| [2018] FWC 1415 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mingke Zhou
v
Quality Blow Moulders (Aust) P/L
(U2017/11931)
DEPUTY PRESIDENT GOOLEY |
MELBOURNE, 13 MARCH 2018 |
Application for an unfair dismissal remedy.
[1] Ms Mingke Zhou was employed by Quality Blow Moulders (Aust) P/L from 6 February 2017 until 1 November 2017. There is a dispute between the parties as to whether Ms Zhou was dismissed by Quality Blow or whether she resigned or abandoned her employment.
[2] Ms Zhou was employed as a packer. Ms Zhou said that her hand was increasingly becoming sore due to the nature of the work she was performing. 1 Ms Zhou went to the doctor on 27 October 2017 who told her that she cannot use her hand for lifting. She had a scan and was awaiting the results.
[3] On 30 October 2017, Ms Zhou attended work and told her foreman, Mr Pratik Patel that her hand hurt and that the doctor said she cannot do hard work right now. Mr Patel told her that she needed to get a doctor to prove it. 2 She was allocated work which she attempted to do but she stopped work at 10am because of the pain and went home.3
[4] On 31 October 2017, she returned to her doctor who told her she needed two week’s rest. She was told she could work with her left hand but could not use her right hand except for light duties. She was given a medical certificate for the two weeks. 4
[5] On 1 November 2017, she gave the certificate to Mr Patel. He said he would get her manager, Mr John Psaras to speak to her. In the meantime, she was given cleaning duties and then she worked on a machine. 5
[6] She was then called to a meeting with Mr Psaras and she said that he was very angry and spoke to her in English. She did not understand what was being said and she said Mr Psaras accused her of pretending not to understand what was being said. She said she did understand some of what was being said and that her manager said the doctor’s certificate was not proof of her injury because the doctor just wrote what she told him. 6
[7] Mr Psaras then called another Chinese speaker, Ms Ying Chen, to translate for him. This worker did not have very good English either. She told Ms Zhou that Mr Psaras said he did not have easy work for her to do and if she cannot work the normal machines she needed to go home. She told her that the manager said he could not give her two weeks sick leave. The manager said she had to change jobs and that she would not get paid to sleep. Ms Zhou said her hand was bandaged and she took off the bandage so he could see it. She said it was obviously swollen. 7
[8] Ms Chen told her that she could not understand what was being said and she should call her husband. Ms Zhou called her sister who told her that if they could not find work for her she should speak to her manager and get a note from him that he sent her home to rest. Ms Zhou said she told Ms Chen to tell her manager to let her go home and to write her a note. Mr Psaras then said that she should write to him. Ms Zhou said the manager opened the door and told her to go. She said he told her she could not speak to anyone and he followed her as she took her things. Her manager then went to the office and clocked her off.
