taking caravans up the ramp.
[30] I have carefully considered all of the material before me.
[31] It was Mr Taylor’s evidence that:
[32] On the basis of Mr Taylor’s evidence, I find that, on 1 July 2016, Mr Taylor did not use a guide when he towed caravans up the ramp onto the ship on several occasions. It was also Mr Taylor’s evidence that he knew of the requirement to use guides but had made a judgement call not to use a guide. This was because he was under pressure that day from cars tooting and people yelling. Whatever the reason, the fact remains that Mr Taylor made a conscious decision not to follow the company’s requirement to use a guide(s) when towing caravans - of which he was aware.
[33] With respect to whether or not the requirement to use guides/wait for a guide before taking a caravan up the ramp, was toolboxed by Mr Knight at the beginning of the shift on 1 July 2016, I find it is most probable that Mr Knight did state that requirement at that time. It was Mr Taylor’s evidence that he could not remember whether or not Mr Knight had toolboxed this requirement. However, there was nothing in the evidence of Mr Knight to suggest other than that he had toolboxed the requirement for guides.
[34] Therefore, I find that Mr Taylor made a conscious decision not to follow a company requirement which had been stated at the beginning of the shift by the Shift Manager.
[35] The next question then is whether Mr Taylor’s conduct on 1 July 2016 constituted a valid reason for his dismissal. On balance, I find that there was not a valid reason for Mr Taylor’s dismissal. In and of itself, although serious and not in any way condoned, Mr Taylor’s decision to breach the company’s requirements in relation to use of a guide(s) when towing caravans, does not, in my view constitute a valid reason for his dismissal. It was a breach of a company procedure which Mr Taylor was familiar with but, as an isolated event, it does not, in my view, on balance, constitute a valid reason for Mr Taylor’s dismissal.
[36] In its submissions, the company made it clear that they were relying solely on the 1 July 2016 incident as the valid reason for Mr Taylor’s dismissal. Had the prior warnings been considered also in relation to valid reason, the Commission’s finding may have been different.
Section 387(b) - notified of the reason
[37] It was common ground that Mr Taylor was notified of the reason for his dismissal. 148
Section 387(c) - opportunity to respond
[38] There was no dispute between the parties that Mr Taylor was provided with an opportunity to respond. 149
Section 387(d) - unreasonable refusal to have a support person
[39] Mr Taylor had a support person throughout the process. 150
Section 387(e) - previous warnings for unsatisfactory performance
[40] Mr Taylor was given a number of warnings prior to his dismissal. These related to Mr Taylor’s conduct and failure to follow policies and procedures rather than unsatisfactory performance.
Section 387(f) and (g) - size of the employer/human resources expertise
[41] Qube is a large employer and has human resource management specialists. 151
Section 387(h) - any other matters
[42] As the company only relied on the incident that occurred on 1 July 2016 as constituting a valid reason for the dismissal, the other disciplinary issues concerning Mr Taylor are therefore considered under this criterion.
[43] It was Qube’s view that the following incidents were relevant and should be taken account of in determining whether the dismissal was harsh, unjust or unreasonable:
Witness evidence
(a) Events of 3 June 2014 - counselling letter dated 27 June 2014 and warning dated 19 June 2014
Mr Taylor
[44] Mr Taylor gave evidence that:
Mr Marron
[45] Mr Marron’s oral and written evidence was that:
Mr Carlier
[46] It was Mr Carlier’s evidence that:
Mr Saul
[47] It was Mr Saul’s evidence that:
(b) Incident on 10 December 2014/final warning dated 26 February 2015
Mr Taylor
[48] It was Mr Taylor’s evidence that:
Mr Syzmski had come over towards him and he had raised his arm in self defence. Mr Taylor had then said to Mr Syzmski to go up on the next deck and we’ll sort this out. This was because the fans on the deck were so loud that you cannot hear. 222
Mr Saul
[49] Mr Saul gave evidence that:
Ms Antranik
[50] It was Ms Antranik’s evidence that:
Mr Szymski
[51] Mr Szymski did not give evidence or provide a written statement. The Statement he gave to Mr Carlier on 18 December 2014 was provided by the company. 265
[52] In his Statement, Mr Szymski said that:
Mr Ayres
[53] Mr Ayres stated that Mr Carlier had approached him on 18 December 2014 and had asked if he knew of any of the issues as set out in his statement. He had said No. 270 To the best of his recollection, Mr Ayres said that no one had raised any issues with him on the day.271
Mr Carlier
[54] Mr Carlier gave the following evidence:
(c) Incident on 31 March 2016 - final warning dated 22 April 2016
Mr Taylor
[55] Mr Taylor gave evidence that:
Mr Ayers
[56] It was Mr Ayres’ evidence that:
[57] Mr Knight gave evidence that he was not aware of a practice whereby employees obtained the approval of a Team Leader, instead of a Shift Manager, to leave site early. 318
Mr Carlier
[58] It was Mr Carlier’s evidence that:
Submissions
Applicant
[59] The Applicant submitted that the past misconduct was relevant in relation to other matters. This was on the basis that the dismissal may be unreasonable because it was decided on inferences which could not have been reasonably drawn from the material before the employer. 327
[60] It was contended that the Respondent wanted to have it both ways in relation to the past warnings. The Applicant recalled that the Respondent had indicated that the issue was whether the events had actually occurred or not and then, the Respondent had said, that it was relevant that Mr Taylor had had two final warnings. Therefore, the extent to which the final warnings were legitimate and warranted was relevant. It was indicated that, as the Respondent relied heavily on the fact that Mr Taylor had been given these warnings, the process by which they came about was something that the Commission should take into account. 328
[61] In terms of the Respondent’s allegations about Mr Taylor’s credit, it was stated that it was only Mr Marron who gave evidence that was directly contrary to Mr Taylor’s account. It was recalled that Mr Taylor gave very frank evidence and that he made a number of concessions, some of which were probably not helpful to his case. It was stated that Mr Taylor gave honest answers and that he was a straight shooter. 329
[62] The Applicant submitted that it was the Respondent who has put a spin on things. With respect to Mr Marron’s evidence, it was argued that, even though he described himself as rough and ready and agreed that he does swear in the workplace, Mr Marron was not prepared to accept that he had used the word ‘fuck’ during his exchanges with Mr Taylor. Further, it was contended that there was the removal of a key issue in dispute (the request for an extension) from Mr Marron’s witness statement and that it was characterised as “for what happened yesterday” - which could have been anything. 330
[63] In addition, it was argued by the Applicant that the difference between Mr Taylor’s “That’s discrimination” and Mr Marron’s “I’ll have you up for discrimination” was simply Mr Marron’s perception that what Mr Taylor had said was a threat and this had spiralled into Mr Taylor getting warned for raising the issue as a result of Mr Taylor feeling that he had been discriminated against because he had refused to extend the previous day. Mr Marron recording the way he took it was said to not take away from what Mr Taylor said as people are allowed to say that they are going to bring a claim of discrimination. 331
[64] Further, in relation to the issue of credit, it was contended that Mr Carlier’s evidence in relation to the Mr Marron event beggared belief. It was stated that Mr Carlier’s evidence was that he had an open mind before he met with Mr Taylor. When confronted with his email which said that Mr Taylor will be running for cover when he issued him with a warning on Monday, Mr Carlier was described as not being able to concede that it was disingenuous to say that what Mr Taylor said during the meeting would be genuinely considered. 332
3 June 2014 incident
