[2018] FWCFB 1305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Andrew Demosthenous
v
Jemena Asset Management Pty Ltd
(C2018/190)


JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT SAMS COMMISSIONER HARPER-GREENWELL	MELBOURNE, 8 MARCH 2018

Appeal against decision [[2017] FWC 6945] and Order PR599005 of Deputy President Millhouse at Melbourne on 22 December 2017 in matter number U2017/7518 – permission to appeal refused.

1. Introduction

[1] Mr Andrew Demosthenous (the Appellant) was dismissed from his employment with Jemena Asset Management Pty Ltd (Jemena; the Respondent) on 23 June 2017 and subsequently lodged an application for an unfair dismissal remedy.

[2] The Appellant’s application was heard by Deputy President Millhouse on 17 and 18 October 2017 and a decision was issued on 22 December 2017. 1 In the Decision the Deputy President determined that the Appellant’s dismissal was not unfair and dismissed the application. The Appellant has applied for permission to appeal that decision.

[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the FW Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

2. The Decision

[4] The Decision sets out the background to the proceeding (at [8]-[34]) and the relevant statutory provisions (at [35]-[37]), before turning to deal with whether the dismissal was harsh, unjust or unreasonable.

[5] In considering whether the Appellant’s dismissal was ‘harsh, unjust or unreasonable’, the Deputy President took into account the matters set out at s.387(a)-(h) as follows:

• There was a valid reason for the dismissal of the Appellant ‘based on his consistent poor performance, which he failed to remedy’ (see [41]-[75]);

• As to whether the Appellant was notified of the reason for the dismissal (s.387(b)), the Deputy President found that there was no dispute that he was notified of Jemena’s reasons for dismissing him at the meeting on 23 June 2017 (see [77]);

• As to whether the Appellant was given an opportunity to respond (s.387(c)), the Deputy President held (at [79]-[80]):

‘[79] The Applicant does not contend that he was denied an opportunity to respond to the reason for his dismissal. The evidence in this matter establishes that there was a long history of meetings and performance counselling. The Applicant was invited to a meeting on 23 June 2017 to formally respond to Mr Hemsley and Ms Salters’ ongoing concerns with his performance. At this meeting, the Applicant provided a response causing Mr Hemsley and Ms Salter to adjourn the meeting twice to consider the matters he raised before a decision on dismissal was made.

[80] I am satisfied that the Applicant was given an opportunity to respond to the reason for the dismissal…’

• As to whether there was any unreasonable refusal by Jemena to allow the Appellant to have a support person present (s.387(d)), the Deputy President held ‘there is no dispute that the Applicant attended the meeting on 23 June 2017 with Mr Smallbone as his support person to discuss the ongoing performance issues that founded the reason for his dismissal’ (see [82]);

• As to whether the Appellant had been warned (s.387(e)), the Deputy President noted that it was not in dispute that the Appellant received two written warnings regarding his performance prior to his dismissal (see [84]-[91]);

• As to the size of the Respondent’s business and the absence of dedicated human resource management specialists of expertise (s.387(f) and (g)), the Deputy President considered these matters to be a neutral consideration (see [92]-[93]);

• The Deputy President dealt with a range of other relevant matters (s.387(h)) (at [95]-[127]), including the Appellant’s personal/health issues and held at [127]:

‘These matters are to be balanced against the genuine, lengthy and thorough performance improvement process and the extensive opportunities afforded to the Applicant to meet the expectations of his employer and thereby secure his employment. The Applicant had a history of performance based warnings. Jemena’s response must be viewed against the entire backdrop of the Applicant’s performance history, and not in isolation of it. When viewed in such a manner, I do not consider that dismissal for the Applicant’s sustained performance deficiencies was a disproportionate response, even taking into account the Applicant’s period of service, his age, his employment record and his potential economic situation. These additional matters do not weigh so heavily in favour of the Applicant as to render the dismissal in the circumstances, harsh, unjust or unreasonable.’

[6] The Deputy President then concluded that the dismissal was not unfair and dismissed the Appellant’s application.

3. The Appeal

[7] The Appellant advances some 30 grounds of appeal in his Notice of Appeal and four additional grounds in his outline of submissions (see Attachment A). It is convenient to group the grounds advanced into six broad categories.

Category 1: Grounds 1,2,4,6, 9-14 and 16-28

[8] The Appellant submits that a number of the factual findings which underpin the Commissioner’s conclusions were wrong. We note that in determining various factual issues the Deputy President was called on to reconcile the conflicts between the evidence of the Appellant and that of the various Respondent witnesses. These grounds of appeal have been grouped together because they largely repeat arguments advanced by the Appellant in the proceedings at first instance. None of the grounds identifies any error in the Deputy President’s Decision; they simply seek a different result.

[9] Before turning to deal with each of these matters we note the following observation in the joint reasons in Fox v Percy, 3 in a passage which has been applied since,4 about the general approach to challenging factual findings on appeal:

‘[23] [An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. 5 These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.’6

[10] Grounds 1, 2, 13 and 27 contend that the Appellant informed management (at various performance related meetings) that he ‘felt stressed, getting frequent headaches and my sugar levels were going through the roof’. The Appellant contends that management did nothing in response. The same contention is raised in paragraph [4] of the Appellant’s Submissions dated 12 September 2017, paragraphs [39]-[40] of his Witness Statement dated 4 September 2017 and paragraphs [1], [2], [5], [9], [10] and [22] of his Closing Statement dated 2 November 2017. 7 The Deputy President considered these matters and determined as follows:

‘[118] Taking into account all of the above matters, I do not accept the Applicant’s submission that Jemena should have recognised that he was suffering from personal/health issues and either directed him to take leave or postponed the PIP process. I have formed this view for the following reasons:

(a) The Applicant was best placed to inform Jemena about his personal/health issues during the employment. For his own reasons, the Applicant chose not to share this information with Jemena in any detail.

(b) The Applicant did not say to Mr Hemsley or Ms Salter that his work performance was being affected by his personal/health issues during the performance management process, despite the numerous meetings held with him and the opportunities afforded to him to do so.

(c) The Applicant was encouraged to seek medical assistance, if necessary, in the warning letters issued to him. It was also suggested to the Applicant by Mr Hemsley that he take a period of leave.

(d) On his own evidence, the Applicant’s only suggested remedy was to take a period of leave after he had completed the tasks in the PIPs.

(e) During the PIPs, the Applicant did not apply for a period of annual leave. He had 8.7 weeks of accrued annual leave as at the termination date.