[9] Ms Zhou summarised her understanding of what had happened which she spoke to a colleague in the lunchroom. She was asked why she was going home. She said “I could not handle heavy-duty work now due to pain. The manager was unhappy and said he could not find work for me here because I only worked in the factory for a short time. If I could not work according to the normal arrangements I need to go home.” 8
[10] When she arrived home there was an email with details about her final pay. At this time she realised she had been sacked. 9
[11] In cross-examination, Ms Zhou accepted that if Mr Psaras had referred to lighter duties before Ms Chen translated for her, she would not have understood it. 10 Ms Zhou said she was able to understand a little bit but did not fully understand what Mr Psaras was saying.11
[12] Ms Zhou denied that Ms Chen translated Mr Psaras saying that they had arranged for her to work the machine with no trimming. She said that when Ms Chen came in she had a conversation with Mr Psaras about how long Ms Chen had worked in the factory. She said that Ms Chen translated that Ms Zhou had only come to the factory not long ago and that there were no light duties for her. 12 She denied that Ms Chen translated “what you are doing is the easiest we can give to you.”13 Ms Zhou said she was told by Ms Chen that there were no light duties for her and that if she wanted to keep working they would allocate regular duties and if she can’t do it go home and change to another job.14 She said Ms Chen told her that if she can do regular duties do it till 3 o’clock then go home but if not go home now.15
[13] In response to the proposition that she did not roll up her arm to show them the cupping marks on her arm, she said she tried to show them. She said Mr Psaras said “if you want light duties, you can go home, sleep and then earn some money off that. That’s light duty.” 16
[14] In addition Ms Zhou said she told Mr Psaras in English that she really wanted this job. 17
[15] She did not agree that while she was on the phone Mr Psaras asked her what was happening and what she wanted to do and she denied saying that she will go home. 18
[16] She said that when she finished the phone call she went to see Ms Chen who was at her machine. She said she told her that the manager was trying to send her home. She asked Ms Chen to translate to Mr Psaras “that if he could write something for me so that [she] could go home.” She said Ms Chen did and then Mr Psaras said “he wants me to have something in writing to go home.” 19
[17] Mr Pratik Patel gave evidence that about one week before she left, Ms Zhou complained to him about her hand being sore and he put her on the PET light machine for 1-2 days. 20 He told her that if the pain didn’t go away she would need a doctor’s certificate.21
[18] On 1 November 2017, Ms Zhou gave him her doctor’s certificate and he told her that he was not authorised to give her light duties and she would need to talk to Mr Psaras. 22 He gave her the lightest duties he had. She completed those tasks and he then gave her work to do on the PET machine. As she could use her left hand, he said she could pack using that hand and he would get someone else to do the jobs she couldn’t do.23
[19] At about 9.30 am, Mr Psaras arrived and arranged to meet with Ms Zhou. Mr Patel told Mr Psaras that Ms Zhou was going OK but she was struggling with the packing. He had to get another girl to help her with that. He said she wasn’t packing quickly enough. 24
[20] Mr Patel said that when it became obvious that Ms Zhou could not understand what Mr Psaras was saying, they arranged for another worker to translate. Ms Zhou told Mr Psaras that her hand was swelling and she could not do the work. 25 Mr Psaras explained that “the duties she got was already the lightest duties – she said she’s not able to do that even. John was saying no other light duties leftover – this is a production plant, that is the lightest we can do, best we can offer, no more leftover duties more than that.”26 Mr Psaras asked her what she could do and she did not respond.27 Mr Psaras asked how the injury happened and what treatment she was getting. She said she didn’t know how it happened and she was having some traditional treatment.28
[21] Mr Patel said she did have a bandage on. 29 Mr Psaras asked her how long it was going to take for her to recover and she did not know.30 Mr Psaras told her “the work will be the same, we don’t think we can offer you any lighter duties…we cannot change job anymore, we could do light duties only for a couple of weeks – but longer than that, we can’t give permanent light duties because other staff have to make up the gap.”31
[22] Ms Zhou said she did not know how long she would need or if she even will be able to do full duties again because of the pain. Mr Psaras then said “maybe you need to find a suitable job with lighter duties, because his job is the same - worker has to pack the bottles.” 32
[23] She said she needed to speak to her husband. He said that Ms Zhou needed to tell him what light duties she can do and let him know by 3pm or by tomorrow. 33
[24] Mr Patel denied that Mr Psaras told Ms Zhou to go home immediately. 34 Ms Zhou went home and did not return the next day. He spoke to Mr Psaras who said she wasn’t coming back.35
[25] In cross-examination, Mr Patel said that Mr Psaras asked Ms Zhou if she had been to the doctor and asked her how long the treatment would last. 36
[26] Ms Chen was brought in to translate. Ms Chen 37 told Mr Psaras that her English was not good enough but he said it was OK.38 At the hearing, Ms Chen required the use of a translator.
