[2017] FWCFB 1929 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT CATANZARITI |
SYDNEY, 12 APRIL 2017 |
Appeal against decision [[2017] FWC 147] of Commissioner Cirkovic at Melbourne on 9 January 2017 in matter number U 2016/6326.
[1] Mr Daniel Palmer was employed by USG Boral Building Products Pty Ltd until he was dismissed on 30 March 2016. Mr Palmer lodged an unfair dismissal application and on 9 January 2017, Commissioner Cirkovic issued a Decision 1 in which she found that Mr Palmer’s dismissal from employment was not unfair. An Order was subsequently issued dismissing Mr Palmer’s application in accordance with the Decision.2
[2] On 30 January 2017, the CFMEU lodged a Notice of Appeal appealing the Decision. On 1 March 2017, an amended Notice of Appeal was filed seeking to change the name of the Appellant to Mr Daniel Palmer and to amend the grounds of appeal. No objection was taken to these amendments and we granted the application to amend.
[3] We heard the matter regarding the application for permission to appeal and the appeal on 6 March 2017.
[4] At the hearing, Mr P. Boncardo from the CFMEU appeared for Mr Palmer and Mr R. Marshall, a legal practitioner, sought permission to appear for USG. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to USG to be represented.
[5] We have decided to grant permission to appeal, uphold the appeal and quash the original Decision and Order. We have also decided to refer the matter to Commissioner Cirkovic to hear and determine the application. These are our reasons.
The Decision at First Instance
[6] The Commissioner found there was a valid reason for Mr Palmer’s dismissal. She acknowledged that, given the allegations relied upon by USG, the Commissioner must make a finding that the conduct occurred based on the evidence before her. 3
[7] The Commissioner then set out the conduct relied upon by USG.
3 December 2015
[8] The Commissioner found that the incidents of unsafe forklift manoeuvring by Mr Palmer occurred and that these issues were discussed with Mr Palmer extensively on 14 December 2015. 4
18 December 2015
[9] Mr Palmer was loading cornices onto a truck. The driver and jockey from the truck had initially been in the safe zone. The jockey moved out of the safe zone. Mr Palmer’s load dislodged and fell. USG alleged that the load had just missed the jockey. Mr Palmer gave evidence that he did not know that the jockey had moved out of the safe zone and he was unaware at the time that a near miss occurred. USG alleged that Mr Palmer was aware that the jockey was not in the safe zone or should have been aware that the jockey was not in the safe zone and he should not have commenced loading the truck until he was sure where the driver and the jockey were. USG also alleged that Mr Palmer failed to report the seriousness of the near miss, withheld information relating to the investigation of the incident and failed to follow the correct process in relation to recording damaged products. Mr Palmer was issued with a first and final warning in relation to this incident.
[10] The Commissioner made the following findings in relation to this incident.
“Whilst the Applicant cannot be expected to take full responsibility for the 18 December 2015 incident and it is apparent that the jockey was partially to blame for the ‘near miss’, it was in my view incumbent on the Applicant to demonstrate ownership as to his role in this incident. It involved both damage to product of at least 5 tonne and more importantly the potential for an employee to suffer serious injury if not fatality. I also have concerns about the manner in which the Applicant dealt with the reporting of the incident. Whilst there is insufficient evidence before me to find that the Applicant acted dishonestly, I am satisfied that the Applicant failed in his duty to take a proactive and rigorous approach in reporting this serious incident fully to his superiors immediately after it occurred. In my view to simply leave a report about an incident of this significance on Mr Simpson’s desk without any further action displays a level of nonchalance by the Applicant towards safety requirements and the reporting of them in the workplace. Further, I concur with the Respondent’s conclusion that after the Applicant became fully aware of the incident, including viewing the footage, he failed to display the requisite contrition and failed to acknowledge the seriousness of the incident. In my mind, these failures display a fundamental lack of appreciation of the requirement to adhere to safety practices in the work place.” 5
Incident of 17 March 2016
[11] It was not disputed that Mr Palmer failed to wear safety glasses on occasions. It was not disputed that he had been warned about not wearing safety glasses prior to 17 March 2016. On that day, he was again seen with his safety glasses on his head. Mr Palmer submitted that the glasses incident did not of itself provide a valid reason for the termination of employment and that USG policy was confusing and inconsistently applied. He said that his prior breaches had not met with any formal disciplinary action. USG denied that its policy was confusing or inconsistently applied.