(f) During 2017, on his own evidence, the Applicant took only 5.5 individual days of personal leave. He provided a medical certificate in respect of 3.5 of them. However, the Applicant had 19 weeks of accrued sick leave at the termination date. It was clearly open to the Applicant to take time off if he felt that he needed to, but he chose not to exercise this right. This was in the Applicant’s own hands to manage.

(g) The Applicant failed to complete tasks set out in both the September 2015 Spreadsheet and PIP 1, both of which pre-date any investigation and treatment of the Helicobacter Pylori stomach virus.

(h) In relation to PIP 2 and PIP 3, the evidence earlier referred to confirms that the Applicant was up-to-date with the confined number of day-to-day tasks that Mr Hemsley had issued to him in addition to the tasks in the PIP. Furthermore, the Applicant was performing design work, even though it was not a requirement of his role following the restructure. The Applicant therefore was seemingly quite selective about the tasks that he could (or wanted to) perform and those that he could not.

(i) Irrespective of the health issues he says he was confronting, the Applicant contributed to each of the target dates for the completion of each task in the PIPs.

(j) Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant did not engage in this process.

[119] I am satisfied that Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant was unwilling to engage in this process. In all of the circumstances, I do not accept the Applicant’s submission that his managers should have somehow recognised that he was suffering from personal/health issues and required that he take leave or taken some other action to assist him, such as postponing the PIPs. It follows that the Applicant’s personal/health issues, including the fact that he had the Helicobacter Pylori stomach virus during some of this period, does not render the termination of the Applicant’s employment harsh, unjust or unreasonable when assessed against all of the circumstances of this case, together with my finding that there was both a valid reason for the dismissal and a procedurally fair process undertaken.’

[11] Ground 4 raises the same contention as paragraph [38] of the Appellant’s Witness Statement. 8 This ground contends that the Melton Highway Project was substantially completed: ‘design was completed by the Applicant and was at 95% ready for issue to construction. This would have been done within 1 additional days’ work.’ The Deputy President considered this matter at paragraphs [48] and [51] of the Decision:

‘[48] The Applicant sought to shift responsibility for the non-completion of the Melton Highway project task to his managers. For the reasons below, I do not accept that the Applicant’s failure to coordinate the completion of this work can be attributed to the management skills of either Mr Hemsley or Mr Alchin, as alleged.

[51] Further, the Applicant submits that he did not complete the Melton Highway project work because he was still required to perform design work. This was contradicted by the evidence of Mr Hemsley, who said that design work was not part of the Applicant’s role following the restructure; that there was a separate design team within Jemena; and despite Mr Hemsley’s direction, the Applicant continued to concentrate on the task of drafting when he was not required to. The Applicant conceded under cross examination that he continued to perform design work and accordingly, I accept Mr Hemsley’s evidence that the Applicant did not follow his instructions to “throw the designs out to the design group” and focus on closing out the Melton Highway project task. I do not accept that the Applicant’s failure to complete the Melton Highway project work can be attributed to any requirement imposed by Jemena on him to perform design work, as alleged.’

[12] Grounds 6 and 22 raise a similar contention to that in paragraph [2] of the Appellant’s Closing Statement where he says that Mr Alchin ‘did not consider all the project priorities, and other day-to-day tasks’. 9 The Deputy President considered this matter at paragraphs [48], [59], [61]-[62] of the Decision:

[59] I consider that it was within the Applicant’s skill and experience to complete the close out tasks, notwithstanding his frustration that there was no company-wide instruction manual and that some of the projects were so dated that SAP had been updated in the interim. On his own evidence, the Applicant was trained in these tasks but simply chose not to perform them, including because it would be too time intensive. Accordingly, I do not accept that these matters affected the Applicant’s capacity to perform close out work, as alleged. I have formed this view notwithstanding that the task required the performance of further steps under the new version of SAP.

[61] I am not persuaded that an estimate of the number of hours’ work required for each task in the PIPs would have further assisted the Applicant, in circumstances where he helped set the target date for the overall completion of each task. The Applicant’s own evidence of his contribution towards these timeframes indicates that he clearly understood the tasks and allocated an achievable deadline.

[62] Given the above, I do not consider that the PIPs were compromised by any failure by Mr Hemsley to further assign a priority or an estimate of time to the tasks contained within them. Accordingly, I do not accept that these matters affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIP more generally), as alleged.

[13] Grounds 9, 10, 11, 18, 19, 20 and 21 are critical of the actions of Jemena management in, among other things, setting target hours without a detailed assessment of the work and failing to provide a ‘close-out process’. Similar issues are raised at paragraphs [34]-[35] of the Appellant’s Witness Statement and paragraphs [2] and [7] of his Closing Submissions. 10 The Deputy President considered these matters at paragraphs [48] and [51]-[62] of the Decision:

[52] The second area of concern in which Jemena identified performance shortcomings related to SAP “close out” work. Mr Hemsley said that this was a standard transaction process to close projects. He said the task was important to Jemena to ensure its records properly reflected the volume of work, resources needs, the financial status of each project and any ongoing work to be done.

[53] Various project close out tasks were listed in the September 2015 Spreadsheet, specifying that the Applicant should “set 4 hours aside every second week and do bulk close out.” When asked under cross examination if he had set aside four hours every second week for that task, the Applicant said that he had not, that it was “an extremely poor suggestion” and that project close out work was “very low in the priority list.”

[54] I accept Mr Hemsley’s evidence, given his project management role, that project close out work was important to Jemena, including to ensure that an accurate summary of all company assets are contained in SAP for financial accounting purposes. The Applicant conceded that he did not have a full understanding of the importance to Jemena in closing out projects. Given this, I do not accept his submission that the work was of a low priority.

[55] The Applicant raised a number of issues which he said affected his capacity to perform project close out work as directed. Where they raise material considerations, I have addressed them below.

[56] The Applicant contends that the process for closing out projects was not clearly defined. He also said that because many of the relevant projects were in an earlier version of SAP, the process for close out was more complex and that this affected his capacity to complete them.

[57] The Applicant was critical of the fact that he had to write his own instructions for the close out process. However, the Applicant said that he had prepared his own “step by step processes,” acknowledged that other members of the team were “getting by” without a SAP manual and agreed that he had attended a specific “project close out workshop,” a training program which Jemena provided to employees. He referred to the task as a “monkey task” that he had the ability to learn. Mr Hemsley said that the Applicant was trained in the process and had demonstrated that he could do it.

[58] In relation to the Applicant’s complaint that some of the project close out tasks were so dated that SAP had been updated in the interim, Mr Hemsley said that the close out process was the same but for the added steps relating to budget constraints and electronic asset settlement, and the Applicant was trained in those extra steps. The Applicant conceded that Mr Hemsley directed him to prioritise the closing of older, high value projects to clear the backlog, but he decided to exclude those more complex closing tasks from his priority list because he realised they were going to be “too time-intensive.”

