[2017] FWC 294
FAIR WORK COMMISSION

DECISION


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

Mr Mohammed Adeley
v
BHP Billiton Iron Ore Pty Ltd
(U2016/4162)

DEPUTY PRESIDENT BINET

PERTH, 13 JANUARY 2017

Application for relief from unfair dismissal – valid reason – trust and confidence – dismissal was not unfair.

[1] Mr Mohammed Idit Adeley (Mr Adeley) has made an application (Application) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by BHP Billiton Iron Ore Pty Ltd (BHPB).

[2] Mr Adeley is a long serving employee of BHPB who, in 2014, found himself in financial difficulties. 1 These financial difficulties led to him becoming depressed and he was certified unfit for work. In reliance on statements made by Mr Adeley that he was unable to secure accommodation for his family in Port Hedland and on medical advice that Mr Adeley required the support of his family, BHPB granted Mr Adeley discretionary leave which allowed him to temporarily relocate to Perth.

[3] Mr Adeley made statements to BHPB in the context of managing his fitness for work issues which gave rise to suspicions by BHPB that Mr Adeley had provided misleading information about his own and his family’s residential options and improperly claimed electricity subsidies. 2 An investigation into these issues was subsequently held during which BHPB say they also uncovered fraudulent claims by Mr Adeley for Annual Leave Travel Assistance (ALTA).3 BHPB subsequently terminated Mr Adeley’s employment

[4] BHPB deny that Mr Adeley’s dismissal was unfair, asserting that BHPB had a valid reason for dismissing Mr Adeley and that the process which BHPB undertook to effect that dismissal was procedurally fair.

[5] The Application could not be resolved by conciliation and was consequently listed for hearing. Taking into account the parties circumstances, and their wishes, it was determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application.

[6] In accordance with Directions issued on 13 June 2016, the parties filed and served outlines of submissions, witness statements and documentary evidence in relation to the merits of the Application, and submissions in relation to permission to be represented.

[7] At the hearing, Mr Adeley gave evidence on his own behalf and Ms Sarah Castling, a Senior Human Resources Advisor for BHPB (Ms Castling), gave evidence on behalf of BHPB. A schedule recording a large number of changes to Mr Adeley’s filed witness statement was tendered at hearing. Leave was granted for a consolidated copy of Mr Adeley’s witness statement to be filed which was done so in the evening of the day of the hearing.

Permission to be represented

[8] Both parties sought permission to be represented by lawyers and did not oppose permission being granted to the other.

[9] Section 596 of the FW Act provides as follows:

[10] Mr Adeley’s solicitors sought leave for Mr Adeley to be represented by Ms Maria Saraceni, of Counsel, on the grounds that the factual matrix was complex. They also submitted that, as Mr Adeley had been employed by BHPB for almost 27 years in electrical trades roles, he had limited experience or knowledge of human resource (HR) issues as compared to BHPB’s in house HR practitioners or BHPB’s lawyers (in the event that they were granted leave to represent BHPB.)

[11] Mr Rayn Wade of Ashurst Australia submitted that he should be granted leave to represent BHPB for a number of reasons, including that there was likely to be a significant degree of contested evidence which would necessitate detailed cross examination. He also noted that Ashurst Australia had had carriage of the Application from commencement and had detailed knowledge of it. Mr Wade submitted that the BHPB HR officer with carriage of the matter, Ms Castling, had no advocacy experience and was herself a witness and that this would make appearing unduly complex for her. Mr Wade also noted that it was proposed that Mr Adeley be represented by counsel.

[12] In Warrell v Walton, 4 the Federal Court held that:

[13] Having considered the submissions of the parties, leave to be represented by a lawyer was granted to both parties to enable the Application to be dealt with more efficiently, taking into account the complexity and extent of factual issues in dispute between the parties and the capacity of the parties to effectively represent themselves. The granting of permission to both parties ensured fairness as between the parties.

Background

[14] Mr Adeley commenced employment with what was then Mount Newman Mining (now BHPB) on 5 February 1987. 5

[15] At the time of the termination of his employment in January 2016, Mr Adeley was employed as an Engineering Technician, Electrical within the Port Maintenance Department at BHPB’s Port Hedland operations. 6

[16] From 2000, Mr Adeley and his family occupied a house in Pell Street, South Hedland (Family Home). On 16 March 2005, Mr Adeley purchased the Family Home from BHPB under the BHPB Housing Ownership Scheme Phase 2. 7

[17] On 11 April 2006, Mr Adeley purchased an investment property in Starboard Entrance, South Hedland (Investment Property). 8

[18] In his witness statement 9 Mr Adeley says that his wife and children relocated to Perth sometime in 2013 so that his children could undertake their schooling in Perth. He said that his wife planned to return to live in Port Hedland when their youngest child completed their education.10 This differs from the information Mr Adeley previously provided to BHPB and to a medical practitioner assessing his fitness to work that his family moved to Perth in late 2014 because the Family Home was sold as a result of financial difficulties he was then experiencing.11

[19] From July 2014 Mr Adeley endeavoured to sell the Investment Property to remedy the financial pressures he was experiencing; however because of the condition of the property he was unable to do so and, instead, in December 2014, he sold the Family Home, with settlement to occur on 30 January 2015. 12

[20] In his witness statement Mr Adeley says that on 20 December 2014 Mr Adeley’s wife and children returned to Port Hedland for their summer holidays. According to him, they occupied the Family Home until Settlement on 24 December 2014 and then moved into the Investment Property until 25 January 2015 when Mr Adeley drove them to Perth to recommence schooling. 13

[21] On 10 February 2014 Mr Adeley updated his place of residence from the Family Home to the Investment Property in the online BHPB HR system. 14

[22] Mr Adeley says that the Investment Property was rented to a tenant (Tarin Colwill) from 3 July 2014 until 3 November 2014. 15

[23] During the first week of February 2015, Mr Adeley attended a mental health, welfare and wellbeing seminar arranged by BHPB. He says that, as a result of attending the seminar, he realised that he may require medical intervention because of the stress he was suffering. On 13 February 2015 he visited his General Practitioner who diagnosed him with stress and certified him unfit for work for a month from 14 February 2015. 16