[65] It was recalled that Mr Taylor’s evidence was that he was not aware that he had to have the blue and yellow overalls on. It was stated that Mr Taylor had acknowledged that he was supposed to have overalls on as opposed to track suit pants. Mr Taylor was said to have acknowledged that he wasn’t in the right gear and he had to go and get the overalls he had in his car. The Applicant submitted that this issue was not serious or significant or something that was relevant for the Commission to take into account more than two years after it occurred. 333
[66] In terms of the allegation that Mr Taylor threatened to bring a discrimination claim against Mr Marron, it was recalled that Mr Taylor’s evidence was that he raised an issue in respect of his function as a Health and Safety Representative and that Mr Marron subsequently became angry and swore at him. This had made him feel that the way that Mr Marron was treating him was discrimination both for that and the fact he would not extend his shift the day before and that Mr Marron was bordering on harassing him. It was submitted that Mr Taylor should be believed on these matters and that he was entitled to complain that he felt that he was being discriminated against for raising health and safety issues and for not extending a shift the previous day. These were said to constitute valid grounds for a complaint. 334
[67] The Respondent was said to have taken these complaints and turned them into a disciplinary issue with the justification being that Mr Carlier and Mr Saul believed that the complaints were groundless. However, it was contended that that conclusion was reached without talking to Mr Taylor. It was said to have been acknowledged by Mr Saul that he had written the warning before Mr Taylor was spoken to about the matter. 335
[68] It was submitted that the Commission needed to make a factual finding as to what did occur. In addition, the Commission should take into account the procedural flaws in each of these matters where the Respondent is relying upon them as valid reasons for Mr Taylor’s dismissal. The Applicant contended that the Respondent has issued Mr Taylor with a series of warnings with procedural flaws which it says, when it is all taken into account, amounts to a valid reason. However, it was argued that, if you unpick each one, they don’t. 336
10 December 2014 incident
[69] The Applicant stated that the only sworn evidence that the Commission has was that of Mr Taylor, as the Respondent did not call Mr Syzmski. Further, it was contended that the evidence was that the purported statement of Mr Syzmski was not written by Mr Syzmski but by Mr Saul. This was said to be concerning especially as Mr Saul’s evidence was that he had never spoken to Mr Syzmski. In addition, it was stated that there were some significant differences between what was in Mr Carlier’s dot points and what was in Mr Syzmski’s statement. It was argued that a significant addition to Mr Syzmski’s statement was Mr Taylor saying that he would have hit Mr Syzmski. 337
[70] It was submitted that Mr Syzmski’s statement should be given very little weight because it was hearsay and has been changed a number of times including adding in very significant information or leaving out relevant bits e.g. that Mr Syzmski told Mr Taylor to fuck off. As well, there were process issues which included Mr Saul accepting Mr Syzmski’s version without speaking to him. Mr Taylor’s sworn evidence should be accepted by the Commission. 338
[71] The Applicant contended that Mr Syzmski did not report the incident and argued that the rumours going around that they were both going to get the sack was because they both did things that were not great during their exchange. 339
[72] In relation to Mr Taylor’s statement at the time, it was recalled that Mr Taylor’s evidence was that a union official had prepared it and that it was inconsistent with his evidence. It was stated that a similar situation had occurred in relation to Mr Syzmski’s statement in that management had prepared something on the basis of what Mr Syzmski had said to them. It was indicated that there may well have been some sort of deal done - probably because what neither of them did was great. It was said that all of that was plausible and that it did not take away from Mr Taylor giving sworn evidence about what happened now that this matter was being revisited. 340
[73] The Applicant made the observation that this issue had moved around a bit in relation to whether Mr Taylor threatened to punch Mr Syzmski or whether, on Mr Syzmski’s account, Mr Taylor had pretended to throw a punch. The latter was said to be a different thing altogether from actually threatening to punch someone. 341
31 March 2016 incident
[74] Mr Taylor’s evidence was recalled to have been that he had advised Mr Caracella that he needed to go and that Mr Caracella (the Charge Foreman) had given him permission and that this had happened before. It was stated that the evidence also indicated that Mr Caracella had given Mr Taylor permission to go. Mr Ayres was recalled to have conceded that, if he had delegated responsible permission to Mr Caracella to let people go, then Mr Taylor would have been authorised. Mr Taylor was not to know whether Mr Ayres had given Mr Caracella authority to give permission to employees to leave. However, Mr Taylor had said to his Charge Foreman that he needed to go and the Charge Foreman had said that he could go. 342
[75] As there was no actual need for either Mr Taylor or Mr Mathieson to be there, it could not be said that it was an operational issue. Rather, it was said to come down to an issue of being given permission and, the Applicant contended, that he was given permission by his Charge Foreman. 343
[76] With respect to Mr Carlier’s evidence that someone had previously been warned for giving permission for someone to leave early, it was noted that there had been no details provided in relation to this. The Applicant argued that, it was a very long bow to try and draw to say that it was unsafe for Mr Taylor not to have followed the process as it was Mr Ayres’ evidence that Mr Taylor was not needed anymore. The warning was characterised as the Respondent making a mountain out of a mole hill. 344
[77] The Applicant submitted that Mr Taylor’s evidence was consistent with the video footage which showed that Mr Taylor turned the other way back to the turnstile after his exchange with Mr Caracella. It was stated that Mr Taylor was not trying to say that he had gone back onto the ship but that he had turned the other way and had gone back to the turnstile. 345
[78] Additional other matters which the Commission should take into account were said to be:
[79] It was argued that Mr Taylor had put sufficient detail in his affidavit in relation to his personal circumstances as it contained details about his mortgage and the impact on his family and children. 352
[80] The Applicant submitted that, taking into account all of those factors, including the dubious bases for the prior warnings and the dubious processes, the decision to dismiss Mr Taylor was disproportionate to what was put against him and was harsh, unjust and unreasonable. 353
Respondent
[81] In relation to the Applicant's submissions that the termination was unfair, in part due to the validity of the prior warnings, it was contended that what was relevant was whether or not they had occurred. The process by which they were investigated and whether it was a fair process was not relevant. It was argued that it did not matter how Mr Taylor got to be on two final warnings. Rather, it mattered that Mr Taylor was on them and the Commission was only required to decide whether the company’s findings were justified. 354
[82] The Respondent indicated that the Commission would likely need to make some findings about the past warnings but maybe only some of them in order to be satisfied that the dismissal was harsh, unjust or unreasonable. It was suggested that the Commission may be satisfied of this on the basis of two of the previous four incidents. 355
[83] It was stated that the previous issues fell into two categories - failure to comply with procedures and abuse or threatening behaviour towards superiors. Qube contended that this manifested a behavioural trait in Mr Taylor. This was said to be that Mr Taylor had a view about how things should be done and did them that way and abused and threatened those who attempted to tell him otherwise. 356