[60] The Applicant contends that Mr Hemsley did not prioritise each of the tasks in the three PIPs, or provide an estimate of the number of hours’ work required for each of them. However, the evidence shows that the PIPs clearly set out the activities that the Applicant was to prioritise, at Mr Hemsley’s direction. Each task specified an agreed target date for completion and the Applicant conceded that he understood that he was expected to meet the key dates established in the PIPs. Notwithstanding this, the Applicant failed to complete the majority of the identified close out tasks at all (irrespective of priority).

[14] Ground 12 contends that Mr Hemsley knew the Appellant was doing design work on some projects (including the Melton Highway Project) but ‘did nothing to direct me otherwise’. The same contention is raised in paragraph [17] of the Appellant’s Closing Statement. 11 The Deputy President considered this matter at paragraph [51] of the Decision:

‘[51] …the Applicant submits that he did not complete the Melton Highway project work because he was still required to perform design work. This was contradicted by the evidence of Mr Hemsley, who said that design work was not part of the Applicant’s role following the restructure; that there was a separate design team within Jemena; and despite Mr Hemsley’s direction, the Applicant continued to concentrate on the task of drafting when he was not required to. The Applicant conceded under cross examination that he continued to perform design work and accordingly, I accept Mr Hemsley’s evidence that the Applicant did not follow his instructions to “throw the designs out to the design group” and focus on closing out the Melton Highway project task. I do not accept that the Applicant’s failure to complete the Melton Highway project work can be attributed to any requirement imposed by Jemena on him to perform design work, as alleged.’

[15] Ground 14 contends that the ‘project close-outs are not a clearly defined step by step function’. A similar contention is raised in paragraphs [32] and [35]-[36] of the Appellant’s Witness Statement. 12 The Deputy President considered this matter at paragraph [59] of the Decision, which is set out above.

[16] Ground 16 raises similar issues to those advanced under earlier grounds, namely: ‘the steps in closing older projects were more complex and had many issues which caused me significant wasted time and frustration as there was never a clearly defined process. In hind-sight Mr Hemsley’s direction to tackle the older projects first was the wrong decision. It would have been much more efficient to tackle the newer projects first’. The same contention is raised in paragraphs [32] and [35]-[36] of the Appellant’s Witness Statement. 13 The Deputy President considered this matter at paragraph [62] of the Decision:

‘[62] …I do not consider that the PIPs were compromised by any failure by Mr Hemsley to further assign a priority or an estimate of time to the tasks contained within them. Accordingly, I do not accept that these matters affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIP more generally), as alleged.’

[17] Grounds 17 and 23 repeat the contentions put in earlier grounds – that the Appellant was stressed and labouring under various health issues throughout the performance management process. The same contention is raised in paragraph [1] of the Appellant’s Submissions in the proceedings at first instance, paragraph [39] of his Witness Statement, and paragraph [5] of his Closing Statement. 14 The Deputy President considered these matters at paragraphs [118]-[120] of the Decision, set out earlier at [10] above.

[18] Ground 24 challenges the Deputy President’s finding that the Appellant was not ‘a target’. The same contention is raised in paragraph [13] of the Appellant’s Witness Statement and paragraphs [30] and [32] of his Closing Statement. 15 The Deputy President considered this matter at paragraphs [63]-[69] of the Decision and concluded, at [68]:

‘…I do not accept the Applicant’s submission that Mr Hemsley’s focus was on the removing the Applicant from the company, or that this matter affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIPs more generally), as alleged.’

[19] Ground 25 traverses similar issues to those raised in earlier grounds regarding the deficiencies in the process followed by Jemena and the Appellant’s appointment to the new position: ‘any competent manager would not have appointed me to the new role under the circumstances. Jemena has a process for employees who become displaced as a result of not being successful in obtaining a new position under the restructure’. This ground raises similar issues to those raised in paragraph [2] of the Appellant’s Submissions at first instance, paragraph [33] of his Witness Statement and paragraphs [27] and [30] of his Closing Statement. 16 The Deputy President considered this matter at paragraphs [12], [48], [52], [55], [59] and [62] of the Decision:

‘[12] During PIP 1, on 2 August 2016, the Applicant was advised of a planned restructure of Jemena’s Electricity Construction division affecting his role. The Applicant applied for a Project Coordinator position on 19 August 2016 and was redeployed to this role with effect on 7 November 2016…

[48] The Applicant sought to shift responsibility for the non-completion of the Melton Highway project task to his managers. For the reasons below, I do not accept that the Applicant’s failure to coordinate the completion of this work can be attributed to the management skills of either Mr Hemsley or Mr Alchin, as alleged…

[55] The Applicant raised a number of issues which he said affected his capacity to perform project close out work as directed. Where they raise material considerations, I have addressed them below…

[20] Ground 26 is critical of Mr Hemsley’s management expertise and contends that he did not have ‘a clear concept of hours to achieve each task’ in the PIPs. The same contention is raised in paragraph [34] of the Appellant’s Witness Statement and paragraph [7] of his Closing Statement. 17 The Deputy President considered this matter in the passages from the Decision set out above at [13].

[21] Ground 28 contends that Jemena was motivated by a desire to avoid making the Appellant redundant and paying him redundancy pay. The same contention is raised in paragraph [2] of the Appellant’s Submissions at first instance and paragraph [48] of his Witness Statement. 18 The Deputy President considered this matter at paragraphs [67]-[68] and [121]-[122] of the Decision:

‘[67]…Mr Hemsley’s conduct in ensuring the Applicant remained up to date with existing work practices leads me to the conclusion that Mr Hemsley was considering the Applicant’s ongoing employment with Jemena in the future, rather than setting the Applicant up for failure, as alleged.

[68] The above matters are at odds with the Applicant’s submission that Mr Hemsley did “little to assist” him to achieve the close out tasks. In the circumstances, I do not accept the Applicant’s submission that Mr Hemsley’s focus was on the removing the Applicant from the company, or that this matter affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIPs more generally), as alleged.

[121] The Applicant applied for the Project Coordinator position as part of the restructure in late 2016. Mr Hemsley said that the Applicant had the necessary skills to fill the position and was redeployed to it. However, the Applicant contended that Jemena redeployed him to avoid a substantial redundancy payment. He said that “management had already decided I wasn’t suitable for the position and their intention was to remove me from the company with least possible payment.”

[122] There is no evidence before me that would lead me to conclude that Jemena’s intention was to “remove” the Applicant from the company in the manner alleged. In any event, I do not consider this to be a matter that is relevant to my determination as to whether the dismissal on 23 June 2017, nearly eight months after the restructure, was harsh, unjust or unreasonable.’