[24] BHPB subsequently arranged for Mr Adeley to be reviewed by an occupational physician in Perth. On 17 March 2015, Dr Chris Easton (Dr Easton) diagnosed Mr Adeley as suffering from a severe depressive disorder. Dr Easton initially certified Mr Adeley unfit for work for two weeks. Following treatment and review, Dr Easton certified Mr Adeley fit for a restricted return to work from 14 April 2015 to 28 April 2015. Mr Adeley, however, did not at that time return to work. He was reviewed by Dr Easton again on 17 June 2015 who certified him fit for a restricted return to work from 28 April 2015 to 19 May 2015 provided Mr Adeley could secure accommodation. 17

[25] Mr Adeley returned to Port Hedland and to work on restricted duties on 7 May 2015. He returned to Perth to attend a review with Dr Easton on 19 May 2015 who assessed Mr Adeley as clinically stable. Mr Adeley returned to Port Hedland and continued on restricted duties until 30 June 2015 when he was informed at a tool box meeting that a friend had been killed in a motor bike accident. 18

[26] On 6 July 2015 Mr Adeley’s General Practitioner in Port Hedland certified him unfit for work from 6 July 2015 until 9 August 2015. Mr Adeley immediately flew to Perth to be with his family. 19

[27] Mr Adeley’s accrued personal sick leave entitlements became exhausted on 13 July 2015. 20

[28] Ms Castling says that she is aware that Mr Adeley had previously told Mr Nott, BHPB’s Superintendent Finucane Island Execution, Port Maintenance, on multiple occasions that he was unable to secure accommodation for himself and his family in Port Hedland. In reliance on this assertion, in July 2015 BHPB granted Mr Adeley discretionary sick leave on full pay to enable him to remain in Perth to be with his family while he focused on his fitness for work. 21

[29] On 23 July 2015, Dr McCarthy conducted a Fitness for Work Assessment of Mr Adeley. Dr McCarthy noted that Mr Adeley had been certified on 14 April 2015 fit for restricted duties but was not able to: “…return to site due to housing restrictions, rather than medical limitations.” In the same report, Dr McCarthy expressed the view that one of the most significant issues for Mr Adeley was his loss of accommodation in Port Hedland and the associated estrangement from his wife. 22

[30] Dr McCarthy concluded that, in the circumstances, Mr Adeley would be likely to be unfit for work for at least three months and not able to return to full time work without restriction for at least 6 months.  23

[31] During the second half of September 2015, Mr Adeley drove to Port Hedland and worked for approximately two weeks. He says that he lived alone in the Investment Property during this time but found it adversely affected his state of mind. 24 He subsequently returned to Perth to live with his family.25

[32] On 23 October 2015, Dr McCarthy conducted another psychiatric Fitness for Work Assessment of Mr Adeley in Perth. Dr McCarthy indicated that Mr Adeley was not fit for work and that his unfitness for work was likely to continue for more than six months. Dr McCarthy expressed the view that without the support of his family with him in Port Hedland Mr Adeley would be likely to experience an exacerbation of his psychiatric symptoms. 26

[33] Dr McCarthy provided a supplementary report on 20 November 2015 in which he advised that:

[34] Mr Adeley continued on discretionary sick leave until 24 November 2015.

[35] On 23 November 2015 Mr Nott and Ms Castling met with Mr Adeley to discuss his fitness for work. Mr Nott told Mr Adeley at this meeting that BHPB were considering terminating Mr Adeley’s employment because Dr McCarthy had indicated that he believed Mr Adeley would be unfit for work for the foreseeable future. Mr Adeley told BHPB that his personal circumstances were improving, he felt ready to work and was in the process of securing accommodation for himself and his family to relocate back to Port Hedland. 28

[36] Mr Adeley says that Ms Castling told him that his discretionary leave would expire the following day and if he wished to continue to be paid whilst not at work he would need to take annual leave or long service leave. 29 He says that he subsequently applied for, and was allowed to access, long service leave from 7 December 2015 until 31 January 2016.30

[37] On Friday 27 November 2015, Mr Adeley had a telephone conversation with Mr Nott during which Mr Nott confirmed what was discussed at their 23 November 2015 meeting. Mr Nott advised Mr Adeley that a letter would be sent to him as a result of that meeting. 31

[38] On 3 December 2015, BHPB notified Mr Adeley in writing that he would be permitted to return to work if:

[39] Mr Adeley was directed to provide this documentation no later than 11 January 2016.32

[40] On 17 December 2015 Mr Adeley called Ms Castling and told her that he had a rental property in Port Hedland in relation to which the tenants had requested to break the lease which would enable Mr Adeley and his family to move into the property. 33 (This is contrary to Mr Adeley’s oral evidence that he lived alone in the Investment Property and that it was not tenanted after November 2014.34)

[41] Ms Castling says that at that time she was unaware that Mr Adeley owned an investment property in Port Hedland. 35 Following this discussion Ms Castling asked BHPB’s Employee Services team to pull up Mr Adeley’s records in respect of claims he might have made in relation to the Investment Property. She says she discovered from these records that Mr Adeley had made claims for electricity subsidies in relation to the Investment Property for the period between January 2015 and October 2015 and ALTA claims for his family. Ms Castling was aware that Mr Adeley had relocated to Perth in July 2015 and that his family had relocated on or before December 2014.36

[42] On 31 December 2015 Mr Adeley attended an investigation interview with Mr Nott and Ms Castling (First Investigation Interview) and Mr Adeley’s support person, Mr Adrian Wells, BHPB Maintenance Co-ordinator, Acting Superintendent. 37 Two allegations were put to Mr Adeley, firstly that he had provided misleading information in relation to the Investment Property and secondly that he had falsely claimed for electricity subsidies for that property.38

[43] At the First Investigation Interview, Mr Adeley was asked to confirm whether in March/April 2015 he had indicated to BHPB that he required company housing because he was experiencing financial difficulties which had resulted in the need for him to sell his house in Port Hedland. Mr Adeley confirmed that he recalled the conversation and that settlement on the sale of his home occurred on 30 January 2015. 39 He also said that in light of the pending sale of his home, and in the absence of any alternative accommodation, his spouse and children had relocated to Perth in December 2014.40