[84] Qube argued that, as with the 1 July 2016 incident, the Applicant’s account of the events had enough changed facts to put a more benign or innocent spin on what had actually occurred. In relation to this, the Respondent stated that they were making an attack on the Applicant's credit. This was because the Applicant’s credit was said to be highly relevant to the question of remedy. Further, it was stated that the Commission could not make any findings unless the Commission assessed the credit of the Applicant vis-a-vis Qube’s witnesses. 357
June 2014 incident
[85] It was submitted that the evidence in Mr Taylor’s witness statement was either completely new or quite different to the accounts he gave at the time. With respect to brand new evidence, it was stated that there were two new aspects in terms of the incidents with Mr Marron. 358 In relation to the PPE incident, the Respondent stated that Mr Taylor gave a brand new account which he was said to have made up on the spot - that he did not know that he had the wrong overalls and that he did not know of that requirement. It was recalled that Mr Taylor had accepted that the explanation he gave at the time of the incident was inconsistent with his evidence at the hearing. At the time, the Respondent contended that Mr Taylor had said that he knew that he was supposed to have the other overalls but that he had forgotten them and had done the wrong thing. This was described as very different to Mr Taylor’s evidence that he didn’t know that he was supposed to have those overalls and so therefore did not do the wrong thing.359
[86] In terms of the threats to Mr Marron, Qube submitted that this was a straight out issue of credit. It was stated that there was Mr Marron’s contemporaneous and consistent account compared with Mr Taylor’s account which was all over the place and disingenuous. It was stated that the allegation of threatened discrimination was entirely improper. In addition, Mr Carlier’s evidence was recalled to be that Mr Taylor had said that, in the heat of the moment, he might have threatened Mr Marron with discrimination. The Respondent stated that either Mr Marron’s or Mr Taylor’s statement was to be accepted but that, to accept Mr Taylor’s version, would result in accepting that Mr Carlier was either wrong or lying. 360
26 February 2015 - Mr Syzmski
[87] With respect to the incident with Mr Syzmski, the Respondent argued that Mr Taylor’s account was a textbook example of Mr Taylor having fiddled with the facts a little bit. It was observed that Mr Taylor had not identified what was discussed with Mr Syzmski and had not said anything about his arms. Mr Taylor’s evidence was said to have been that it was noisy so people were yelling. This was said to deal with the contention that there was a confrontation between himself and Mr Syzmski. 361
[88] Qube contended that there was corroboration of Mr Syzmski’s account in the form of the anonymous phone call which reported an altercation between Mr Syzmski and Mr Taylor where Mr Taylor threatened to punch Mr Syzmski. In addition, it was in Mr Saul’s statement, that Mr Saul had said that he had spoken to witnesses to the exchange who had supported Mr Syzmski’s version of events but did not want to formalise their verbal statements. As it was this incident which had prompted the union to contact Mr Saul, Qube argued that this would have been unusual if the event had been one where Mr Syzmski was the aggressor. 362
[89] The Respondent also highlighted inconsistencies within Mr Taylor’s evidence about who had approached who which had resulted in the debunking of the proposition that Mr Syzmski had approached Mr Taylor and was acting aggressively. Mr Taylor’s account was described as a fabrication. 363 Qube also drew attention to what was described as inconsistencies in Mr Taylor’s evidence about where his fist was in relation to Mr Syzmski’s face.364
[90] Further, the Respondent submitted that Mr Taylor had to reinvent the wheel in relation to the incident with Mr Syzmski. This was on the basis that, when Mr Taylor wrote his statement at the time, Mr Taylor had Mr Syzmski’s version of events. It was contended that Mr Taylor gave an account then that was more aligned to Mr Syzmski’s version and more benign than the one in his witness statement. The reason that Mr Taylor’s statement at the time and the account in his witness statement was so different was that, in preparing the latter, all Mr Taylor had before him from the company was the warning which did not tell him much. 365
[91] It was asserted by Qube that Mr Taylor therefore had to start from scratch in terms of his account of this incident. What Mr Taylor came up with was a story which was described as consistent with what Mr Taylor recalled the charges against him were but still benign. Mr Taylor’s written witness statement was said to look nothing like his statement at the time. The differences were said to relate to who approached who and there was no allegation originally that Mr Syzmski had approached him aggressively nor that he did anything in self defence. Also, in his first statement, Mr Taylor made no mention of any discussion of Mr Taylor’s son. 366
31 March 2016 - leaving early
[92] In terms of the Applicant’s contention that it was common practice for the Charge Foreman to approve someone leaving early, the company pointed out that this was inconsistent with the enterprise agreement; that people have previously been disciplined for it; that it was fundamentally unsafe and also contrary to the Government’s regulations. In addition, it was stated that Mr Caracella had not accepted that it was common practice and had said that he knew that it was a requirement to ask the Shift Manager. 367
[93] The Respondent stated that the CCTV footage put this issue to bed on the basis that the footage showed that Mr Taylor could not have gotten approval from Mr Caracella because their exchange was only four seconds long. It was argued that Mr Taylor had simply told Mr Caracella that he was leaving. As well, the company stated that the CCTV footage showed that Mr Taylor walked towards the access gate after having spoken to Mr Caracella, rather than having walked towards the ship which was Mr Taylor’s evidence. 368
[94] In addition, the company submitted that there were also other aspects of Mr Taylor’s evidence which were contrary to that of the Respondent’s witnesses. It was stated that the Commission should prefer the Respondent’s witnesses’ account rather than that of Mr Taylor. 369
[95] The spin factor, from the Applicant, was further identified by the company as:
[96] Qube noted that, throughout the prior four incidents, Mr Taylor had his union representative with him the whole time. It was stated that, except for the last warning when Mr Taylor lodged a grievance, Mr Taylor had copped all of the warnings with his union representative sitting next to him. Further, the Respondent said that when Mr Taylor had given a brand new account about one of the incidents, Mr Taylor’s explanation had been that the union had stepped in and essentially forced him to cop the warning. The Respondent indicated that this was not the MUA that it knew. In addition, it was stated that this had never been raised previously. 377
[97] The company submitted that Mr Taylor was dismissed for knowingly and wilfully breaching a procedure that he was fully aware of, in the circumstances of having legitimately already received one counselling letter, one written warning and final written warnings. It was argued that such a person deserves to be dismissed and that it was not unreasonable or harsh to have done so. 378
[98] With respect to the Applicant’s contentions in relation to his personal circumstances, it was submitted by the Respondent that Mr Taylor had found a job even though it may not be for the same amount of hours nor with the same security. Further, it was contended that the Applicant had not identified particular issues. Rather, they were described as hypotheticals. As there was no foundation in the evidence, it was stated that the Commission was not going to be asked to assume that this was going to be crushing or destructive of the Applicant’s personal life. 379
Considerations and conclusions - s.387(h)
[99] As can be seen from the previous paragraphs in the decision, there was a large volume of evidence in relation to the previous warnings that had been given to Mr Taylor. The Applicant contended that these were not relevant as they were dubious factually with dubious processes. The Respondent argued that Mr Taylor’s previous warnings could not be ignored and should be taken into account.