[12] The Commissioner found that Mr Palmer understood the workplace policies which applied, including the policy about wearing safety glasses. She found that he had admitted to breaching the policy. The Commissioner found that “the concerning aspect of the Applicant’s behaviour is that he has continued to breach rules and directions over a period of time … Given the Applicant’s previous counselling in relation to safety incidents, despite repeated requests to comply with the requirement to wear safety glasses, and given that he was on a first and final warning for other safety breaches, it is unacceptable for him to continue to display a disregard for the Respondent’s safety policies.” 6
[13] The Commissioner concluded that “the Applicant had consistently demonstrated that he could not or would not comply with reasonable and fundamental site rules, directions and procedures, particularly those relating to safety, despite warnings he received along the way. I am satisfied that this conduct was ultimately inconsistent with the trust and confidence required in a continuing employment relationship. I am satisfied that his conduct was in breach of the Respondent’s safety policies and there is a valid reason for terminating the Applicant’s employment.” 7
[14] The Commissioner made findings in relation to s.387(b)-(h) which are not challenged in this appeal.
Grounds of Appeal
[15] We summarise the grounds of appeal as follows.
[16] In grounds 1 and 2, Mr Palmer submitted that the Commissioner took into account extraneous matters when deciding that there was a valid reason for the dismissal. Those matters were the failure of Mr Palmer to accept ownership of his role in the incident on 18 December 2015 and his failure to report the incidents to his superiors.
[17] In ground 3, Mr Palmer submitted that the Commissioner made a significant error of fact, in the absence of any evidence, namely, that Mr Palmer had a duty to take a proactive and rigorous approach to fully reporting safety incidents to his superiors.
[18] In ground 4, Mr Palmer submitted that the Commissioner failed to take into account a relevant fact, namely, the inconsistent application of the safety policy concerning the wearing of safety glasses.
[19] In ground 5, Mr Palmer submitted that the Commissioner asked herself the wrong question in that she asked whether the decision to dismiss him was reasonably made, as opposed to whether his conduct was sufficiently serious to support a finding of a valid reason.
[20] In ground 6, Mr Palmer submitted that the Commissioner erred in failing to assess whether the application of the safety glasses policy was reasonable in the circumstances Mr Palmer found himself in on 17 March 2016.
Mr Palmer’s Submissions
[21] It was submitted that the Commissioner focused on the wrong issue when she said it was incumbent on Mr Palmer to demonstrate ownership of his role in what occurred on 18 December 2015. She was instead required to determine the gravity of Mr Palmer’s conduct and determine if he had engaged in a wilful or reckless breach of policy. She had to determine whether the 18 December 2015 incident was sufficiently serious to justify dismissal.
[22] It was submitted that the Commissioner failed to have regard to the fact that, prior to the loading, he had checked to ensure that the jockey was not in the exclusion zone and that he was not aware that the jockey had entered the exclusion zone. She also disregarded the uncontested evidence of Mr Palmer that the jockey did not tell him about the near miss.
[23] It was submitted that the fixation on Mr Palmer’s ownership of the conduct caused the Commissioner to take into account an extraneous consideration. It was submitted that this was an error of law of general importance warranting appellate correction.