[44] At this interview Mr Adeley asserted that, in accordance with company procedure, on or around 2 January 2015 he had told BHPB’s Housing Department that he was moving from his home and provided them with the address of the Investment Property as his new place of residence. Mr Adeley told Mr Nott and Ms Castling that he eventually moved into the Investment Property in mid January but admitted that he failed to disclose that he was staying in a property that he owned. 41

[45] During the interview Mr Adeley agreed that he told Ms Castling on 17 December 2015 that he no longer required company housing because he had an Investment Property at 10 Starboard Entrance, South Hedland into which his family could move. 42

[46] Ms Castling says that Mr Adeley acknowledged at the interview that BHPB had permitted him to relocate to Perth in July 2015 because the medical advice was that Mr Adeley required the support of his family and Mr Adeley had told BHPB that his family could not be accommodated in Port Hedland. 43

[47] Ms Castling says that during the interview Mr Adeley was asked why he did not move his family into the Investment Property earlier. Ms Castling says that Mr Adeley claimed that the property had been tenanted and he was unable to ‘kick the tenants out’. She says that Mr Adeley said that, although his family could not be accommodated, because he knew the tenants had allowed him to sleep on the couch while he was living in Port Hedland between February 2015 and July 2015. She says that he added that the tenants had only informed him of their desire to break the lease 2-3 days before his discussion with her on 17 December 2015. 44

[48] Mr Adeley was then asked to provide BHPB with a copy of the tenancy agreement in relation to the Investment Property and proof that the agreement had come to an end earlier than expected. At this point Mr Adeley confessed that there was in fact no formal tenancy agreement in place in relation to the Investment Property and the tenants were living in the property under an informal arrangement. Mr Adeley conceded that this information was inconsistent with conversations Mr Adeley had previously had with Mr Nott but he sought to justify the discrepancy on the grounds that he had been stressed and on heavy medication at the time. 45

[49] Mr Adeley was also asked about two claims he made for electricity subsidies in relation to the Investment Property for periods between July and October 2015 when Mr Adeley was living in Perth and the Investment Property was occupied by tenants. Mr Adeley claimed he was entitled to the subsidies because his situation was akin to an employee on long service leave who was not present in their home but still required electricity for fridges and freezers. Mr Adeley claimed that his tenants did not reimburse him any of the electricity costs associated with the Investment Property. 46

[50] In light of Mr Adeley’s admission at the First Investigation Interview that his family moved from Port Hedland to Perth in December 2014, BHPB became concerned about the legitimacy of ALTA claims made by Mr Adeley in respect of travel allegedly undertaken by his wife and four children in February 2015, at a time when he had told BHPB that his family was not living with him in Port Hedland. 47

[51] BHPB therefore decided to convene a second investigation meeting with Mr Adeley (Second Investigation Interview). Prior to the Second Investigation Interview occurring, Ms Castling sought Dr McCarthy’s medical opinion as to whether Mr Adeley’s medical condition could have caused him to provide misleading information and whether he was fit to participate in a disciplinary meeting which could result in serious disciplinary outcomes, including termination of employment. 48

[52] In the early afternoon of 11 January 2016, Dr McCarthy confirmed that Mr Adeley’s:

[53] On 11 January 2016, Mr Nott and Ms Castling convened the Second Investigation Interview to discuss with Mr Adeley their concerns with respect to Mr Adeley’s ALTA claim and the allegations raised with him at the First Investigation Interview. 50 Mr Adeley declined the opportunity to have a support person present.51

[54] On 10 February 2015 Mr Adeley had signed an ALTA Request which indicated that Mr Adeley’s spouse and four children would depart site on 14 February 2015 and return to site on 18 February 2015 (First ALTA Request). 52

[55] The ALTA Request contained the following undertaking and declaration which Mr Adeley accepted by inserting his signature where indicated on the form:

[56] The First ALTA Request also included a declaration signed by Mr Adeley’s partner which stated that:

[57] In respect of this claimed travel on 14 and 18 February 2015, Mr Adeley also completed a “Remote Area Annual Leave Travel Assistance (ALTA) Declaration” (First ALTA Declaration) which he signed on 23 April 2015.

[58] In the First ALTA Declaration Mr Adeley declared as follows. 55

[59] The First ALTA Declaration form clearly states as follows:

[60] On 10 February 2015 Mr Adeley signed a second ALTA Request which indicated that Mr Adeley’s spouse and four children also intended to depart Site on 21 February 2015 and return to Site on 26 February 2015 (Second ALTA Request). 56

[61] Mr Adeley signed the declaration section of the Second ALTA Request confirming that the information given on the application was to best of his knowledge and belief, true and accurate. 57

[62] On 23 April 2015 Mr Adeley completed a Remote Area Annual Leave Travel Assistance (ALTA) Declaration in respect to this travel (Second ALTA Declaration).

[63] In the Second ALTA Declaration Mr Adeley declared as follows. 58

[64] The Second ALTA Declaration form clearly states as follows:

[65] During the Second Investigation Interview, Mr Adeley was asked to explain why he had claimed ALTA for his wife and children for two trips in February 2015 when (on his own admission) they were not living with him in Port Hedland at the time. 59

[66] Ms Castling says that Mr Adeley admitted that his family did not travel to Port Hedland to visit him on either of the occasions specified in the First ALTA Request and Declaration or the Second ALTA Request and Declaration. She says that Mr Adeley said that he flew to Perth to see his family but that he did not make his own claim for ALTA as he was not entitled to either because he did not have enough annual leave or he was off work at the time. Ms Castling says Mr Adeley told her and Mr Nott that he made the ALTA Requests and Declarations in relation to his family because he needed cash. 60 Mr Adeley says he told Ms Castling that this was the way he had made his claims over the last 27 years of employment.61

[67] Ms Castling says that Mr Adeley acknowledged that he: “…had not made the best decisions” but that he was going through a stressful time and then said words to the effect that:

[68] On 14 January 2016, Mr Nott and Ms Castling held a show cause meeting with Mr Adeley (Show Cause Meeting). Mr Adeley declined the offer to have a support person present at this meeting. 63 At the Show Cause Meeting Mr Adeley was informed that the investigation had substantiated that on a number of occasions during 2015 Mr Adeley breached the BGC Code of Business Conduct (Code) and Charter Value Integrity and Respect (Charter) in that he:

[69] Mr Adeley was informed that BHPB viewed his conduct very seriously and were considering terminating his employment. Mr Adeley was given an opportunity to show cause as to why his employment should not be terminated. 65 In his defence, Mr Adeley stated that he only applied for things which he believed he was entitled to and that he was not at the time in the right state of mind to be making decisions.66 Mr Nott reminded Mr Adeley that Dr McCarthy had advised BHPB that Mr Adeley’s medical condition would not have impacted on Mr Adeley’s capacity to tell the truth.67

[70] Mr Nott and Ms Castling adjourned the meeting to consider Mr Adeley’s responses and his length of the service with the company. When the meeting reconvened they informed Mr Adeley that BHPB had decided to terminate his employment that day with five weeks pay in lieu of notice. Mr Nott provided Mr Adeley with a termination letter and read it aloud. 68

Is Mr Adeley Protected from Unfair Dismissal?

[71] An order for reinstatement or compensation may only be issued if Mr Adeley was protected from unfair dismissal at the time of the dismissal.

[72] Section 396 of the FW Act requires that the Fair Work Commission (FWC) decide four preliminary issues before considering the merits of an application for unfair dismissal.

[73] I am satisfied that the Application was made within the twenty one day period required by subsection 394(2) of the FW Act. I am also satisfied that the Small Business Fair Dismissal Code which applies to employers of fewer than fifteen employees does not apply to Mr Adeley’s dismissal. There is no assertion that Mr Adeley’s dismissal involved redundancy.

[74] Section 382 of the FW Act sets out the circumstances that must exist for Mr Adeley to be protected from unfair dismissal:

[75] It is uncontested that Mr Adeley had completed the minimum employment period and that Mr Adeley was covered by an enterprise agreement. Consequently, I am satisfied the Mr Adeley was protected from unfair dismissal.

Was Mr Adeley’s Dismissal Unfair?

[76] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

[77] The parties conceded, and I am satisfied, that the Small Business Fair Dismissal Code did not apply in the circumstances, that Mr Adeley was dismissed by BHPB and that the dismissal was not a case of genuine redundancy.

Was Mr Gardiner’s dismissal harsh, unjust or unreasonable?

[78] Having been satisfied of each of subsections 385(a),(c)-(d) of the FW Act, it is necessary to determine whether the dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when determining whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:

[79] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

[80] To determine whether Mr Adeley’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.

s.387(a) - Valid reason

[81] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.69 The reasons should be “sound, defensible and well founded”70 and should not be “capricious, fanciful, spiteful or prejudiced.”71 The reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly. 72

[82] BHPB assert that, in breach of the Code, Mr Adeley:

Did Mr Adeley provide misleading information in relation to accommodation options for himself and his family in Port Hedland?

[83] BHPB assert that Mr Adeley knowingly and wilfully misled his Doctors and BHPB in relation to his own and his family’s accommodation situation, resulting in BHPB extending discretionary sick leave to him which, but for the misrepresentations by Mr Adeley, BHPB would have not extended to him.

[84] In the Fitness for Work Assessment conducted by Dr McCarthy on 31 July 2015, Dr McCarthy records that Mr Adeley informed him that his family left Port Hedland in 2014 as a result of the financial difficulties he experienced in 2014.

[85] Dr McCarthy also noted that Mr Adeley, while certified on 14 April 2015 fit for restricted duties, was not able to:

[86] Further on in the same report, Dr McCarthy expressed the view that one of the most significant issues for Mr Adeley was his loss of accommodation in Port Hedland and the associated estrangement from his wife. He also stated that:

[87] When Mr Adeley was reviewed by Dr McCarthy on 23 October 2015, Dr McCarthy recorded that Mr Adeley told him:

[88] Dr McCarthy went on to assess that:

[89] The impression given to Dr McCarthy by Mr Adeley appears to have been that, but for need to sell the Family Home in January 2014, Mr Adeley would have been co-habiting with his wife and family in Port Hedland. This is inconsistent with Mr Adeley’s own evidence in his witness statement and under cross examination that his family moved to Perth in 2013 because his wife and he wanted the children educated in Perth. 77

[90] Working on the presumption that the family had intended to live together and that no accommodation was available for them to do so, Dr McCarthy assessed that the lack of accommodation in Port Hedland for Mr Adeley and his family was a significant contributing factor in his condition and his inability to recover from it.

[91] It is clear that Mr Adeley’s representations with respect to the alleged unavailability of accommodation for his family was a key factor in Dr McCarthy’s medical advice that Mr Adeley was not fit to return to work.

[92] BHPB also assert that Mr Adeley knowingly and wilfully misled BHPB. Mr Adeley admitted under cross examination that he had lied to Ms Castling when he told her that his wife and children had to leave Port Hedland at the end of 2014 because he was forced to sell his home due to financial difficulties, as in fact they had left in 2013 because he and his wife preferred the schooling available in Perth. 78

[93] Mr Adeley initially told BHPB that the Investment Property was occupied by tenants and the subject of a long term lease. However, at the First Investigation Interview, Mr Adeley informed BHPB that there were tenants but no formal tenancy agreement in place in relation to the Investment Property. 79 Subsequently, in his witness statement and in his oral evidence at hearing, Mr Adeley claimed that there were no tenants in the Investment Property post December 2014.80

[94] In light of Dr McCarthy’s medical advice that Mr Adeley needed the support of his family and in reliance on his assertion that his family could not be accommodated in Port Hedland because he had sold his home and had no other alternative ways to accommodate his family, BHPB granted Mr Adeley discretionary sick leave on full pay to enable him to live in Perth with his family while he focused on his fitness for work. 81 Ms Castling’s evidence was clear that, but for Mr Adeley’s representation that a long term formal lease prevented Mr Adeley and his family moving into the Investment Property, she would not have recommended that he be granted discretionary leave.82

[95] I am satisfied that Mr Adeley’s representations that his family had planned to live together in Port Hedland was likely to have impacted on the medical advice that he was not fit to return to work in circumstances where he could not live with them. I am satisfied that his representations that no accommodation was available for his family in Port Hedland formed the basis of the medical advice that he should be allowed to remain in Perth. I am also satisfied that Mr Adeley’s representation that the Investment Property was the subject of a long term formal lease formed the basis of BHPB’s decision that he be granted discretionary leave so he could live in Perth. Based on Mr Adeley’s sworn evidence at hearing, these representations were false and resulted in him obtaining a benefit that he would not otherwise have obtained.