[27] Ms Chen gave evidence that Mr Psaras said that Ms Zhou had only worked for them for 7.5 months. Mr Psaras said the work she had been allocated was the lightest work they had and if she can’t do it there were no other positions that they could offer her. 39 Mr Psaras then pointed to Ms Chen and noted that she had been there for 16 years and had no issues with her hand.40
[28] Ms Chen gave evidence that Mr Psaras said to Ms Zhou – “you only work here for 7 and a half months and you say you injure your hand – I’ve already given you the lightest position I can give you.” 41
[29] Ms Chen gave evidence that Mr Psaras told her that if she can work on the machine she had been allocated, she can stay and work until 3pm. 42 He also said “If you still find it hard then you may have to find another job.”43
[30] Ms Chen recalls Mr Psaras using the word sleep but she did not understand what he was saying. She said she thought he meant sleeping is easy so finding a sleepy job is an easy job. 44
[31] Ms Chen did not recall Ms Zhou talking about sick leave. 45 Ms Chen said she did not recall Ms Zhou showing them her arm with the cupping marks.46 Ms Chen said she told Ms Zhou if she wanted a better interpreter she should call her husband.47
[32] Ms Chen gave evidence that Ms Zhou told Ms Chen she could not reach her husband but had spoken to her sister. 48 Ms Zhou told Mr Psaras that she needed a letter from her employer because the company did not want her to work there. Mr Psaras said no, if she doesn’t want a job she should write a letter to him. At that point the meeting broke up.49
[33] In cross examination, Ms Chen agreed in relation to her understanding of English that “I understand only a little bit, small of the conversation that they had.” 50 She said when asked if the conversation had been translated clearly that “[she] was very confused as well. It’s not that [she] understood the conversation literally and there are certain words that I can’t put as well.”51 She subsequently said she “only [passed] on the message roughly.”
[34] In cross-examination, Ms Chen said that Mr Psaras said to Ms Zhou that “this is already light duties. If you can’t do that then you should find another job.” 52
[35] In cross-examination Ms Chen, when questioned about Mr Psaras’ use of the word ‘sleep’ said “so he said the word ‘sleep’, but literally I don’t know what that means. If it was in Chinese, we say, “We were discovered in sleep”. That’s what we say in Chinese so I assume that’s in there.” 53 She subsequently in re-examination said “because he said it before the sentence “I try to sleep”, he said that I find another easier job and so then followed by the sentence which has the word “sleep”. These two sentences – the sentence which has sleep word in it was followed after he just told Mingke to find another easier job.”54
[36] In cross-examination, Ms Chen did not recall mentioning to the person taking her statement that Ms Zhou did not mention sick leave. 55
[37] Ms Chen accepted that after the meeting she had a conversation with Ms Zhou at Ms Chen’s workstation and that Mr Psaras was present. 56 She said she interpreted Ms Zhou’s request for a letter to Mr Psaras who replied “if you can’t work it shouldn’t be me writing the letter, it should be you.”
[38] Mr Psaras said he first became aware of the issue on 1 November 2017. He was told by Mr Patel that Ms Zhou could not work because her hand was sore. 57 He said the injury had not been reported to him and there was nothing in the incident logbook for work injuries.58 In addition, he claimed that Mr Patel was unaware of the injury however this contrasted with Mr Patel’s evidence that Ms Zhou had told him of the injury and he has asked for a medical certificate.
[39] Mr Psaras said that Mr Patel told him that Ms Zhou wanted lighter duties than had been allocated to her. 59
[40] Mr Psaras told Ms Zhou that they didn’t have any lighter duties than the ones she had been given. Ms Zhou kept saying “my arm sore, my hand sore.” 60
[41] Mr Psaras asked Ms Zhou if she understood that all she needed to do was pick up the bottle and put it in the box. Ms Zhou kept saying that she didn’t understand so he arranged for another Mandarin speaker to translate. Mr Psaras said he was not yelling but he did raise his voice so that he could be heard over the noise of the factory. He recalled seeing Ms Zhou’s medical certificate and he told her they didn’t have any lighter duties than the ones given to her. Ms Zhou said she could not do these duties. He asked her what she could do and said they had nothing for her if she couldn’t use her hands. He denied making any comment about her doctor. Ms Zhou kept saying her hand was sore but she did not say it was a work injury.