[100] I will deal with each of the disciplinary events in turn.
Incident on 3 June 2014 with Mr Marron
[101] It was common ground that Mr Taylor did not have the correct PPE on at the beginning of his shift on 3 June 2014. It also seems to not be disputed that Mr Marron told Mr Taylor to get the correct PPE (overalls) on and then said words to the effect that Mr Taylor should know better as a Health and Safety Representative. Mr Taylor had responded by pointing at another employee who was not wearing the correct PPE. Mr Taylor went to his car to get his overalls and rang Mr Marron from his car and told him that he only had his yellow overalls. Mr Marron told him to go home and get his (blue and yellow) overalls.
[102] The issues in dispute are, firstly, whether or not Mr Taylor threatened to have Mr Marron up for discrimination and secondly, whether Mr Marron had sworn at Mr Taylor during their initial discussion and then during the phone call.
[103] With respect to the second issue, it was Mr Marron’s evidence that he was a bit irritated with Mr Taylor during their exchange on 3 June 2014. Mr Marron’s evidence is accepted where he said that he did not swear around Mr Taylor because his perception was that Mr Taylor would use it against him. This was despite Mr Marron acknowledging that he was a bit rough and ready and that he did swear at work. Therefore, I find that Mr Marron did not swear at Mr Taylor during their initial discussion or during the phone call.
[104] In relation to the first issue, taking into account both Mr Taylor’s and Mr Marron’s version of events, I find that it is most probable that Mr Taylor did say to Mr Marron that he would have him up for discrimination over Mr Taylor not wearing the correct PPE. During Mr Taylor’s oral evidence, Mr Taylor stated that he was not aware as to which overalls he was supposed to have on. It is understood that the Respondent’s view is that this was something that Mr Taylor had not said previously and so was a brand new version of events. It does not appear in Mr Taylor’s written witness statement which was filed in these proceedings. Mr Marron’s evidence during the hearing was consistent with the contemporaneous email which he sent to Mr Carlier on 3 June 2014 380 and the witness statement that was filed for this hearing.
[105] Therefore, I find that Mr Taylor did say to Mr Marron (the Shift Supervisor) that he would have Mr Marron up for discrimination during their conversation about Mr Taylor needing to wear the correct PPE.
10 December 2014 – incident with Mr Syzmski
[106] There were two employees involved in this incident - Mr Taylor and Mr Syzmski. The Commission has before it sworn oral and written evidence from Mr Taylor. Mr Syzmski was not called as a witness by the Respondent nor did Mr Syzmski provide a sworn statement.
[107] Mr Taylor’s evidence during the hearing differed markedly from the statement he provided the company in response to the Show Cause letter of 11 February 2015. The explanation that was given by Mr Taylor for the disparity was that he and Mr Syzmski had put their heads together and come up with their stories. It was also Mr Taylor’s evidence that a union official had written his response to the company and he had simply signed it.
[108] It may well be, as Ms Knowles has suggested, that there was a deal done. However, on the basis of Mr Taylor’s evidence, I find that:
[109] It is noted that Mr Syzmski is a Charge Foreman. It is also noted that Mr Syzmski’s conduct may not have been above reproach during this incident.
Incident on 31 March 2016 - leaving early
[110] It was Mr Taylor’s evidence that he had left early on 31 March 2016 having got permission from Mr Caracella, the Charge Foreman. Mr Taylor contended that it had been common practice for years for approval to leave early to be given by the Charge Foreman. It appears that there was a brief discussion between Mr Caracella and Mr Taylor, during which Mr Taylor told Mr Caracella that he had to leave and Mr Caracella had said words to the effect that, if Mr Taylor had to go, then go.
[111] I have not been persuaded that the Charge Foreman (unless specifically authorised by the Shift Manager) has the authority to give permission to employees to leave early. Neither Mr Caracella nor the witnesses for the Respondent who gave evidence agreed that Charge Foremen had this authority. Their evidence was that it was the Shift Manager who was authorised to give permission for employees to leave early. Relevantly, the enterprise agreement provides, at clause 8.3 of Part A:
“Each employee is expected and required to attend work in accordance with their notified commencement time and remain at work until the identified conclusion of the notified shift, or as advised by the shift manager/supervisor. Absence during the course of the shift can only be approved by the shift manager, or in the shift manager's absence, the person nominated by the shift manager/supervisor.”
[112] There is no evidence before the Commission that, on 31 March 2016 at the relevant time, Mr Ayers had delegated this authority to Mr Caracella.
[113] Therefore, I find that, Mr Taylor left work early on 31 March 2016 without obtaining the requisite permission.
[114] In summary, in relation to Mr Taylor’s prior warnings, it has been found that:
[115] Account will be taken of these findings.