[96] In his defence, Mr Adeley’s counsel relies on the evidence of Ms Castling that Mr Adeley did not formally apply for the discretionary leave but instead it was retrospectively granted at BHPB’s initiative. Ms Castling, in her oral evidence, explained that the discretionary leave was retrospectively granted at BHPB’s initiative when she became aware that Mr Adeley had not been advised by his line manager that he had exhausted his sick leave at the time it became exhausted. 83 According to Ms Castling, in the normal course of events, Mr Adeley should have, at that time, been given the option of applying for discretionary leave or using his accrued long service leave. Ms Castling gave evidence that because this did not occur, BHPB decided to retrospectively grant Mr Adeley discretionary leave at its own initiative.84

[97] The implied relevance of this chain of events appears to be that Mr Adeley did not apply for the discretionary leave and therefore did not seek a benefit to which he was not entitled. It is impossible to determine now whether Mr Adeley would have elected to take long service leave or apply for discretionary leave. It is also not clear on the evidence before me whether he had sufficient long service leave available in fact to do so. Even if, given the choice, Mr Adeley had elected to take long service leave and had sufficient accrued long service leave to do so, the fact remains that, on his own admission, Mr Adeley knowingly lied to his employer, undermining his employer’s trust and confidence in him. 85 Furthermore he did so to obtain benefits, and in fact obtained benefits, to which he would not have been entitled but for his dishonesty.

[98] For example, Mr Adeley gave evidence that he misrepresented his accommodation arrangements to BHPB in order to obtain company housing. In cross examination, BHPB’s Counsel put to Mr Adeley:

Mr Adeley responded:

[99] In his own defence, Mr Adeley claimed that at the time he misled BHPB he was heavily medicated and suffering severe financial and emotional distress. He claims that he is now a different man than he was a year ago because his financial circumstances have improved, he is no longer heavily medicated and he has reinvigorated his commitment to his faith.

[100] While these factors might provide a context for his actions I am not satisfied they provide an excuse for his conduct. At the Show Cause Meeting, Mr Adeley claimed that he had no intention to defraud BHPB and, to the extent he claimed anything to which he was not entitled or provided misleading information, that this was a consequence of his mental state of health at the time. However, the medical evidence obtained by BHPB from Dr McCarthy prior to BHPB determining that it would terminate Mr Adeley’s employment was that Mr Adeley’s illnesses would not have impacted on his capacity to tell the truth. 89

[101] Furthermore, given the factual discrepancies between Mr Adeley’s Application, his witness statement and his oral evidence, 90 it is not clear that his failure to be truthful is limited to those factors on which he relies or the period in time in which he says he was affected by those factors.

[102] Mr Adeley has, on his own admission, knowingly lied to his employer and to other third parties and, as a consequence of these lies, he obtained benefits he would not otherwise have obtained. I am satisfied that this conduct provides a valid reason for the termination of his employment. The fact that he now regrets that conduct and claims that he will not repeat it is not reflected in his conduct since and does not detract from the validity of the reason for termination at the time the dismissal occurred.

Did Mr Adeley Make False ALTA Claims?

[103] BHPB assert that Mr Adeley’s two ALTA claims did not meet the requirements for claiming ALTA set out in the company policies contained in the Oresome Handbook (Handbook). They say the total value of wrongly claimed ALTA is $13,000.

[104] The Handbook sets out employee entitlements to ALTA. According to the Handbook, ALTA is a payment provided by BHPB to employees who live in remote locations to help them with the costs of leaving site, travelling with their family to a holiday destination and then returning to site.  91

[105] The Handbook provides that:

[106] Mr Adeley variously claimed that his family relocated to Perth sometime in 2013, 93 in late December 201494 or late January 2015.95 There is no suggestion that they returned to Port Hedland prior to the termination of his employment. Mr Adeley conceded that he did not take annual leave during 2015 and that at no time in 2015 did his family travel to accompany him on annual leave.96 He also conceded that he lied in the First and Second ALTA Declarations when he stated that his dependents had undertaken travel and that he incurred holiday expenses.97

[107] In his defence, Mr Adeley claimed that it was custom and practice since 2002 that BHPB would pay employees the equivalent of two return economy class airfares for each dependent whether or not the dependent actually undertook travel. 98

[108] He also claimed that he had never read the portion of the ALTA Request which contained the following undertaking and declaration which Mr Adeley accepted by inserting his signature where indicated on the First and Second ALTA Requests: 99

[109] He also denied ever reading the declaration which was signed by Mr Adeley’s partner for the First and Second ALTA Requests which stated that: 101

[110] Other than Mr Adeley’s assertion that it was custom and practice for employees to claim ALTA for dependents without them undertaking travel, there is no evidence before me that this was in fact the case.