[24] Further, it was submitted that the safety glasses policy was not reasonable as Mr Palmer’s evidence was that he had attempted to clean his glasses on numerous occasions without success. It was submitted that it was unsafe for him to drive his forklift with them on and his forklift had a glass windscreen which protected him when driving. It was submitted that USG’s uncompromising application of its policy was unreasonable and the Commissioner had no regard to this. It was submitted that this was an error of law and it was inconsistent with authority.
[25] It was further submitted that the Commissioner failed to objectively assess whether the conduct occurred and whether it was sufficiently serious to ground a valid reason. Mr Palmer noted that the Commissioner, at paragraphs [58] and [60] of the Decision, acknowledged this but failed to properly apply the approach when she concluded that USG had reasonably made the decision to terminate. This, Mr Palmer submitted, was the wrong test and contrary to authority.
[26] It was submitted that while the Commissioner alluded to the evidence of the inconsistent application of the safety glasses policy, she did not take it into account when considering if Mr Palmer’s dismissal was harsh. It was submitted that this was an error of law and contrary to authority.
[27] It was submitted that the Commissioner made a serious error when she found that Mr Palmer failed in his duty to take a proactive and rigorous approach to reporting the 18 December 2015 incident. It was submitted that this finding was not open to her on the evidence. It was said she mistook the facts.
USG’s Submissions
[28] It was submitted that permission to appeal should not be granted because there are no identifiable public interest grounds advanced by Mr Palmer. It was submitted that, apart from ground 3 of the appeal grounds, Mr Palmer is simply seeking to have the Full Bench reconsider the evidence that was before the Commissioner. Unless there is a demonstrable error, that is not the function of the Full Bench.
[29] It submitted that Mr Palmer seeks to focus on the incident of 18 December 2015; however, USG relied upon a number of incidents in its decision to dismiss Mr Palmer.
[30] It was submitted that USG’s evidence provided the basis for USG to conclude that Mr Palmer displayed a concerning lack of ownership in relation to the December incident. This led to the Commissioner’s findings at paragraph [70] of the Decision. It is said that this finding and her comments at paragraphs [77] and [78] of the Decision makes clear the basis of the Commissioner’s Decision that there was a valid reason for the dismissal.
[31] It was submitted that the failure to take ownership is within the scope of conduct provided for in section 387(a) of the Act and, therefore, Mr Palmer’s attempt to narrowly confine the concept should be rejected.
[32] It was submitted that the summary of Mr Palmer’s explanation of why he did not comply with the safety glasses policy was not an accurate summary of his actual evidence. Further, it was submitted that the Commissioner correctly had regard to the fact that Mr Palmer was a serial offender in relation to his disregard for USG’s policies. It was submitted that Mr Palmer disagrees with the Commissioner’s conclusions and this does not disclose any error of law or a significant error of fact.
[33] It was further submitted that the Commissioner applied the right test and made an assessment of the conduct. In particular, that the Commissioner’s findings at paragraphs [58]-[60] of the Decision, as well as her comments at paragraph [78] were available to her on the evidence.
[34] It was denied that there was extensive evidence of inconsistent treatment of employees in relation to the safety glasses policy. It was submitted that the Commissioner had considered Mr Palmer’s assertion of inconsistent treatment at paragraphs [71]-[73] of the Decision and, further, it was not a feature of the case put by Mr Palmer at first instance.
[35] It was further submitted that there was no serious error of fact in relation to the finding that Mr Palmer failed in his duty to take a proactive and rigorous approach to reporting the 18 December 2015 incident. It was submitted that Mr Palmer was required to immediately report the incident to his supervisor and he did not. Therefore, there was no error by the Commissioner.
Mr Palmer’s Submissions in Reply
[36] It was accepted that USG relied on more than the incident of 18 December 2015 to justify the dismissal, but it was submitted that this incident was the primary incident which justified the dismissal. It was submitted that there was a live issue before the Commissioner about whether Mr Palmer knew the jockey was in the exclusion zone when he performed the manoeuvre, or if he did not whether the jockey or the truck driver told him there had been a near miss. It was accepted that if he knew where the jockey was, either before or immediately after the incident, then he had acted improperly in reporting the incident and had deliberately contravened the exclusion zone policy. If not, then he made a skill error in relation to loading the cornices. The Commissioner was required to resolve these competing positions and she acknowledged this during the hearing.