[22] None of the grounds in Category 1 disclose an arguable case of error. They amount to little more than an attempt to reargue contentions put, considered and dealt with in the proceedings at first instance.

Category 2: Grounds 3,5,7,8 and 15

[23] Each of these grounds alleges that the Deputy President made an error of fact. Before turning to the specific grounds it is important to note that in unfair dismissal matters an appeal on a question of fact can only be made on the ground that the decision involved ‘a significant error of fact’ (see s.400(2)). The passage from Fox v Percy referred to earlier (at [9]) is also apposite. For the reasons which follow we are not persuaded that the matters identified by the Appellant constitute significant errors of fact, (to the extent that they constituted errors of fact at all).

[24] Ground 3 contends that the Deputy President erred in finding ‘no progress had been made on the other 19 projects’. The relevant ‘finding’ is at [32] of the Decision:

‘[32] A performance review meeting was held later on 23 June 2017. The Applicant attended with a support person, Mr Smallbone. Ms Salter and Mr Hemsley attended on behalf of Jemena. Mr Hemsley said that the Applicant had closed out two projects but had made no progress at all on the other 19 listed projects for close out (all of which had been included in PIP 2). In addition, Mr Hemsley noted that the Melton Highway project work remained incomplete “despite me telling the Applicant that he needed to concentrate on those priority tasks.” It is not in dispute that during this meeting, a conversation to the following effect took place:

“Mr Hemsley: I have given you direction to focus on close outs. The PIP outlines what you have needed to focus on or the past months.

Applicant: I rushed the list of the schedule. I am not operating as I should be. If I had better foresight, I didn’t realise I would be held to the dates in the PIP. I need to lock myself in a room. In hindsight I should have done this. I don’t want to be a burden, want the opportunity to finish them.

Mr Hemsley: We agree that you have completed your day to day responsibilities like month end reporting and CATS time writing.

Applicant: I looked at the projects, made a request or a field assessment. I know you have been holding back other work.

Mr Hemsley: You have not met the requirements of the PIP. My concern is when you get through this list, can you meet the requirements of your role?

Applicant: It will be a completely different environment. I want the opportunity to tackle the projects and work at Jemena. The backlog is a perception of priorities. I can commit to a day a week to get through the backlog.

Mr Hemsley: You should have allocated time and used your schedule.

Mr Smallbone: There will be a disruption to the business to replace Andrew. You have acknowledgement and commitment that he has progressed. If he can be given the opportunity.

Applicant: I have mentioned my health concerns. I am not operating at full capacity.

Ms Salter: We have offered you on site EAP which you declined. In your warning letters we encourage you to seek assistance for your medical concerns with a medical professional. You have not provided us with any medical information that supports your claims. You have only provided medical certificates for absences.

Applicant: I should have focussed on the low hanging fruit.”’ [Emphasis added]

[25] Contrary to the Appellant’s contention, the Deputy President did not make a finding in the terms alleged. As is clear from the above passage, the Deputy President simply recorded what Mr Hemsley said to the Appellant – consistent with Mr Hemsley’s witness statement 19 – and makes no finding regarding the progress (or lack thereof) in respect of ‘the other 19 listed projects for close out’. This ground of appeal is misconceived.

[26] Grounds 5 and 7 also concern paragraph [32] of the Decision. In relation to ground 5, the Appellant says that while design work on the Melton Highway Project was not part of his work after the restructure, he did that work because he had detailed knowledge of the project. Contrary to the Appellant’s contention, the Deputy President does not consider or make any finding regarding this issue at paragraph [32] of the Decision. We assume that ground 5 is intended to be a criticism of the findings in paragraph [51] of the Decision:

‘[51] Further, the Applicant submits that he did n

ot complete the Melton Highway project work because he was still required to perform design work. This was contradicted by the evidence of Mr Hemsley, who said that design work was not part of the Applicant’s role following the restructure; that there was a separate design team within Jemena; and despite Mr Hemsley’s direction, the Applicant continued to concentrate on the task of drafting when he was not required to. The Applicant conceded under cross examination that he continued to perform design work and accordingly, I accept Mr Hemsley’s evidence that the Applicant did not follow his instructions to “throw the designs out to the design group” and focus on closing out the Melton Highway project task. I do not accept that the Applicant’s failure to complete the Melton Highway project work can be attributed to any requirement imposed by Jemena on him to perform design work, as alleged.’

[27] The Appellant’s assertion as to his duties and why he chose to perform the design work does not provide a basis for undermining the finding in paragraph [51] that Mr Hemsley directed the Appellant not to perform design work, and the Appellant continued to do so. Further in relation to ground 5, the Appellant’s assertion that ‘low voltage design was relatively complex' was not a matter in evidence before the Deputy President; was not a matter considered by the Deputy President in the Decision; and is not relevant to any of her findings in the Decision.

[28] At Ground 7, the Appellant denies saying ‘I should have focussed on the low hanging fruit’. We note that no such denial was made during the proceedings at first instance and that the Deputy President accurately records Mr Hemsley’s recollection of the conversation that took place during the performance review meeting on 23 June 2017. As the Deputy President correctly observes, these issues were not in dispute in the proceedings before her. 20 In any event, the words attributed to the Appellant had no material impact on the Decision. The Deputy President did not base any of her findings on the Appellant using the words which are the subject of his ground.

[29] Ground 8 contends that the Deputy President erred in finding that the Melton Highway project work was outstanding for eight years at the time he was dismissed. The relevant ‘finding’ is at [47] of the Decision:

‘[47] The first area of concern in which Jemena identified performance shortcomings related to customer project work. It is not in dispute that the Melton Highway project work was one of many outstanding customer project work activities or that a failure to co-ordinate the work had the potential to adversely affect Jemena customers. However, the Applicant did not accept any responsibility for its non-completion. During the course of cross-examination, the following exchange took place:

“Mr O’Neill: Can you say that having a high voltage cable to these customers was a low priority job?

Applicant: No, it wasn’t a low priority job.

Mr O’Neill: And it was a job that had been outstanding for, by the time you were dismissed, eight years, correct?

Applicant: Well, if Mr Hemsley believed it was such a high priority level he should have said, “Andrew, stop working on these other projects. Just do this one. Get it out of the way because there’s imminent risk of loss of supply to the customer.”

Mr O’Neill: Well, I’m not asking you about Mr Hemsley’s prioritisation. You say that you prioritise your own work, correct?

Applicant: Mr Hemsley is ultimately responsible for the work that I do.

Mr O’Neill: You say that you prioritised your own work?

Applicant: Generally we do.