[42] He again told her they didn’t have lighter duties and asked her what she could do. Ms Zhou asked for two weeks off and he said he couldn’t give her two weeks off because she did not have that much paid sick leave accrued. He said to her “not everyone is suitable for this work – maybe you need to find a job that is more suitable.” Mr Psaras did recall she had a bandage on her hand but he did not know about her treatment. He said he told her to let him know by 3.00 pm what she could do. She then walked out to make a phone call and after about five minutes he said to her “What’s happening? What do you want to do?” He said to her “I need to know what you’re doing, are you gonna go back to work?” To which she replied “I’ll go home.” He thought she was resigning. She then said he needed to give her a letter and he said “No, you need to give me a letter.” He denied escorting Ms Zhou out but he saw her leave. He then went and got her timecard and wrote “finished quit – can’t do this work” and had her payroll processed.
[43] In cross-examination, Mr Psaras denied being given a copy of the medical certificate. 61 He subsequently said that Ms Zhou showed him the certificate not Mr Patel.62 Mr Psaras said that Mr Patel told him that Ms Zhou had told him that she wanted lighter duties.63 When it was put to him that Ms Zhou never asked Mr Patel for lighter duties, Mr Psaras said that she asked him for lighter duties and that she had told Mr Patel as well.64
[44] It was put to Mr Psaras that Ms Chen’s English is not very good and he said that he uses her all the time to translate. He said if he spoke “a little bit slower and maybe repeat it another time, she understands what I need her to translate.” 65 He said she was able to let the other Chinese women know what tasks they need to perform.66 He accepted that both Ms Zhou and Ms Chen understand a little English but don’t understand all the words.67
[45] Mr Psaras denied saying anything about the doctor. 68 He agreed that he asked her how long her recovery would take.69
[46] Mr Psaras said that after 10-15 minutes, while Ms Zhou was on the phone, he asked her what was happening because the machines were getting full. He said Ms Zhou said “I’m going to go home. I finish. I go home.” 70 He said she then asked for a letter and he said “if you quit, if you leave, you have to give me a letter saying that you’re leaving.”71 When it was put to him that this was inconsistent with Ms Chen’s evidence he accepted, he may have approached Ms Chen and Ms Zhou at Ms Chen’s machine.72
[47] It was further put to Mr Psaras that both Ms Zhou and Ms Chen referred to him using the word sleep. He said he did not recall using the word 73 and then said it was totally not true.74
[48] Mr Psaras, in answer to my question, said he assumed she was quitting when she said she was going home because when other workers leave without notice they will just say “I’m going home” and never turn up again. 75
[49] Ms Marlene Varvaras gave evidence. She was present at the commencement of the meeting but not at the end. She said she did not pay much attention to what was being said. She was told Ms Zhou had resigned and processed her pay. 76
[50] I am not satisfied that Ms Zhou abandoned her employment. Ms Zhou attended work on 1 November 2017 and provided her employer with a medical certificate requesting light duties. Unlike the submissions of Quality Blow, Ms Zhou had previously advised Mr Patel of her injury and as advised by him she provided a medical certificate. 77 She was given light duties and was performing those duties. While Mr Patel thought she was struggling with the work Ms Zhou did not advise him that the work was causing her any difficulties. I do not accept Mr Psaras’ evidence that Ms Zhou told Mr Patel that she wanted lighter duties. This is inconsistent with Ms Zhou’s evidence and Mr Patel’s evidence.