[116] On behalf of the Applicant, it was submitted that the dubious processes which had accompanied the warnings was a relevant matter under s.387(h) of the Act. The Respondent disagreed and argued that the Commission should only make findings about whether the incidents had occurred. The Commission is content to deal simply with the factual question of whether or not the incidents occurred as alleged by the Respondent.
[117] In addition, the Applicant contended that relevant other matters included Mr Taylor’s age; his length of service and the financial and emotional circumstances that have been the result of his dismissal. Mr Taylor’s age and length of service will be taken account of together with the financial impact of the dismissal.
Conclusions - was the dismissal harsh, unjust or unreasonable
[118] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I have determined, on balance, that Mr Taylor’s dismissal was harsh, unjust or unreasonable.
[119] On the one hand, it has been found that there was not a valid reason for Mr Taylor’s dismissal. As well, Mr Taylor’s age and length of service have made it more difficult for Mr Taylor to find alternative employment. In addition, the financial impact of the dismissal has been severe given that Mr Taylor had taken out a reasonable sized mortgage not long before he was dismissed.
[120] On the other hand, prior to the incident on 1 July 2016, Mr Taylor had been given three warnings (two of them final warnings). These were for threatening behaviour towards a superior and for not following company procedure.
[121] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Taylor was unfairly dismissed.
Remedy
[122] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[123] With respect to the requirements of section 390, I am satisfied that Mr Taylor was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Taylor has made an application under section 394 of the Act (section 390(2)).
[124] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
[125] In this matter, reinstatement was sought by Mr Taylor together with an order to maintain the continuity of his employment and for payment of remuneration lost. It was submitted that there was no basis for the Commission to make a finding that there has been a breakdown of trust and confidence. There was nothing that had been alleged against Mr Taylor subsequently that would make a reinstatement inappropriate. The Applicant contended that there was no evidence about any inability on Mr Taylor’s part to work with his colleagues. 381
[126] Further, Mr Taylor’s statement was highlighted in relation to his commitment to study and learn each process in every SWMS as he did not ever want to be in this position again. 382
[127] In relation to the respondent’s contention that it would be a safety risk if Mr Taylor was reinstated, the Applicant argued that this was a real stretch. It was stated that there had been no prior safety issues with Mr Taylor. With respect to the comments made by Mr Taylor to Mr Knight after Mr Taylor’s dismissal, it was accepted that it was an inappropriate thing for Mr Taylor to have said. However, it was argued that it needed to be seen in the light that Mr Taylor was very upset at the time. 383
[128] For its part, the Respondent submitted that reinstatement was fundamentally inappropriate. 384 This was on the basis that:
[129] I have carefully considered the submissions and evidence before me. I have not been persuaded that reinstatement is appropriate. Given the evident culture on the waterfront, it is my view, that it would be unworkable for Mr Taylor to be reinstated. Through the past incidents that gave rise to the previous warnings, there would seem to be too much “history” associated with Mr Taylor to allow any of the parties to simply forget the past and to move forward. Therefore, I am satisfied that reinstatement of Mr Taylor is inappropriate.
Compensation
[130] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. It was contended by the Respondent that an order for compensation was inappropriate. This was on the basis that it would be rewarding a person who has lied to his employer and to the Commission. It was also argued that something that may have been harsh at the time, the circumstances can change and what might have been the case then may not be the case now. The Applicant disagreed with this proposition.
[131] Taking into account all of the circumstances of this matter, including the finding that there was not a valid reason for Mr Taylor’s dismissal, an order for payment of compensation is considered appropriate.
[132] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[133] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 392 (Haigh). In Haigh, the Full Bench also referred393 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket394 (Sprigg). I respectfully adopt the approach taken in Haigh.
Section 392(2)(a) - effect on the viability of the employer’s enterprise
[134] Neither party made submissions in relation to this subsection of the Act. There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.
Section 392(2)(b) - Applicant’s length of service
[135] Mr Taylor’s length of service with the Respondent was 17 years.
Section 392(2)(c) - remuneration would have received
[136] It was submitted on behalf of the Applicant that, as Mr Taylor wanted to work until the age of 65, Mr Taylor would have remained in employment for some time to come. 395
[137] The Respondent contended that Mr Taylor’s continued employment would not have been longer than 3 months. 396
[138] In all of the circumstances of this case, I have formed the view that, had Mr Taylor not been dismissed, it is likely that Mr Taylor’s employment would have continued for four months. This is on the basis that, despite Mr Taylor’s long service, in the two years prior to his dismissal, there had been multiple disciplinary events relating to either Mr Taylor’s conduct towards supervisors or his non-compliance with company requirements or procedures.
[139] For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Taylor would have received was four months’ pay.
[140] At the time of his dismissal, Mr Taylor’s annual base pay was $96,054.87. 397 Therefore, the amount Mr Taylor would have received for the four month period of anticipated employment is $32,018.29 (gross).
Section 392(2)(d) - efforts to mitigate loss
[141] Mr Taylor gave evidence about his efforts to obtain alternative employment and the fact that he had found casual work. 398 It was not disputed by the Respondent that Mr Taylor had taken reasonable steps to mitigate his loss.
[142] On the basis of the material before me, I am satisfied that Mr Taylor made reasonable attempts to find alternative employment and did find alternative employment.
Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned
[143] It appears that Mr Taylor was paid 5 weeks’ pay in lieu of notice ($9236.04) at the time he was dismissed. 399 This will be counted in determining the remuneration earned.
[144] Mr Taylor’s evidence, together with his payslip, was that he commenced being paid in his new job in the fortnight starting 16 January 2017. Mr Taylor was dismissed on 16 August 2016 so therefore, the period of anticipated employment ended on 16 December 2016. As Mr Taylor did not receive any remuneration until the fortnight commencing 16 January 2017, account is not required to be taken of this remuneration as it commenced after the period of anticipated employment ended.
[145] Therefore, $9236.04 will be deducted from the provisional amount. This results in a provisional compensation amount of $22,782.25.
Section 392(2)(g) - other matters
[146] The Respondent submitted that Mr Taylor’s dishonesty during the investigation and in the Commission should be taken into account by the Commission. 400
Section 392(3) - misconduct
[147] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s reason to dismiss the person, the Commission must reduce the amount it would otherwise order.