Mr O’Neill: Yes. And this was at least a medium, if not a high priority job, wasn’t it, Mr Demosthenous?

Applicant: Correct.

Mr O’Neill: And you didn’t get it done in two years?

Applicant: Correct.

Mr O’Neill: On one view you didn’t get it done in seven years?

Applicant: Well, it wasn’t done by the stipulated date, yes.

Mr O’Neill: It had the same priority essentially back in 2010, didn’t it?

Applicant: It did, but both managers were aware of the situation and I think it unreasonable that I take full responsibility for prioritising work when they’re aware of it. It reflects much on their own technical ability, their own management ability to manage projects.

Mr O’Neill: Well, that may be so, but do you say that it was acceptable terms of your performance that this job remained not done for seven years?

Applicant: It’s really not acceptable but it comes down to workload for everybody, how the section is run and managed.”’ [Emphasis added]

[30] Contrary to the Appellant’s contention, the Deputy President did not make a finding in the terms alleged. The reference to project work outstanding for eight years was put to the Appellant during the course of his cross examination by the Respondent’s counsel. There was no finding to that effect by the Deputy President. The relevant finding in respect of this part of the Appellant’s cross examination appears at [48] of the Decision:

[31] Further, the Appellant did not deny that the Melton Highway Project had been outstanding for 8 years during the hearing at first instance. Even if it had been outstanding for only 4 years, as the Appellant now alleges, such an ‘error’ would have no material impact on the outcome of the Decision because no material finding in the Decision rests on whether the project was outstanding for 4 years or 8 years, only that it remained outstanding at the time the Appellant was dismissed.

[32] Ground 15 is in the following terms:

‘There were 3 x SAP Close-out training workshops. I was unable to attend the first one due to being on sick leave. I attended the 2nd session. The 3rd session was scheduled on the morning of my dismissal and clashed with the final PIP Review of 23rd June 2017. Jemena did not give me the same opportunity to be trained as others.’

[33] This ground is said to relate to paragraph [57] of the Decision:

‘[57] The Applicant was critical of the fact that he had to write his own instructions for the close out process. However, the Applicant said that he had prepared his own “step by step processes,” acknowledged that other members of the team were “getting by” without a SAP manual and agreed that he had attended a specific “project close out workshop,” a training program which Jemena provided to employees. He referred to the task as a “monkey task” that he had the ability to learn. Mr Hemsley said that the Applicant was trained in the process and had demonstrated that he could do it.’

[34] The Appellant asserts that he only attended one of the three SAP close-out workshops. We note that this was not a matter put to the Deputy President but, in any event, even if accepted it does not affect the finding in paragraph [57] of the Decision that the Appellant had ‘attended a specific ‘project close out workshop.’’ The Deputy President’s finding in this regard was based on the Appellant’s evidence – set out at Exhibit AD6 at [35]:

‘35. The Project Close-out process is not clearly defined. Management had been running “Project Close-out workshops” for the group about every 2-3 weeks in May and June as it was recognized that most in the group had issues with project clos-outs in SAP. Due to clashes of times with at least 2 of the PIP meetings with the Project Close-out workshops I was only able to attend one project close-out workshop. At the workshop I attended I did move one project to close-out stage with assistance from the SAP expert.’

Category 3: Ground 29

[35] Ground 29 alleges a denial of procedural fairness, in particular, it is alleged that the Appellant was denied an opportunity to present ‘the full case’ because he was not allowed to further question Mr Hemsley, for a second time on the second day of the hearing.

[36] In the proceedings at first instance the Appellant had sought to cross examine Mr Hemsley on the qualifications required to perform the Appellant’s role before and after the restructure that occurred in late 2016. The Deputy President made the decision not to permit the Appellant to cross examine Mr Hemsley a second time. To place the matter in context it is relevant to note that Mr Hemsley was cross examined by Mr Demosthenous on 17 October 2017, for just under two hours 21 and was excused at 3:17pm. The Respondent then adduced evidence from Messrs Alchin and Tame. Mr Demosthenous then gave his evidence in chief and the proceedings adjourned at 4:43pm. Mr Demosthenous raised the request to put further questions to Mr Hemsley when the proceedings resumed the following morning. This issue was dealt with in transcript at [880]-[909], the passages at [907]-[908]:

‘THE DEPUTY PRESIDENT: Yes. Mr Demosthenous, I am inclined to agree with the submissions that have been made by Mr O'Neill. It is a different way of putting your case, but, more importantly than that, I don't see how that is relevant to the termination of your employment that occurred in June this year, that is, the differences between the two roles and the skill set. It has been acknowledged by witnesses in these proceedings and yourself that the role is broadly the same aside from the removal of some customer facing work and to take that any further, I don't see that there's going to be any relevance in exploring that.

MR DEMOSTHENOUS: There is no relevance in specifically that it was harsh on me. The only relevance that I see, it is very much a downgrading in terms of cost to the company, but I understand your point.’

[37] This matter is dealt with in paragraph [123] of the Decision:

‘[123] In respect of the 2016 restructure, the Applicant sought leave to recall Mr Hemsley for further cross examination at the commencement of day two of the hearing. He said that he wished to ask Mr Hemsley questions about the Applicant’s pre-restructure position as Customer Projects Officer and the qualifications required to perform that role, compared with the Applicant’s post-restructure position as Project Coordinator. The Respondent opposed this course on the basis that it was not relevant. I declined to grant the Applicant leave to recall Mr Hemsley on the basis that I was not satisfied that the matters the Applicant proposed to raise with Mr Hemsley were relevant to the issues that the Commission needed to determine.’

[38] The Deputy President was, of course, obliged to accord the Appellant procedural fairness. But we are not persuaded that her decision not to permit the further cross examination was unfair or amounted to a denial of procedural fairness. The Deputy President considered that the issue which the Appellant sought to pursue was not relevant to determination of the issues she was required to determine for the purposes of the application. The Appellant had been given the opportunity to cross examine Mr Hemsley on the first day of hearing and had been given a fair opportunity to put to Mr Hemsley anything he wished that was relevant to his application.

Category 4: Ground 30

[39] Ground 30 goes to the Deputy President’s consideration of ‘any other matters that the FWC considers relevant’ and challenges the Deputy President’s conclusion that the dismissal was not harsh.

[40] The Appellant submits that:

‘[128] Re-employment at about age 59 will be extremely difficult considering almost my entire working career has been in the Electricity Supply Industry (ESI). In Victoria. The ESI is a very closed industry with only 5 electricity distributers. Citipower, Powercor, Jemena, SP Ausnet, and United Energy. In reality Citipower and Powercor are the one company and operate from the same office with the same management. Most long term employees know each other within the companies.