[51] It is difficult to decipher the conversation between Mr Psaras and Ms Zhou because the conversation was “translated” by a worker who had limited English. Translating is a skill which requires proficiency in both languages. Evidence of the problems which arise from using someone who, on their own evidence, only understands a little English can be ascertained from the issues that arose from the use of the word ‘sleep’. I accept Ms Chen and Ms Zhou’s evidence that the word sleep was used by Mr Psaras. However it is not clear in what context it was used. Ms Chen’s evidence was clear that she did not understand the context in which Mr Psaras used the word. She translated it as best as she could. However, it is clear that Ms Zhou took offence at the word. 78 I cannot be satisfied that Ms Chen had the skills to translate what was said by either party. This clearly resulted in a significant misunderstanding by both Mr Psaras and Ms Zhou about what the other party was intending to convey. So much was properly conceded by Mr Barkatsas.79
[52] While I accept that Mr Psaras was trying to convey to Ms Zhou that the only light duties they had were the ones she had been given and that they had no lighter duties for her to perform, I am not satisfied that Ms Zhou understood what was being conveyed to her. I am satisfied that she thought that Mr Psaras was telling her that they had no light duties for her. In those circumstances she was unable to work. This is consistent with her conversation with Ms Chen after she spoke to her sister. She understood she was being sent home because there was no work for her to do and if so she wanted something in writing from her employer. I am not satisfied that it was made clear to Ms Zhou that she could continue working on the machine she had been working on before the meeting commenced. It would have been simple for Mr Psaras or Mr Patel to tell her to return to working on that machine but neither did because they thought she was telling them she couldn’t do the light duties they had allocated.
[53] I am not satisfied that by going home Ms Zhou abandoned her employment. Ms Zhou went home because she was restricted to light duties. She had a medical certificate to that effect. Having been told, as far as she understood, that there were no light duties for her to perform she left.
[54] I am not satisfied, as was submitted by Mr Barkatsas, that Ms Zhou left without advising Mr Patel or Mr Psaras. 80 I am satisfied that Mr Psaras knew she was going home so it cannot be said she left without her employer’s knowledge. That she did not return81 was not surprising as she received her final payslip which included her accrued holiday pay. Unsurprisingly she understood she had been dismissed.82
[55] Mr Psaras’ assumption that she was resigning her employment was wrong. Ms Zhou did not tell him that she had quit and did not provide the written notice Mr Psaras told her she was required to give. Mr Psaras’ action in immediately ending Ms Zhou’s employment and arranging for her final pay to be made up and sent to her was the action that terminated Ms Zhou’s employment.
[56] Mr Psaras did not understand that while Ms Zhou may not have had two weeks paid sick leave available, she was entitled to take unpaid sick leave if she was unable to perform her duties. I am satisfied that Mr Psaras acted hastily and without good cause. The submission of Quality Blow and the evidence of Mr Psaras, that given there were no lighter duties for her to perform, that Ms Zhou should consider other suitable roles i.e. another job, are misconceived and reflects the failure of Quality Blow’s understanding of Ms Zhou’s workplace rights. I am therefore satisfied that Ms Zhou’s employment was terminated at her employer’s initiative and therefore she was protected from unfair dismissal.
[57] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
[58] I am not satisfied that there was a valid reason for Ms Zhou’s dismissal. As I have set out above I am not satisfied that Ms Zhou abandoned her employment. I am not satisfied that she left her employment on 1 November 2017 without the consent of her employer. She left because she understood that there were no light duties for her to perform and she had a medical certificate that only permitted her to perform light duties. While she thought Mr Psaras had told her to leave and Mr Psaras said Ms Zhou told him she was going home, neither of the situations could be characterised as Ms Zhou leaving without advising Quality Blow.
[59] Ms Zhou was not notified of the reason for her dismissal. Mr Psaras dismissed Ms Zhou without notice.
[60] Ms Zhou was not given any opportunity to respond.
[61] There were no discussions related to the dismissal.