[111] To the contrary, Ms Castling gave evidence that it was not in fact custom and practice. Ms Castling gave evidence that, in her capacity as a Senior Human Resource Advisor, she was aware that misclaiming ALTA entitlements is taken seriously by BHPB and is regarded as sufficient reason to dismiss an employee. She says that if the investigation had only substantiated the allegations against Mr Adeley in respect of the misclaimed ALTA amounts she would still have recommended that Mr Adeley’s employment be terminated based on her view that Mr Adeley had knowingly abused the ALTA benefit and claimed money which he was not entitled to. 103

[112] Ms Castling also gave evidence that, during the Second Investigation Interview, Mr Adeley admitted to her and Mr Nott that he made the ALTA claims in relation to his family because he needed cash. 104 Ms Castling says that Mr Adeley acknowledged that he: “…had not made the best decisions” but that he was going through a stressful time and then said words to the effect that:

[113] Given the inconsistency in information given by Mr Adeley throughout the investigation and the course of this matter I prefer the evidence of Ms Castling that a custom and practice which permitted or even ignored false ALTA requests and declarations did not exist. In fact, Ms Castling’s evidence was that, where it was found to have occurred, disciplinary action was taken against the employees concerned and that BHPB policies and procedures had been reviewed to reduce the risk of employees making claims they were not entitled to. 106

[114] I am satisfied that the conscious and wilful falsification of the ALTA claims was a valid reason for the termination of Mr Adeley’s employment. The fact that Mr Adeley subsequently offered to pay back the money when it became clear his employment was in jeopardy does not detract from the validity of BHPB’s reason for dismissing him. 107

Did Mr Adeley Make False Electricity Subsidy Claims?

[115] It is submitted on Mr Adeley’s behalf that his entitlement to claim the electricity subsidy arises from the BHP Iron Ore Pty Ltd Port Hedland Housing Policy Phase 3 (Phase Three Policy).

[116] The Phase Three Policy was forwarded to Mr Adeley by a member of the BHPB Housing Department in February 2015. According to Mr Adeley, the Phase Three Policy was forwarded to him following a telephone inquiry which he made after moving into the Investment Property and updating his residential details in the online BHPB HR system in which he inquired whether he was entitled to receive housing and/or utility subsidies. 108

[117] Mr Adeley says that he read the policy and took it to mean that, as he was living in a property which he owned, he was entitled to claim 18,000 Kilowatts of electricity and 10,000 litres of water per year. 109

[118] Clause 4.3 of the Phase Three Policy provides for an electricity allowance as follows:

[119] Clause 4.5 provides that all non air-conditioning domestic electricity charges will be the direct responsibility of the employee. 111

[120] Interestingly, Mr Adeley purchased the Family Home under the BHPB Housing Ownership Scheme Phase Two Policy (Phase Two Policy) and subsequently sold that property. The Phase Two Policy was not in evidence at the hearing, however it is interesting to note that clause 2.6.5.4 of the Phase Three Policy provides that:

[121] Ms Castling gave evidence that she and Mr Nott took the view at the First Investigation Interview that Mr Adeley was not entitled to any subsidy because the Investment Property was not his true principle place of residence based on the information that he had previously provided to Mr Nott and Ms Castling that he was ‘couch surfing’ and that the Investment Property was being rented by tenants. 113

[122] Mr Adeley now says that there were no tenants in the Investment Property and therefore he was entitled to claim the subsidy. He also seeks to rely on his nomination of the Investment Property as his Principle Place of Residence in the BHPB HR system to substantiate his entitlement to the subsidy.

[123] The fact that Mr Adeley described the Investment Property in the HR System as his Principal Place of Residence doesn’t make it so. What makes it so is where he actually resided. The information which he concedes he provided to Ms Castling and Mr Nott was that he was couch surfing because he didn’t have a property in which to live. Whether the Investment Property was tenanted or not, Ms Castling and Mr Nott relied on the information provided to them by Mr Adeley at the time. Based on the information which he concedes he told them they were entitled to believe that he was claiming a subsidy for a property which was not his Principal Place of Residence.

[124] BHPB submit that, even if the Investment Property was Mr Adeley’s Principal Place of Residence for the purposes of accessing electricity subsidies, he was not entitled to claim such subsidies for periods in which he was absent from Port Hedland.

[125] Mr Adeley made claims for electricity subsidies for the period between 6 June 2015 and 5 October 2015 as set out below:

[126] Mr Adeley gave evidence that he left Port Hedland and flew to Perth on 6 July 2015 to be with his family. 115 Mr Adeley says that he only returned to Port Hedland briefly for two weeks in the second half of September 2015.116

[127] On his own evidence, Mr Adeley was only occupying the Investment Property for approximately 6 weeks of the 17 plus weeks he claimed the allowance. Mr Adeley gave evidence at the hearing that, contrary to what he told BHPB prior to his dismissal, he was the only occupant of the Investment Property after December 2014 and that he left the air conditioning running for the period in which he was not in occupation of the house. 117

[128] According to the Phase Three Policy, Mr Adeley is only entitled to electricity subsides for air-conditioning.

[129] The amount claimed by Mr Adeley was the full amount of the electricity bill. Mr Adeley admitted that the power charges he claimed from BHPB included: “… other items as well”. 118 To the extent that the power usage related to other items such as refrigerators, freezers and lights then, under the terms of the Phase Three Policy, Mr Adeley was not entitled to the subsidies he claimed.

[130] The question then arises, was Mr Adeley entitled to the balance of the quantum of the electrical subsidies he claimed? Ms Castling says that Mr Adeley told her there were tenants in the property who were paying rent.

[131] It seems highly implausible that Mr Adeley would leave his air-conditioning running for the 11 weeks he was absent from the Investment Property, in which case it may well have been the case that the Investment Property was in fact occupied by tenants, although Mr Adeley now denies that this was the case. It is not clear what the truth is.

[132] Mr Adeley’s counsel conceded that Mr Adeley accepted that he would not be entitled to claim the subsidy if the Investment Property was leased.

[133] Based on the information provided to them by Mr Adeley that he was ‘couch surfing’ and that the property in relation to which the claim had been made was an investment property, I am satisfied that in the circumstances it was not unreasonable for BHPB to conclude that Mr Adeley was not entitled to the subsidies he claimed. 121

[134] Even if it is the case that Mr Adeley was in fact entitled to claim the subsidies, BHPB’s investigation into his entitlement to the subsidies revealed inconsistencies in information provided by Mr Adeley to his employer which could reasonably cause his employer to lose its trust and confidence in him and determine that his ongoing employment was no longer viable.