[148] It was submitted by the Respondent that Mr Taylor’s misconduct contributed to the employer’s decision to dismiss him. This was said to bring in all of the previous incidents of misconduct and not just the last one. The Respondent stated that this should result in an almost total reduction in any compensation payable to Mr Taylor. 401
[149] On the other hand, the Applicant argued that the Respondent could not rely on any previous misconduct as it was only the incident on 1 July 2016 which was relied upon by the company for a valid reason. It was stated that the misconduct, on 1 July 2016, was not sufficient to warrant a discount for it. 402
[150] Mr Taylor was dismissed for failing to follow a company requirement or procedure when he was towing caravans up the ramp on 1 July 2016. The Respondent relied on this incident only to form the basis for a valid reason for Mr Taylor’s dismissal. Therefore, it is not consistent for the Commission to take into account Mr Taylor’s prior misconduct. Accordingly, as Mr Taylor’s conduct in relation to the 1 July 2016 incident was the reason for his dismissal, it is proposed to reduce the amount the Commission would otherwise order by 20%.
[151] This results in a provisional compensation amount of $18,225.80.
Contingencies
[152] As the period of anticipated employment has passed, it is not proposed to make a deduction for contingencies.
Section 392(4) - shock or distress
[153] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Taylor.
[154] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.
Section 392(5) - compensation cap
[155] As the provisional amount of compensation ($18,225.80) is less than the amount provided for in section 392(5), I make no further deduction for that reason.
Conclusion
[156] Therefore, it is considered appropriate to make an order that Qube Ports Pty Ltd T/A Qube Ports pay $18,225.80 (gross), less taxation as required by law, in compensation to Mr Taylor in lieu of reinstatement, within 21 days of the date of this decision.
[157] An order 403 to this effect will be issued separately.
Appearances:
F Knowles of Counsel for the Applicant
M Follett of Counsel for the Respondent
Hearing details:
2016.
Melbourne:
November 28.
2017.
Melbourne:
February 1, 2, 3.
1 Transcript PN 2472 - 2475
2 Ibid PN 377 - 385
3 Ibid PN 393
4 Ibid PN 394 - 404
5 Ibid PN 409 - 413
6 Ibid PN 414 - 417
7 Ibid PN 418 - 425
8 Ibid PN 426
9 Ibid PN 427 - 429
10 Ibid PN 432 - 433 and 904 - 906
11 Ibid PN 434 - 438, 559 and 562 and Exhibit A2 at paragraph 54
12 Ibid PN 440 - 443
13 Ibid PN 445 - 447
14 Ibid PN 502 - 507 and Exhibit A2 at paragraph 39
15 Ibid PN 449 - 450
16 Ibid PN 451 - 452
17 Ibid PN 454 - 458
18 Ibid PN 460 and 482
19 Ibid PN 461 - 463
20 Ibid PN 477 - 479
21 Ibid PN 471 and 557
22 Ibid PN 558
23 Ibid PN 472 - 476
24 Ibid PN 481
25 Ibid PN 480
26 Ibid PN 483 and 493
27 Ibid PN 567
28 Ibid PN 484 - 486 and 907 - 908
29 Ibid PN 487 - 488
30 Ibid PN 489 - 490
31 Ibid PN 492
32 Ibid PN 491
33 Ibid PN 495
34 Ibid PN 498
35 Ibid PN 508 - 510
36 Ibid PN 512
37 Ibid PN 909 - 915 and Exhibit A2 at paragraph 39
38 Ibid PN 514 - 515
39 Ibid PN 916
40 Ibid PN 516
41 Ibid PN 520 - 521, 532 and 556
42 Ibid PN 523 - 524, 537 and 545 - 547 and Exhibit A2 at paragraphs 44 and 48
43 Ibid PN 533 - 536
44 Ibid PN 532 and 540
45 Ibid PN 548
46 Ibid PN 549 - 551
47 Ibid PN 564 - 565
48 Ibid PN 568 - 572 and Exhibit A3 paragraph 9
49 Ibid PN 573 - 580, 611 - 612 and 889
50 Ibid PN 581 - 582
51 Ibid PN 583 - 584 and 569
52 Ibid PN 586 - 591
53 Ibid PN 613 - 619
54 Ibid PN 888 - 892
55 Ibid PN 893
56 Ibid PN 894
57 Ibid PN 897
58 Ibid PN 1972 - 1975, Exhibit R5 at paragraphs 21 - 23 and Attachment RA3 and RA5 and Exhibit A8
59 Ibid PN 1979 - 1981
60 Ibid PN 1986
61 Ibid PN 1988
62 Ibid PN 1989 - 1990
63 Exhibit R5 at Attachment RA5
64 Ibid at paragraphs 27 - 29 and Attachment RA5 and Exhibit A8
65 Exhibit R7 at paragraph 9
66 Ibid at paragraphs 14 and 18
67 Transcript PN 2154 - 2160
68 Ibid PN 2171 - 2173
69 Ibid PN 2175
70 Ibid PN 2176 - 2181
71 Ibid PN 2182 - 2185
72 Ibid PN 2186 - 2188
73 Ibid PN 2192 and Exhibit R7 at paragraph 15
74 Ibid PN 2192 - 2195 and ibid at paragraph 15
75 Ibid PN 2196 - 2197
76 Ibid PN 2203
77 Ibid PN 2204 - 2205 and Exhibit R7 at paragraph 18
78 Ibid PN 2206 - 2208
79 Ibid PN 2210 - 2211 and 2223
80 Ibid PN 2212 - 2215
81 Ibid PN 2216 - 2218
82 Ibid PN 2219 - 2233
83 Ibid PN 2234 - 2235
84 Ibid PN 2237 - 2243
85 Ibid PN 2256 - 2258
86 Ibid PN 2260 - 2265