[37] It was submitted that the Commissioner failed to make a finding that, on 18 December 2015, Mr Palmer engaged in the alleged conduct. She became fixated on an extraneous matter, namely, whether he had demonstrated ownership of the incident. This incident was critical to her decision as to whether there was a valid reason. By failing to make the necessary factual findings she made an error of law and acted contrary to authority.
[38] Mr Palmer acknowledged that he raised the issue of the inconsistent application of the safety glasses policy in the context of a valid reason. It was submitted that, despite it not being alluded to as a matter under section 387(h), it was clearly before the Commissioner. The inconsistent application of the policy had the potential to weigh against a finding that the dismissal was a fair and proportionate response and that was recognised by USG in its submissions. It was submitted that, just because the Commissioner noted Mr Palmer’s submission on this point, this does not mean it was taken into account. It was further submitted that, while there was mention of this in her reasoning at paragraphs [73]-[78] of the Decision, it was submitted that the Commissioner did not evaluate the submission or give it appropriate weight. It was submitted this was an error of law in that the Commissioner acted contrary to principle.
Permission to Appeal
[39] We summarise Mr Palmer’s submissions on permission to appeal as follows:
1. The Decision raises issues of general importance and significance as the Commissioner had regard to whether the employee is obliged to take ownership of conduct when the true focus should be on the gravity of conduct and whether it is sufficiently grave or serious as to be a valid reason for the dismissal.
2. The Decision is contrary to authority on valid reason because the Commissioner focused on the employee’s attitude to the conduct rather than the conduct itself.
3. The Decision manifests an injustice because the Commissioner failed to take into account the inconsistent approach of USG to the application of is safety glasses policy and that in the circumstances the safety policy was unreasonable.
4. The Decision was contrary to authority in that the Commissioner did not assess the conduct herself but had regard to whether USG’s decision to dismiss was reasonable.
Consideration – Permission to Appeal
[40] In unfair dismissal matters the Fair work Commission must not grant permission to appeal unless it is in the public interest to do so. 8 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.9 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,10 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[41] In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[42] We are satisfied that it is in the public interest to grant permission to appeal. In circumstances where a critical finding has not been made in relation to the 18 December 2015 incident which would of itself have found a valid reason, then the failure to make such a critical finding would, in our view, enliven the public interest. It is on this basis that permission to appeal is granted.
Consideration – The Appeal
[43] We note that a decision under appeal is of a discretionary nature and such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the Commissioner’s original decision. As the High Court said in House v The King 11:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[44] We now turn to consider each ground of appeal.
Grounds 1 and 2
[45] It was submitted that, in focusing on his ownership of the 18 December 2015 incident, the Commissioner failed to determine whether Mr Palmer had in fact engaged in a wilful and reckless breach of USG’s safety policy.
[46] It was not disputed by USG that the Commissioner did not make a finding that Mr Palmer was aware that the jockey had left the safety zone when he commenced to unload the cornice onto the truck. Further, it was not contested that the Commissioner did not make a finding that Mr Palmer was required to be aware at all times where the jockey was such that his actions in continuing with the load once he lost sight of the jockey was a breach of the policy.
[47] USG submitted that Mr Palmer’s submission was based on an assumption that there was an obligation on the Commissioner to make a positive finding that Mr Palmer had engaged in a wilful and reckless breach of USG’s safety policy.
[48] We agree that this was not the requirement. The Commissioner was required to determine if there was a valid reason for the dismissal. If the reason put forward was one of conduct then, as the Commissioner recognised, she was required to determine based on the evidence before her if the conduct occurred.