[62] The dismissal did not relate to unsatisfactory performance.
[63] This is a not a small business. While it was put that it was a family business it employs approximately 90 employees. 83 It does not have dedicated human resource management specialists or expertise in the business. While I am satisfied that this did have an impact on the procedures followed in effecting the dismissal, this does not absolve a business of its obligation to treat its workers fairly.
[64] The business employs workers whose first language is not English. Ms Zhou was an injured worker. She was unaware of what caused the injury. She did as she was instructed, namely provide a medical certificate to support her request for light duties. She did so and was called into a meeting to discuss this with Mr Psaras. In these circumstances, it was incumbent on Mr Psaras to ensure that Ms Zhou understood what was being said to her. The use of another worker who also had limited English to translate was both unfair to Ms Zhou and Ms Chen. It meant that Ms Zhou and Mr Psaras never properly understood each other.
[65] Mr Psaras took no other steps to ensure that Ms Zhou understood him. He could have given Ms Zhou a letter outlining the company’s position and allowed her to take it home so that her husband or someone else could explain it to her. He could have asked Ms Zhou to get her doctor to provide a more detailed report which set out what restrictions applied and how long he anticipated she would require light duties or be absent if light duties could not be provided. Mr Psaras took no action than terminating her employment.
[66] It was submitted that I should have regard to the fact that Ms Zhou did not contact her employer after her dismissal. I do not consider this to be relevant. Ms Zhou had been dismissed. Given her limited English it is not surprising or unreasonable that she did not contact her employer.
[67] It was submitted that Ms Zhou did not intend remaining in her role. This submission is inconsistent with Ms Zhou’s unchallenged evidence that she continued working despite the pain and that in the meeting she told Mr Psaras that she wanted this job.
[68] It was submitted that I should have regard to the fact that Ms Zhou refused to perform light duties. In light of my findings this submission must be rejected. It was submitted that because this was not a work related injury there was no obligation to provide light duties. While I express no view as to whether this was a work related injury. Ms Chen’s evidence suggests that Mr Psaras suspected that it might be. She gave evidence that he said to her “you have been working here for 16 years, no issues with [her] hand.” However, it is not necessary for me to determine this. While the company was not obliged to offer Ms Zhou light duties, it was not lawfully able to dismiss her because she was temporarily absent from work and could not do so for at most three months provided Ms Zhou complied with regulation 3.01 of the Fair Work Regulations 2009.
[69] I am satisfied the dismissal was unjust because Ms Zhou did not abandon her employment. There was no valid reason for the termination of her employment and she was not afforded procedural fairness. I am therefore satisfied that the termination of Ms Zhou’s employment was unfair.
[70] Ms Zhou is not seeking reinstatement of her employment and reinstatement is opposed by Quality Blow. I am therefore satisfied that reinstatement is inappropriate.
[71] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:
[72] There was no evidence that any order would impact on the viability of the employer’s employment.
[73] Ms Zhou had only been employed for a short period of time. This neither impacts positively or negatively on the amount of compensation to be ordered.
[74] Had Ms Zhou not been dismissed at this time, she would have remained in employment albeit on leave without pay because Quality Blow was not obliged to offer her light duties. While it may have offered her light duties for a couple of weeks, I am satisfied that this offer would not have been ongoing. On the evidence before the Commission, she had not recovered from her injury at the date of the hearing. Given that there was no evidence that this was a work related injury, Quality Blow did not have an obligation to offer Ms Zhou modified duties. Further, while the Fair Work Act 2009 provides that an employer must not terminate an employee because the employee is temporarily absent from work in relation to unpaid leave this protection expires after three months. After that time, Quality Blow could have terminated Ms Zhou’s employment lawfully because it formed the view that she could not, because of her medical condition, perform the inherent requirements of the job.