87 Ibid PN 2251 - 2255
88 Ibid PN 2266 - 2271 and Exhibit R7 at paragraphs 30 - 33
89 Ibid PN 1008 - 1010
90 Ibid PN 1011 - 1012
91 Ibid PN 1015 - 1017
92 Ibid PN 1018 - 1019
93 Ibid PN 1020
94 Ibid PN 1034 - 1036
95 Ibid PN 1388 - 1390
96 Ibid PN 1391 - 1394 and 1386 - 1394 and Exhibit R2 at paragraphs 70 - 71
97 Ibid PN 1372 - 1374 and 1724 and ibid at Attachment TC10
98 Ibid PN 1413 - 1416 and 1421 - 1423, Exhibit R2 at paragraphs 75 and 77 and Exhibit A8
99 Ibid PN 1425 - 1429 and Exhibit R2 at paragraph 77
100 Ibid PN 1434
101 Ibid PN1430 - 1432 and Exhibit R2 at Attachment TC24
102 Ibid PN 1435
103 Ibid PN 1555
104 Ibid PN 1545 -1548
105 Ibid PN 1555 - 1577 and Exhibit R2 at paragraphs 71 and 73
106 Ibid PN 1571 - 1572 and ibid at paragraph 73
107 Ibid PN 1442 - 1455 and ibid at Attachment TC25
108 Ibid PN 1484 - 1493 and 1747
109 Ibid PN1749 - 1752
110 Ibid PN 1494 - 1507
111 Ibid PN 1508 - 1509
112 Ibid PN 1510 - 1516
113 Ibid PN 1525 - 1532
114 Ibid PN 1578 - 1584, 1600 - 1603 and 1730 - 1741
115 Ibid PN 1598 - 1603
116 Ibid PN 1618 - 1621
117 Ibid PN 1622
118 Ibid PN 2401
119 Ibid PN 2653 - 2654
120 Ibid PN 2405 - 2406
121 Ibid PN 2407 and 2408
122 Ibid PN 2409
123 Ibid PN 2410 - 2411
124 Ibid PN 2412 - 2413
125 Ibid PN 2415 - 2416
126 Ibid PN 2417
127 Ibid PN 2418 - 2420
128 Ibid PN 2420 and 2662
129 Ibid PN 2421
130 Ibid PN 2422
131 Ibid PN 2660
132 Ibid PN 2661
133 Ibid PN 2471
134 Ibid PN 2473
135 Ibid PN 2475
136 Ibid PN 2476 - 2478
138 (1998) 84 IR 1 and Transcript PN 2481 - 2505
139 Transcript PN 2506
140 Ibid
141 Ibid PN 2507 - 2509
143 (2005) 145 IR 285
144 Transcript PN 2520
145 Ibid PN 2521
146 Ibid PN 2521 - 2522
147 Ibid PN 2523
148 Exhibit A1 paragraph 21 and Exhibit R1 at paragraph 27
149 Ibid at paragraph 22 and ibid at paragraph 28
150 Exhibit R1 at paragraph 29
151 Ibid at paragraphs 31 - 33
152 Ibid at paragraph 9
153 Ibid
154 Ibid
155 Ibid
156 Exhibit A2 at paragraph 7
157 Ibid
158 Ibid at paragraph 8
159 Ibid at paragraph 10
160 Ibid at paragraphs 10 - 13 and Transcript PN 622 - 625
161 Transcript PN 624
162 Ibid PN 624 - 633 and 646
163 Ibid PN 650 - 651
164 Ibid PN 655 - 656
165 Ibid PN 693 - 694
166 Ibid PN 697 - 703
167 Ibid PN 704 - 705
168 Ibid PN 729 - 732
169 Ibid PN 734 - 737
170 Ibid PN 706 - 709
171 Ibid PN 710
172 Ibid PN 711
173 Ibid PN 712 - 718 and Exhibit A2 at paragraph 12
174 Ibid PN 917
175 Ibid PN 722 - 727
176 Exhibit R10 at paragraphs 16 - 19
177 Ibid at paragraph 20
178 Ibid at paragraph 24 and Transcript PN 2298
179 Transcript PN 2299
180 Ibid PN 2300 - 2303 and Exhibit R10 at paragraph 25
181 Exhibit R10 at paragraph 25
182 Ibid
183 Ibid and Transcript PN 2306 - 2311
184 Ibid at paragraph 26
185 Ibid at paragraph 28
186 Ibid at Attachment RM1 and Transcript PN 2304 - 2305
187 Ibid at Attachment RM1 and ibid PN 2306
188 Transcript PN 2307 - 2311
189 Ibid PN 2312 - 2315 and Exhibit R10 at paragraph 27
190 Exhibit R2 at paragraph 26
191 Ibid
192 Ibid at paragraph 32 and Attachment TC4 and Transcript PN 1080 - 1084 and 1057
193 Transcript PN 1051
194 Ibid PN 1058 - 1062 and Exhibit R2 at paragraph 28
195 Ibid PN 1063 - 1067 and ibid at paragraph 28
196 Ibid PN 1068 - 1070 and 1079 and ibid at paragraph 29
197 Ibid PN 1079
198 Ibid PN 1089 and Exhibit R4 at DS1
199 Ibid PN 1091 - 1093
200 Ibid PN 1094 - 1095
201 Ibid PN 1105 - 1106
202 Ibid PN 1107 - 1108
203 Ibid PN 1109 and 1680 - 1681
204 Exhibit R2 at paragraph 30
205 Transcript PN 1116 - 1121
206 Ibid PN 1122
207 Ibid PN 1127 - 1131 and 1682 - 1684
208 Ibid PN 1133
209 Ibid PN 1137 - 1140 and 1144
210 Ibid PN 1142 - 1143
211 Ibid PN 1148
212 Ibid PN 1810 - 1816
213 Ibid PN 1819 and 1822 and Exhibit R4 at Attachment DS1 (email)
214 Ibid PN 1820 - 1821 and 1842
215 Ibid PN 1823 - 1824
216 Ibid PN 1783 - 1816 and 1838 - 1839
217 Ibid PN 1845
218 Ibid PN 1847
219 Ibid PN 1849
220 Ibid PN 1860 - 1861
221 Ibid PN 743 - 744
222 Ibid PN 745 - 747 and Exhibit A2 at paragraph 19
223 Ibid PN 748 - 749
224 Ibid PN 751 - 754
225 Ibid PN 757 and Exhibit A2 at paragraph 16
226 Ibid PN 758
227 Ibid PN 759 - 760
228 Ibid PN 761 - 764
229 Ibid PN 765 - 767
230 Ibid PN 768 - 779
231 Ibid PN 782
232 Ibid PN 784 - 785 and Exhibit A2 at paragraph 20
233 Ibid PN 790
234 Ibid PN 799 - 803 and Exhibit A2 at paragraph 19
235 Ibid PN 809
236 Ibid PN 810 - 814
237 Ibid PN 822
238 Ibid PN 815 - 816 and Exhibit A2 at paragraph 18
239 Ibid PN 823 - 824 and ibid
240 Ibid PN 817 - 819 and ibid
241 Ibid PN 822
242 Ibid PN 827 - 828