At age 59 and having been dismissed, and with some health issues, means it is unlikely to be re-employed with one of the 5 major players. I cannot use my past management for reference. My expertise is specific to the ESI and therefore would not be applicable outside the ESI. Once again, I disagree with the Deputy Commissioner concluding it was not harsh to be dismissed in this situation.’

[41] The Deputy President took into account the Appellant’s service, age, employment record and economic situation, at [125]-[126]:

‘[125] I have taken into account that the Applicant is 59 years old and at the time of his termination, had nearly 19 years’ service, which is a significant period. I have also taken into account Mr Hemsley’s evidence that between in or about 2008 and 2012, Mr Hemsley had regarded the Applicant’s performance as acceptable, noting that the Applicant had handled some larger projects and had managed them quite well, but that Mr Hemsley was of the view that the Applicant had been underperforming for the last three or four years.

[126] Further, I have taken into consideration the Applicant’s submission that he may have to sell his house soon if he does not find full time employment in the near future.’

[42] The Deputy President balanced these considerations against her other findings and concluded that the dismissal was not, relevantly, harsh:

‘[127] These matters are to be balanced against the genuine, lengthy and thorough performance improvement process and the extensive opportunities afforded to the Applicant to meet the expectations of his employer and thereby secure his employment. The Applicant had a history of performance based warnings. Jemena’s response must be viewed against the entire backdrop of the Applicant’s performance history, and not in isolation of it. When viewed in such a manner, I do not consider that dismissal for the Applicant’s sustained performance deficiencies was a disproportionate response, even taking into account the Applicant’s period of service, his age, his employment record and his potential economic situation. These additional matters do not weigh so heavily in favour of the Applicant as to render the dismissal in the circumstances, harsh, unjust or unreasonable.

[128] There are no other matters which would lead me to conclude that the termination of employment was harsh, unjust or unreasonable.’

[43] The Deputy President had regard to the fact that the Appellant was 59 years old and had had nearly 19 years’ service with Jemena. We note that the Appellant now contends that the Deputy President erred in not taking into account that the electricity supply industry is ‘a very closed industry’. The Appellant did not advance a submission in similar terms in the proceedings at first instance. No error arises from the Deputy President failing to take into account a matter that was never put to her. The Deputy President had regard to the relevant considerations and her conclusion – that the dismissal was not harsh, unjust or unreasonable – was reasonably open to her.

Further grounds – A1, A2, A3 and A4

[44] Under the heading ‘Additional’ in the Appellant’s written submissions, the Appellant raised four further grounds of appeal which were not included in the Notice of Appeal. We now turn to these matters.

[45] Ground A1 calls into question the credibility of one of the Respondent’s witness, Mr Hemsley. The arguments advanced amount to a restatement of the Appellant’s argument at first instance that Mr Hemsley should have been aware of the Appellant’s medical condition or the effect of that medical condition on the Appellant, and was motivated to avoid making him redundant.

[46] The Appellant’s health and its effect on his performance is considered at paragraphs [95]-[120] of the Decision in respect of which the Deputy President concluded, at paragraph [119], that:

‘[119] Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant was unwilling to engage in this process. In all of the circumstances, I do not accept the Applicant’s submission that his managers should have somehow recognised that he was suffering from personal/health issues and required that he take leave or taken some other action to assist him, such as postponing the PIPs…’

[47] Mr Hemsley’s evidence was only part of this finding, and there was no basis to conclude that the Deputy President erred in accepting Mr Hemsley’s evidence in this regard.

[48] The Appellant’s allegation that the PIP 2 process was designed to avoid making him redundant (thus saving a substantial amount of money) is considered at paragraphs [121]-[123] of the Decision in respect of which the Deputy President concluded, at paragraph [122], that:

‘[122] There is no evidence before me that would lead me to conclude that Jemena’s intention was to “remove” the Applicant from the company in the manner alleged. In any event, I do not consider this to be a matter that is relevant to my determination as to whether the dismissal on 23 June 2017, nearly eight months after the restructure, was harsh, unjust or unreasonable.’

[49] There is nothing identified by the Appellant in ground A1 that points to any error in this finding.

[50] Ground A2 alleges that the Deputy President exhibited ‘apparent bias’ because she accepted the evidence of the Respondent’s witness, but did not accept the Appellant’s evidence that:

‘…excessive stress since 2015 on the Appellant by way of 3 x consecutive PIPs during the process of company restructure, and new job role, has not been considered to affect the Appellants physical and psychological well-being. It is astounding that the Deputy President did not find anything at all harsh in the events since mid 2015 leading to the Appellants dismissal.’

[51] The test for determining whether a Member is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial and unprejudiced mind to the resolution of the question they are required to decide. 22 The hypothetical reasonable observer of the Member’s conduct is postulated in order to emphasise that the test is objective and that the observer is taken to be reasonable.

[52] The recent observations made on this topic by the Full Court of the Federal Court in ALA15 v Minister for Immigration and Border Protection bear repeating:

‘35. Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283.

36. Other relevant principles are:

(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).’ 23

[53] The bias allegation is put on the basis that the Deputy President believed the evidence of the Respondent’s witnesses, but not the Appellant’s evidence that he was stressed. No arguable case of bias has been demonstrated by the Appellant and we are not satisfied that it would be in the public interest to grant permission to appeal in respect of this ground.

[54] Ground A3 alleges that the Deputy President dismissed the evidence of the letters of Drs Hermiz and Yong regarding the Appellant’s medical condition. Contrary to the Appellant’s contention, the letters by Drs Hermiz and Yong were admitted into evidence and taken to be part of the evidence, as indicated at paragraphs [98]-[99] of the Decision:

‘[98] The letter from Dr Hermiz dated 4 August 2017 said that blood tests in late 2016 “showed iron deficiency” and a subsequent colonoscopy “showed Chronic Helicobacter infection” for which the Applicant was taking antibiotics. The letter concluded that, “I don’t think [the Applicant] was able to function at his full capacity taking into account his medical conditions and treatment.”

[99] The letter from Dr Yong dated 7 August 2017 said that Helicobacter Pylori is a stomach bacteria that causes gastric inflammation, abdominal discomfort and other symptoms. The letter said that “it is my understanding [the Applicant] made his manager aware of his medical issues, and symptoms, and that he would need further tests or treatment. In view of [the Applicant’s] ongoing medical issues, this would impact negatively on his work performance.”’