[135] In conclusion, I find that there were multiple valid reasons for Mr Adeley’s dismissal.

s.387(b) - Notification of the valid reason

[136] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,122 in explicit terms123 and in plain and clear terms.124 In Crozier v Palazzo Corporation Pty Ltd125 a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cwth), stated that:

[137] BHPB conducted two investigation interviews. At the First Investigation Interview two allegations were put to Mr Adeley, firstly, that he had provided misleading information in relation to the Investment Property and secondly, that he had falsely claimed for electricity subsidies for that Investment Property.

[138] At the Second Investigation Interview BHPB raised with Mr Adeley their concerns about Mr Adeley’s ALTA claim and revisited the allegations raised with him at the First Investigation Interview. 127

[139] As a consequence of the information provided by Mr Adeley at these investigation interviews, BHPB conducted the Show Cause Meeting at which the allegations in reliance on which BHPB were considering the termination of his employment were put again put to Mr Adeley. 128

[140] I am satisfied that Mr Adeley was notified of the reasons BHPB proposed to terminate his employment such that he was in a position to respond to those reasons.

s.387(c) - Opportunity to respond

[141] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.129

[142] Mr Adeley was given the opportunity to respond to the allegations made against him at both the First and Second Investigation Interviews and at the Show Cause Meeting. Ms Castling gave evidence that a definite decision to terminate Mr Adeley’s employment was not made until after the Show Cause Meeting.

[143] I am satisfied that the Applicant was given an adequate opportunity to respond to the reasons for the dismissal.

s.387(d) - Unreasonable refusal by the employer to allow a support person

[144] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. 131

[145] A support person accompanied Mr Adeley to the First Investigation Interview held on 31 December 2015. 132

[146] Mr Adeley concedes that he was happy to proceed without a support person at the Second Investigation Interview. 133

[147] Mr Adeley was invited to have a support person present at the Show Cause Meeting but elected to proceed without one. 134

[148] I am satisfied that BHPB did not unreasonably refuse to allow Mr Adeley to have a support person present at discussions relating to his dismissal.

s.387(e) - Warnings regarding unsatisfactory performance

[149] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.135

[150] I find that Mr Adeley was dismissed for misconduct rather than poor performance and that therefore BHPB had no obligation pursuant to subsection 387(e) to provide warnings.

s.387(f) and s.387(g) - Impact of the size of the respondent on procedures followed and the presence or absence of dedicated human resources management specialist/expertise on procedures followed

[151] BHPB is a large organisation with dedicated internal, and access to external, human resource management and employment law expertise. This was reflected in the processes and documentation utilised in the investigation of the allegations involving Mr Adeley and ensured that Mr Adeley was afforded procedural fairness.

s.387(h) - Other relevant matters

[152] Section 387(h) provides the FWC with a broad scope to consider any other matters it considers relevant. In Mr Adeley’s circumstances it is relevant to consider his record of service. Mr Adeley has an exceptionally long period of service with BHPB. He had been employed for more than 29 years. 136

[153] Ms Castling gave evidence that Mr Adeley’s record of service was taken into account in determining an appropriate disciplinary sanction in light of the findings of the misconduct investigation. However, she says that the extent of inconsistency in information which Mr Adeley had provided BHPB with over a period of at least 11 months, which could not be explained on medical grounds, 137 severely damaged BHPB’s trust and confidence in him.138 Ms Castling also gave evidence that the damage to BHPB’s trust and confidence in Mr Adeley was further accentuated by Mr Adeley’s lack of mea culpa.139

[154] It is a sad turn of events that Mr Adeley found himself in the perilous financial circumstances that he did. Fortunately for his family, he had the courage to seek help when the pressure of his circumstances became unbearable. It is a credit to BHPB that it was a sufficiently enlightened employer to provide the employee programs and medical assistance which it did to support Mr Adeley through a difficult period of his life.

[155] It is a terrible pity that after nearly 30 years of service Mr Adeley’s departure from BHPB has occurred in such negative circumstances. However, Mr Adeley is the master of his own fate. On his own admission he wilfully and knowingly sought to obtain benefits by deceit. Over an extended period of time he weaved such a complicated web of lies that now it is impossible to discern when he is telling the truth and when he is not.

[156] Having considered each of the matters specified in s.387, including whether there are any other relevant matters which make Mr Adeley’s dismissal harsh, unjust or unreasonable, I am satisfied that the dismissal of Mr Adeley was not in all the circumstances harsh, unjust or unreasonable. Accordingly, I find Mr Adeley’s dismissal was not unfair.

[157] An order (PR589401) to this effect will be issued with this decision.

tle: Seal of the Fair Work Commission with DP Binet's Signature

DEPUTY PRESIDENT

Appearances:

M Saraceni of Counsel for the Applicant.

R Wade of Ashurst Australia for the Respondent.

Hearing details:

2016.

Perth:

July 18.

Final written submissions:

Applicant, 11 July 2016

Respondent, 27 June 2016

 1   Exhibit A1 at [68].

 2   Exhibit R2 at [9].

 3   Exhibit R2 at [11].

 4   Warrell v Walton [2013] FCA 291 at [24].

 5   Exhibit R2 at [5] and Applicant’s Submissions filed 11 July 2016.

 6   Exhibit R2 at [12].

 7   Exhibit A1 at [10]-[14].

 8   Ibid at [27].

 9   Mr Adeley confirmed this to be true under cross examination, see Transcript PN78-PN82.

 10   Exhibit A1 at [17]-[18].

 11   Exhibit A2,Tab 22 and Transcript PN90.

 12   Exhibit A1 at [19]-[25].

 13   Ibid at [20]-[24].

 14   Ibid at [83] and Exhibit A2, Tab 3.

 15   Exhibit A1 [32]-[33] & Exhibit A2, Tab 1.

 16   Exhibit A1 at [88]-[93] and Exhibit A2, Tab 11.

 17   Exhibit A1 at [100]-[115] and Exhibit A2, Tabs 13-14, 17-19.

 18   Exhibit A1 at [116]-[120] and Transcript PN140.

 19   Exhibit A1 at [126]-[128] and Exhibit A2, Tab 20.

 20   Exhibit R1, Respondent’s Exhibit Book (Exhibit R1), Tab 2.

 21   Exhibit R1, Tab 2 and Exhibit R2 at [13]-[14].

 22   Exhibit A2, Tab 22.

 23   Exhibit A2, Tab 22.

 24   Exhibit A1 at [144]-[147].

 25   Transcript PN [124]-[125].

 26   Exhibit A2, Tab 24.

 27   Exhibit A2, Tab 25 and Exhibit R2 at [15].

 28   Exhibit A1 at [159]; [168]–[169]; Exhibit R2 at [16]; Exhibit A2, Tab 21.

 29   Exhibit A1 at [169A] and Exhibit A2, Tab 27A.

 30   Exhibit A1 at [174A] and Exhibit A2, Tab 27A, Tab 27B, Tab 27C and Tab 27D.

 31   Exhibit A1 at [175]-[177].

32 Exhibit A2, Tab 21.

 33   Exhibit R2 at [18].

 34   Exhibit A1 at [32]-[33].

 35   Transcript PN796.

 36   Transcript PN796.

 37   Exhibit R2 at [51] and Exhibit A1 at [186]-[187].

 38   Exhibit R1, Tab 4 and Exhibit R2 at [23]-[25].

 39   Ibid.

 40   Ibid.

 41   Transcript PN869-PN871 and Exhibit R2 at [45].

 42   Exhibit A1 at [181].

 43   Exhibit R1, Tab 4 and Exhibit R2 at [23]-[25].

 44   Ibid.

 45   Ibid.

 46   Exhibit R1, Tab 4; Exhibit R2 at [23]-[25] and Exhibit A1 at [190]-[192].

 47   Exhibit R2 at [25].

 48   Ibid at [53]-[54].

 49   Ibid at [55] and Exhibit R1, Tab 12.

 50   Ibid at [27].

 51   Ibid at [52] and Exhibit A1 at [199].

 52   Exhibit R1, Tab 8 and Exhibit R2 at [30].

 53   Exhibit R1, Tab 8.

 54   Exhibit R1, Tab 8.

 55   Exhibit R1, Tab 9.

 56   Exhibit R1, Tab 10.

 57   Exhibit R1, Tab 10.

 58   Exhibit R1, Tab 11.

 59   Exhibit R2 at [37].

 60   Exhibit R2 at [38].

 61   Exhibit A1 at [210].

 62   Exhibit R2 at [39] and Exhibit R1, Tab 6.

 63   Exhibit A1 at [215]-[216].

 64   Exhibit R2 at [57] and Exhibit R1, Tab 13.

 65   Exhibit R2 at [58]; Exhibit A1 at [218]; Exhibit R1, Tab 13.

 66   Exhibit R2 at [58-59] and Exhibit R1, Tab 13 and Exhibit A1 at [215]-[221].

 67   Exhibit R1, Tab 14 and Exhibit R2 at [54].

 68   Exhibit R2 at [60] and Exhibit A1 at [222].

69 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

70 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

71 Ibid.

 72   Ibid.

 73   Exhibit A2, Tab 22.

 74   Ibid.

 75   Exhibit A2, Tab 24.

 76   Ibid.

 77   Transcript PN82.

 78   Transcript PN92.

 79   Exhibit R2 at [22]-[24].

 80   Transcript at PN140 – PN145 and Exhibit A1 at [181].

 81   Exhibit R2 at [13]-[14].

 82   Exhibit R2 at [25].

 83   Transcript PN628-PN645 and PN856.

 84   Transcript PN632-PN645.

 85   Transcript PN1160.

 86   Transcript PN164.

 87   Transcript PN164.

 88   Transcript PN278.

 89   Exhibit R2 at [55] and Exhibit R1, Tab 12.

 90   See for example, Transcript PN240 where the Applicant denies ever having had the opportunity to read what is referred to as the "Oresome Handbook" but when the document is put to him by his Counsel at Transcript PN467-PN474 he recalls having seen it before.

 91   Exhibit R1, Tab 7.

 92   Exhibit R1, Tab 7.

 93   Exhibit A1 at [17]-[18].

 94   Exhibit A2, Tab 22 and Transcript PN90.

 95   Exhibit A1 at [20]-[24].

 96   Transcript PN216-PN217 and PN238.

 97   Transcript PN263.

 98   Transcript PN222.

 99   Transcript PN254.

 100   Exhibit R1, Tabs 8 and 10.

 101   Transcript PN255.

 102   Exhibit R1, Tabs 8 and 10.

 103   Exhibit R2 at [41]-[42].

 104   Exhibit R2 at [38].

 105   Exhibit R2 at [39] and Exhibit R1 Tab 6.

 106   Transcript PN1210.

 107   Transcript PN1160.

 108   Exhibit A2, Tab 9.

 109   Exhibit A1 at [87].

 110   Exhibit A2, Tab 9.

 111   Exhibit A2, Tab 9.

 112   Exhibit A2, Tab 9.

 113   Transcript PN935.

 114   Exhibit A2, Tab 33B.

 115   Exhibit A1 at [126]-[128], Exhibit A2, Tab 20.

 116   Exhibit A1 [144]-[147].

 117   Transcript PN159-PN160.

 118   Transcript PN196.

 119   Transcript PN1227.

 120   Transcript PN1272.

 121   Transcript PN1090-PN1091.

122 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

123 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

124 Previsic v Australian Quarantine Inspection Services Print Q3730.

125 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.

126 Ibid at 151.

 127   Exhibit R2 at [27].

 128   Transcript PN1149.

129 RMIT v Asher (2010) 194 IR 1, 14-15.

 130   Transcript PN1149.

 131   Explanatory Memorandum, Fair Work Bill 2008 (Cwth), [1542].

 132   Exhibit A1 at [187] and Transcript PN1093.

 133   Exhibit A1 at [199].

 134   Exhibit A1 at [216]; Exhibit R1, Tab 13 and Transcript PN1094 –PN1095.

135 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 136   Transcript PN269, PN329-330, PN1205, PN1238, PN1281.

 137   Transcript PN1207.

 138   Transcript PN1206.

 139   Transcript PN1207.

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