243 Ibid PN 829 - 831
244 Ibid PN 1780
245 Ibid PN 1864 and Exhibit A5
246 Ibid PN 1867 - 1872
247 Ibid PN 1875 and Exhibit A5
248 Ibid PN 1888 and Exhibit R4 at Attachment DS4
249 Ibid PN 1894 - 1895
250 Ibid PN 1904 - 1908 and Exhibit R4 at paragraph 23 and Attachment DS5
251 Ibid PN 1909 - 1910 and ibid at paragraph 25
252 Ibid PN 1911 and ibid at paragraph 33
253 Ibid PN 1913
254 Ibid PN 1918 - 1920 and 1923
255 Ibid PN 1921 - 1922
256 Ibid PN 1937 - 1938
257 Ibid PN 1924 - 1926
258 Ibid PN 1936
259 Ibid PN 1930 - 1934
260 Exhibit R4 at paragraph 34 and Attachment DS9
261 Transcript PN 1927
262 Ibid PN 1971
263 Ibid PN 1970
264 Ibid PN 1997 - 1999
265 Exhibit R2 at Attachment TC7
266 Ibid
267 Ibid
268 Ibid
269 Ibid
270 Transcript PN 2022
271 Ibid PN 2023
272 Ibid PN 1160 - 1167
273 Ibid PN 1162
274 Ibid PN 1164 - 1166 and Exhibit A5
275 Ibid PN 1176, 1181 - 1182, 1184 and 1187
276 Ibid PN 1176 - 1177, 1185 - 1186, 1188 - 1191, 1193, 1199 - 1201 and 1269 - 1270 and Exhibit R2 at paragraph 36
277 Ibid PN 1183
278 Ibid PN 1195 - 1197
279 Ibid PN 1202 - 1204
280 Ibid PN 1205 and 1219 - 1220
281 Ibid PN 1206 - 1208
282 Ibid PN 1209 - 1210 and 1614 - 1615
283 Ibid PN 1221 - 1223, 1225 - 1227, 1231 and 1685 - 1686
284 Ibid PN 1228
285 Ibid PN 1230
286 Ibid PN 1233 - 1253
287 Ibid PN 1254 - 1264
288 Ibid PN 1267 - 1268 and 1271 and Exhibit R2 at paragraph 35
289 Ibid PN 832 - 833
290 Ibid PN 836 - 837 and 2326 and Exhibit A2 at paragraph 30
291 Ibid PN 2327 and 2343
292 Ibid PN 842 - 844
293 Ibid PN 838 - 839 and 847
294 Ibid PN 849
295 Ibid PN 856 - 857 and Exhibit A2 at paragraph 27
296 Exhibit A2 at paragraph 28
297 Transcript PN 856 - 860
298 Ibid PN 865
299 Ibid PN 861 - 862
300 Ibid PN 863 - 864 and 870 - 873 and Exhibit A2 at paragraph 29
301 Ibid PN 866 - 868
302 Ibid PN 918 - 919
303 Exhibit A2 at paragraphs 32 - 34
304 Exhibit R6 at paragraph 11
305 Ibid at paragraph 15 and Transcript PN 2024 - 2025
306 Transcipt PN 2027
307 Exhibit R6 at paragraphs 14 - 16
308 Ibid at paragraph 18 and Transcript PN 2033
309 Ibid at paragraph 19 and ibid PN 2028 - 2030, 2032 and 2035
310 Transcript PN 2031 - 2032 and 2035
311 Exhibit R6 at paragraph 20
312 Ibid at Attachment DA1 and Transcript PN 2034
313 Ibid at paragraph 25 and Attachment DA3 and ibid PN 2036 - 2037
314 Exhibit R6 at paragraph 24
315 Ibid at paragraph 25 and Attachment DA3 and Transcript PN 2036 - 2037
316 Transcript PN 2038 - 2039
317 Exhibit R6 at paragraph 29
318 Transcript PN 2099
319 Ibid PN 1003 - 1007
320 Ibid PN 1305 and 1344 and Exhibit R2 at Attachment TC14
321 Ibid PN 1342 - 1346
322 Ibid PN 1326 - 1340, 1349 - 1353 and 1704 and Exhibit A6
323 Ibid PN 1356 - 1357 and 1616 - 1617 and Exhibit A6
324 Ibid PN 1714 - 1716
325 Ibid PN 1722 - 1723
326 Ibid PN 1355
327 Ibid PN 2655 - 2657
328 Ibid PN 2663
329 Ibid PN 2664
330 Ibid PN 2665
331 Ibid PN 2666
332 Ibid PN 2674
333 Ibid PN 2423 - 2424 and 2670
334 Ibid PN 2425 - 2426
335 Ibid PN 2427 - 2429
336 Ibid PN 2430
337 Ibid PN 2431 - 2437, 2664 and 2667
338 Ibid PN 2438
339 Ibid PN 2667
340 Ibid PN 2668 and 2671
341 Ibid PN 2669
342 Ibid PN 2439 - 2440
343 Ibid PN 2441
344 Ibid PN 2672
345 Ibid PN 2673
346 Ibid PN 2443
347 Ibid PN 2445
348 Ibid PN 2445 - 2446
349 Ibid PN 2448
350 Ibid PN 2447
351 Ibid PN 2448
352 Ibid PN 2676
353 Ibid PN 2449
354 Ibid PN 2524 - 2526
355 Ibid PN 2528
356 Ibid PN 2531
357 Ibid PN 2532 - 2533
358 Ibid PN 2535 and 2537
359 Ibid PN 2534
360 Ibid PN 2544 - 2546
361 Ibid PN 2547 - 2549
362 Ibid PN 2551 - 2555
363 Ibid PN 2556 - 2558
364 Ibid PN 2558 - 2563
365 Ibid PN 2570 - 2571
366 Ibid PN 2571 - 2573
367 Ibid PN 2574 - 2584
368 Ibid PN 2585 - 2606
369 Ibid PN 2607
370 Ibid PN 2608
371 Ibid PN 2610 - 2611
372 Ibid PN 2616
373 Ibid PN 2617
374 Ibid
375 Ibid
376 Ibid PN 2618
377 Ibid PN 2537 - 2540
378 Ibid PN 2619
379 Ibid PN 2620 - 2621
380 Exhibit R10 at Attachment RM1
381 Transcript PN 2450 and 2677 - 2678
382 Ibid PN 2451 and 2679 - 2680
383 Ibid PN 2681 - 2682
384 Ibid PN 2622
385 Exhibit R1 at paragraph 48
386 Transcript PN 2623
387 Ibid PN 2624
388 Ibid
389 Ibid
390 Ibid PN 2626
391 Ibid PN 2628
393 Ibid at paragraphs [10] – [12]
394 (1998) 88 IR 21
395 Transcript PN 2452
396 Ibid PN 2630
397 Exhibit A2 at paragraph 60
398 Ibid at paragraph 63, Exhibit A3 at paragraphs 10 - 11 and Transcript PN 348 - 349
399 Exhibit A2 at Attachment JT9
400 Transcript PN 2634
401 Ibid PN 2634 - 2635
402 Ibid PN 2684
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