[55] Ground A4 is a restatement of the Appellant’s argument that his managers should have been aware of the extent of his medical condition and the effect of that medical condition on his performance. This issue is dealt with at paragraph [119] of the Decision:

‘[119] I am satisfied that Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant was unwilling to engage in this process. In all of the circumstances, I do not accept the Applicant’s submission that his managers should have somehow recognised that he was suffering from personal/health issues and required that he take leave or taken some other action to assist him, such as postponing the PIPs. It follows that the Applicant’s personal/health issues, including the fact that he had the Helicobacter Pylori stomach virus during some of this period, does not render the termination of the Applicant’s employment harsh, unjust or unreasonable when assessed against all of the circumstances of this case, together with my finding that there was both a valid reason for the dismissal and a procedurally fair process undertaken.’

[56] There is nothing in ground A4 which identifies any error in this finding.

[57] Finally, it is also relevant to note that the Appellant’s dismissal was preceded by a lengthy and thorough performance improvement process which included numerous opportunities for the Appellant to meet the Respondent’s expectations. In summary:

• In September 2015, the Respondent received two complaints from its customers regarding the Appellant’s performance. 24

• Between September and November 2015 Mr Alchin conducted five informal progress meetings with the Appellant 25 which involved the preparation of a spreadsheet listing outstanding tasks to be completed and an agreed timeframe for the completion of each task. Item 9 on the spreadsheet referred to the ‘Melton Highway project’ and estimated that it would take eight hours work to complete this outstanding task.26

• The first Performance Improvement Plan (PIP 1) commenced on 1 June 2016 and provided for an assessment period until 22 August 2016. 27 PIP 1 listed the performance expectations and established review meetings. It contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion.28 The list included the Melton Highway project work, with an agreed completion date of 15 July 2016.

• When PIP 1 concluded on 22 August 2016, the Appellant had not completed all of the required tasks. He was advised at a meeting on 28 October 2016 that Jemena would implement a further PIP. The second PIP (PIP 2) commenced on 1 November 2016 and provided for an assessment period until 28 February 2017. 29

• PIP 2 contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion. It listed the performance expectations and established review meetings. It included uncompleted tasks from PIP 1, including the Melton Highway project work, which had not been completed by the target date of 15 July 2016 and had a new timeline for completion of 15 February 2017.

• Performance review meetings were held with the Appellant and his support person on 30 November 2016, 1 March 2017, 17 March 2017, 30 May 2017 and 23 June 2017. 30

• On 24 March 2017, the Appellant was issued with a first written warning regarding his performance. 31

• The third PIP (PIP 3) commenced on 17 April 2017 and provided for an assessment period until 19 June 2017. 32 This was extended to 23 June 2017 at the Appellant’s request, as he had been absent from work for four days in the review period.33

• PIP 3 contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion. It listed the performance expectations and established review meetings. It included uncompleted tasks from both PIP 1 and PIP 2, including the Melton Highway project work, which had not been completed by 15 February 2017 and had a revised date for completion of 5 May 2017.

• As part of PIP 3, the Appellant prepared a progress sheet, which contained a list of 21 projects specifically requiring ‘close out.’ 34 It is not in dispute that that the progress sheet included projects which had first appeared on the September 2015 Spreadsheet and remained incomplete.35

• On 31 May 2017, Jemena issued the Appellant with a second written warning regarding his performance. 36

• A final performance review meeting was held on 23 June 2017.

[58] It was not in dispute that at the time of his dismissal the Melton Highway project work was one of many outstanding customer project work activities; 37 nor was it in dispute that a failure to coordinate the work had the potential to adversely affect the Respondent’s customers.38

[59] The Deputy President also addressed the matters raised by the Appellant in response to what the Respondent had identified as the shortcomings in his performance (at [48]-[74]), finding as follows:

[51]…I do not accept that the Applicant’s failure to complete the Melton Highway project work can be attributed to any requirement imposed by Jemena on him to perform design work, as alleged…

[66] While the Applicant disputed the extent to which his day-to-day tasks were redistributed during the period of PIP 3, I am satisfied that the Applicant’s usual activities were reduced during the overall PIP process to enable him to complete the backlog of work, save for a small number of new projects issued to him by Mr Hemsley, with a view to ensuring that the Applicant remained up to date with existing work practices. Under cross examination, Mr Hemsley accepted that he did not advise the Applicant of the proportion of his day-to-day work that was allocated to others, but I consider that to have been a matter for Mr Hemsley to manage at his discretion. I note that it was not in dispute that the Applicant was up to date with the confined number of day-to-day tasks issued to him by Mr Hemsley.

[67] The issue was put squarely to Mr Hemsley during cross-examination and Mr Hemsley rejected the contention that he was working to get the Applicant out of the company. I accept this evidence, which is supported by the weight of the PIP material and performance-related discussions since late 2015. I find that Mr Hemsley invested considerable time in the Applicant in order to assist him to meet the PIP deliverables. Further, Mr Hemsley’s conduct in ensuring the Applicant remained up to date with existing work practices leads me to the conclusion that Mr Hemsley was considering the Applicant’s ongoing employment with Jemena in the future, rather than setting the Applicant up for failure, as alleged.

[68] …I do not accept the Applicant’s submission that Mr Hemsley’s focus was on the removing the Applicant from the company, or that this matter affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIPs more generally), as alleged.

[69] Furthermore, the Applicant felt that he was unfairly targeted with a PIP on account of being outspoken about workplace issues. Mr Hemsley and Mr Alchin agreed that the Applicant had been outspoken on certain workplace issues, but denied the Applicant was targeted. The evidence regarding the PIP process, including the Applicant’s own concessions that he was not performing to standard, makes it clear that the PIP process arose on account of the Applicant’s performance deficiencies. There is no evidence before me that would lead me to conclude that the Applicant was inappropriately placed on the PIPs or that the PIPs were implemented because the Applicant was outspoken on work related issues at times. The Applicant accepted that he had no evidence to substantiate his allegation that Mr Woolley (Mr Hemsley’s Manager) was putting pressure on Mr Hemsley to bring the Applicant’s employment to an end. Accordingly, I do not accept that the Applicant was inappropriately targeted with a PIP, as alleged…

[71] The Applicant contends that it was unfair to be issued with PIP 2 on 1 November 2016, which was six days prior to the effective date of his new role of Project Coordinator as part of the restructure. He alleges that Jemena never gave him the opportunity to work under a “clean slate” in his new role.

[72] It was not in dispute that:

• there were different procedural aspects concerning how the Applicant interacted with the SAP system following the restructure; but

• there were no new duties associated with the Applicant’s new role as Project Coordinator. Rather, the new role of Project Coordinator saw the reduction in certain responsibilities such as customer facing functions for any new projects.