[49] We agree with the submissions of Mr Palmer that, prior to any consideration of whether Mr Palmer had displayed the requisite contrition, it was necessary to determine if Mr Palmer had anything to be contrite about. That required a finding of whether he had knowingly continued to load the truck when the jockey was out of the safety zone; or whether once he lost sight of the jockey he was required to stop loading until he was sure the jockey was in the safety zone. If the Commissioner had made those findings, then we would have accepted that Mr Palmer’s lack of contrition would have been a relevant consideration either in deciding that there was a valid reason for the dismissal or, as another matter, she could have had regard to in deciding whether the termination was harsh, unjust or unreasonable.
[50] In relation to the finding that Mr Palmer did not acknowledge the seriousness of the incident, this required a finding about whether Mr Palmer was aware at the time of the incident that there had been a near miss.
[51] The only direct evidence before the Commissioner about this was from Mr Palmer as the other witnesses to the incident did not give evidence. The Commissioner characterised the incident as involving “both damage to property of at least 5 tonne and more importantly the potential for an employee to suffer serious injury if not fatality.” 12
[52] As the Commissioner made no finding that Mr Palmer was aware of the near miss, her conclusions that Mr Palmer’s reporting displayed nonchalance towards safety requirements and the reporting of them was not open to her.
[53] The evidence before the Commissioner was that Mr Palmer, when he was made aware that there had been a near miss when he was interviewed by Ms Vicki Neal, did accept that this was a serious incident. 13 The evidence established that Mr Palmer distinguished between the seriousness of the incident and his own responsibility for the incident.14 Mr Mike Gibson, who gave evidence for USG, accepted that at the time Mr Palmer was sorry that the incident happened.15
[54] To the extent that the Commissioner found that Mr Palmer did not acknowledge the seriousness of the incident, this finding was not available to her on the facts as he had in fact made such an acknowledgement. Prior to making a finding that he had not acknowledged his role in causing or contributing to this serious incident, the Commissioner was required to make findings about Mr Palmer’s conduct and this did not occur.
[55] UGS relied on a pattern of behaviour to establish there was a valid reason for the dismissal. However, the evidence before the Commissioner was that, in relation to the first incident, Mr Palmer had been counselled but received no formal warning. In relation to the safety glasses, UGS accepted this would not have been a valid reason for the dismissal.
[56] As such, the findings in relation to the incident on 18 December 2015 were of critical importance. As the relevant findings were not made, we are satisfied that the Commissioner erred in determining that there was a valid reason for the dismissal.
Ground 3
[57] Mr Palmer submitted that the Commissioner made a significant error of fact, in the absence of any evidence, namely, that Mr Palmer had a duty to take a proactive and rigorous approach to fully reporting safety incidents to his superiors.
[58] The Commissioner made a positive finding that Mr Palmer failed in his duty to take a proactive and rigorous approach in reporting this serious incident fully to his superiors immediately. 16
[59] Mr Palmer gave evidence about the incident and his reporting of the incident. He gave evidence that he advised his supervisor about the damage to the cornices and completed an incident report. He accepted that he did not complete the incident report immediately after the incident. The supervisor to whom he made the report did not give evidence.
[60] The Commissioner found that Mr Palmer was required to do more than leave a report about an incident of this significance on his supervisor’s desk. It is not clear, when referring to significance of the incident, whether the Commissioner is referring to the damage to the load or the near miss. Mr Palmer acknowledged that, had he known the seriousness of the incident, he would have dealt with it differently. 17
[61] To the extent that the Commissioner found that Mr Palmer did not properly report the near miss, the Commissioner erred as she made no findings that Mr Palmer was aware that there was a near miss. To the extent that she found he did not properly report the damage to the cornices, we are not satisfied the Commissioner erred.
Ground 4
[62] It was submitted the Commissioner failed to take into account a relevant fact, namely, the inconsistent application of the safety policy concerning the wearing of safety glasses.