[75] Ms Zhou earned $18.81 per hour for 38 per hours per week. Ms Zhou would have earned $1,429.56 in the two weeks she would have been on light duties. Ms Zhou would then have been entitled to be paid her remaining sick leave of 16.09 hours which was $302.65. Upon termination she would also have been entitled to a week’s notice of termination being $714.78. This totals $2,446.99.
[76] Due to her injury, Ms Zhou has not taken any steps to mitigate her loss. This would not cause me to reduce the amount of compensation.
[77] Ms Zhou has not received any income.
[78] There is no evidence that Ms Zhou would earn any income.
[79] Ms Zhou had not worked for Quality Blow for very long. I note that Ms Zhou has limited English and she remains injured which makes her prospect of future employment limited.
[80] Quality Blow submitted that any amount of compensation must be reduced because of Ms Zhou’s misconduct. Because I have not found that Ms Zhou’s conduct was misconduct, this submission must be rejected.
[81] S.392(4) of the Act prohibits the Commission for including any compensation for the shock, duress or humiliation or other analogous hurt caused to Ms Zhou by the manner of her dismissal and no such compensation has been included in this calculation.
[82] I have therefore determined that Quality Blow pay Ms Zhou $2,446.99 less applicable tax plus $232.46 superannuation within 14 days of this decision. An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
B. Douglas for the Applicant.
N. Barkatsas for the Respondent.
Hearing details:
2018.
Melbourne:
15 February 2018.
<PR601025>
1 Exhibit A1
2 Ibid
3 Ibid
4 Ibid
5 Ibid
6 Ibid
7 Ibid
8 Ibid
9 Ibid
10 Transcript PN 148-152
11 Ibid PN 154
12 Ibid PN 166
13 Ibid PN 167
14 Ibid PN 177
15 Ibid PN 179
16 Ibid PN 184
17 Ibid PN 184-186
18 Ibid PN 194-195
19 Ibid PN 196
20 Exhibit R3 at [4]
21 Ibid at [5]
22 Ibid at [7]
23 Ibid at [8]-[12]
24 Ibid at [19]-[20]
25 Ibid at [27]
26 Ibid at [28] and [29]
27 Ibid at [30]-[31]
28 Ibid at [32]
29 Ibid at [33]
30 Ibid at [34]-[35]
31 Ibid at [36]
32 Ibid at [37]-[38]
33 Ibid at [41]
34 Ibid at [42]
35 Ibid at [46]-[52]
36 Transcript PN 396
37 Exhibit R1 at [8]
38 Ibid
39 Ibid at [14]
40 Ibid at [15]
41 Ibid at [16]
42 Ibid at [18]
43 Ibid at [19] In her witness statement she used the term an easy job but she said this was incorrect.
44 Ibid at [20]
45 Ibid at [21]
46 Ibid at [22]
47 Ibid at [23]
48 Ibid at [29]
49 Ibid at [31]-[32]
50 Transcript PN 257
51 Ibid PN 264
52 Ibid PN 265
53 Ibid PN 266
54 Ibid PN 291
55 See Exhibit R1 at [21]
56 Transcript PN 277-279
57 Exhibit R4 at [33]
58 Ibid at [33]
59 Ibid at [35]
60 Ibid at [39]-[40]
61 Transcript PN 458
62 Ibid PN 502
63 Ibid PN 474
64 Ibid PN 478
65 Ibid PN 489-490
66 Ibid PN 491
67 Ibid PN 494-496
68 Ibid PN 504, 506
69 Ibid PN 518
70 Ibid PN 554
71 Ibid
72 Ibid PN 570-571
73 Ibid PN 555
74 Ibid PN 560
75 Ibid PN 602
76 Exhibit R2 at [13] and [18]
77 Submissions of the Respondent at page 2 at [6]
78 Exhibit A1
79 Transcript PN 684
80 Submissions of the Respondent at page 1
81 Ibid
82 Ibid at page 4 at [28]
83 Ibid at page 2 at [2]
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