[63] We are not satisfied that the evidence before the Commissioner established that USG had an inconsistent approach to the application of its safety glasses policy. We accept that USG supervisors who saw employees not wearing safety glasses raised the issue with the employee and directed him or her to wear the glasses. The evidence before the Commissioner was that Mr Palmer had been the beneficiary of this approach.
[64] However at paragraph [73] of the Decision, the Commissioner set the basis on which she rejected Mr Palmer’s submission that the policy had been applied inconsistently.
[65] For Mr Palmer to establish that there was inconsistent treatment, he needed to establish that employees who were in the same situation as him, namely, on a first and final warning for a safety breach, were treated differently to him. There was no such evidence before the Commissioner.
[66] The Commissioner did not err in finding that the policy was not applied inconsistently given Mr Palmer had been on a first and final warning and had received a number of requests to wear his safety glassed before the decision was taken to stand him down.
Ground 5
[67] It was submitted that the Commissioner asked herself the wrong question in that she asked whether the decision to dismiss was reasonably made as opposed to whether Mr Palmer’s conduct was sufficiently serious to support a finding of a valid reason.
[68] We do not accept the characterisation of the Commissioner’s Decision. To focus on the Commissioner’s assessment that USG’s decision was reasonable overlooks her findings about Mr Palmer’s attitude to his obligations to comply with site rules, directions and procedures. The Commissioner made those findings based on her own findings, not based on the views of USG.
[69] We are not satisfied that the Commissioner determined the matter inconsistently with the authorities.
Ground 6
[70] It was submitted that the Commissioner erred in failing to assess whether the application of the safety glasses policy was reasonable in the circumstances which Mr Palmer found himself in on 17 March 2016.
[71] We are not satisfied that the Commissioner erred in her assessment that Mr Palmer had breached the safety glasses policy. There was no issue that Mr Palmer was required to wear safety glasses and did not do so on more than one occasion. Mr Palmer did submit that it would have been unsafe for him to drive the forklift whilst wearing his safety glasses given the circumstances on that night. The Commissioner made no assessment of that submission. However, consistently with the evidence before her, she found that Mr Palmer had consistently breached this policy despite being given directions to wear his safety glasses. 18 We are satisfied she did not err in reaching this conclusion.
[72] We are satisfied that there is an appealable error in the House v The King sense in relation to grounds 1 and 2 relied upon by Mr Palmer. We are not required to identify an appealable error in every ground of appeal for there to be a quashing of a decision – quashing a decision is warranted upon an appeal bench identifying an error in accordance with House v The King. Having identified that the Commissioner, in our view, erred in exercising her discretion in accordance with House v The King by failing to have regard to a relevant consideration, namely, whether Mr Palmer breached the safety policies on 18 December 2015, we are satisfied that the appeal must be upheld.
Conclusion
[73] Permission to appeal is granted.
[74] The appeal is upheld.
[75] The Decision and Order of Commissioner Cikovic are quashed.
[76] Mr Palmer’s application for an unfair dismissal remedy is referred to Commissioner Cirkovic to hear and determine the matter.
VICE PRESIDENT
Appearances:
P. Boncardo for the Appellant.
R. Marshall, solicitor, for the Respondent.
Hearing details:
2017.
Melbourne:
6 March
3 [2017] FWC 147 at [60].
4 Ibid at [65].
5 Ibid at [70].
6 Ibid at [73].
7 Ibid at [78].
8 Fair Work Act 2009 (Cth) s 400).
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].
10 [2010] FWAFB 5343, [27].
11 [1936] 55 CLR 499.
12 [2017] FWC 147 [70].
13 AB 110 at PN882-885.
14 Ibid at PN886.
15 AB 313.
16 [2017] FWC 147 at [28].
17 AB 569
18 [2017] FWC 147 at [73].
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