[73] It was Mr Hemsley’s evidence that he explained to the Applicant that the performance management process in PIP 2 would continue through the restructure, given that the Applicant’s “duties and responsibilities after the restructure were largely the same, particularly in respect of those matters where he was underperforming, that is, the close out process.”

[74] Noting that the parties were not in dispute about the changes to the Applicant’s duties following the restructure, I accept that PIP 2 was directed towards continuing to address the Applicant’s key performance deficiencies, given that these same tasks would be ongoing for the Applicant in his new role. Accordingly, in the circumstances, I do not consider that the issuing of PIP 2 six days prior to the effective date of the Applicant’s new role of Project Coordinator made compliance with PIP 2 unfair in these circumstances.’

[60] Further, it is not in dispute that on numerous occasions during the performance review process the Appellant was offered assistance, for example:

• Performance review meetings were held with the Appellant and his support person on 30 November 2016, 1 March 2017, 17 March 2017, 30 May 2017 and 23 June 2017. 39 During the 17 March 2017 meeting, Ms Salter asked the Appellant, “What can John [Mr Hemsley] or Jemena do to assist you to meet the requirements Andrew?” to which the Appellant replied, “Once the backlog is out of the way, I will keep working through it. The pressure will then ease off. I want to continue at Jemena. I have never been a fast worker. I tend to think about things a lot. We are tight on numbers now.”

• The warning letter of 24 March 2017 said “please discuss with me at any time your health concerns, I am here to continue to support you and I encourage you to manage this with a medical professional.”

• On 12 April 2017, Ms Salter had a conversation with the Appellant and asked him, “What can I do to help you meet the requirements of the PIP now?” The Appellant responded, “I just need to do my work and tick off the PIP. There’s nothing you can do. I’m tired and I’m not coping. But you can’t help me with that.” Ms Salter asked the Appellant if he had sought medical assistance and the Appellant said, “yes.” 40

• A similar conversation took place at a performance review meeting on 30 May 2017. The Appellant attended with his support person, Mr Tame. It is not in dispute that during the meeting, Ms Salter asked the Appellant, “What can we offer to assist you?” to which the Appellant responded “I really can’t answer that.” Further, Ms Salter said, “As you have found counselling useful, can I arrange to have a counsellor in the workplace or nearby work?” The Appellant declined, stating, “I need to wipe out time to get this work done. I have had a lot of issues since the restructure. I want to meet the requirements of the PIP and then move on and then do counselling. I need to get over this hump. The warning letter offended me. I know I have not been performing. The PIP process has not helped the way I feel.” 41

[61] The Deputy President correctly approached the assessment of whether there was a valid reason for the Appellant’s dismissal. As the Deputy President noted, at [42] and [43] of the Decision, if the reason for dismissal is said to have been deficient performance, the Commission must be satisfied that the performance was deficient and must satisfy itself of the validity of the reason for dismissal and its factual underpinnings.

[62] Taking into account all of the matters raised by the Appellant the Deputy President concluded that there was a valid reason for the dismissal (at [75]):

‘Taking into account all of the above matters, I am satisfied that Jemena had a valid reason for dismissing the Applicant, based on his consistent poor performance, which he failed to remedy. I am satisfied, on the evidence before me, that the performance was deficient. Jemena’s reason for termination was therefore sound and defensible. My conclusion weighs against a finding that the dismissal was harsh, unjust or unreasonable.’

[63] The approach adopted by the Deputy President reveals no error of principle or approach and, further, her conclusion was plainly open on the evidence before her.

4. Conclusion

[64] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, as we have mentioned, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).

[65] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 42 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[66] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 43 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘...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.’ 44

[67] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 45 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

[68] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that the Appellant has established an arguable case of error in relation to the Decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.

PRESIDENT

Appearances:

A Demosthenous, self-represented.

E Mentiplay for Jemena Asset Management Pty Ltd.

Hearing details:

2018.

Melbourne.

7 February.

Final written submissions:

Respondent’s final submissions, 9 February 2018.

ATTACHMENT A – Appellant’s ground of appeal

1. [9] At each of the five progress meetings I advised that I felt stressed, getting frequent headaches, and my sugar levels were going through the roof, of which Mr Alchin ignored my comments and did nothing in relation to the issues. I had a few customer complaints as did most in the group. I felt targeted because I was outspoken regarding work processes, lack of SAP instruction sheets for various tasks, staff levels and workload.

2. [10] The meeting on about 12 Nov 2015 included Mr Woolley, Mr Alchin, and Mr Hemsley. I repeated previous advice of “I felt stressed, getting frequent headaches, and my sugar levels were going through the roof”. Once again Management did nothing in relation to the issues. I also advised I had been seeing the EAP counsellor over the work issues.

3. [32] SAP – Close-outs. It is incorrect to say that no progress had been made on the other 19 projects. At least 5 projects were initiated and waiting on others to do their steps before I could proceed.

4. [32] Melton Hwy Project: design was completed by the Applicant and was at 95 % ready for issue to construction. This would have been done within 1 additional days work.

5. [32] Completion of Design such as Melton Hwy project is not part of the new structure process. As the low voltage design was relatively complex, and I had detailed knowledge, I wanted to complete the project.

6. [32] Mr Hemsley – Day to day tasks included much more than month end reporting and CATS time writing which was about 5% of the monthly work load. There were SAP project estimates, and approvals, and responses to customers, which took up about 95% of my time, which I completed to the correct standard.

7. [32] Applicant - I never used the phrase “I should have focused on low hanging fruit”. The expectation is I should have spent more time on the secondary issue of closing old projects as opposed to dealing with day to day customer work.

8. [47] Mr O’Neil 3rd Paragraph. The Melton Hwy project was not outstanding for 8 years. The initial application by the customer may have been made 8 years ago, but it is not unusual for projects to be placed on hold by the customer. This project was placed on hold for at least 2 years by the customer after the first quotation was provided. At least one more quotation was given to the customer and was accepted about 4 years ago. I do not recall the exact date.

9. [48] Mr Hemsley and Mr Alchin are responsible for how the section is run, and how work is allocated. I have raised many issues regarding work processes, since my arrival in the group some 9 years ago. It is unreasonable to place full responsibility on me regarding priority considering I have raised issues of being stressed, and not coping since 2015. Both managers failed to act to alleviate the situation.

10. [49] The hours allocated to projects in 2015 was at a time when I was very stressed, was getting numerous headaches, which I made absolutely clear to Mr. Alchin many times. Setting target hours without detailed assessment of the work has little validity unless a detailed assessment is made. Example: Just issue of the construction folder can take about 6 hours, when all the sap processes and forms are taken into account.

11. [50] It is not correct to say the Applicant chose not to complete the work. I had spent significant time on this project to bring it to 95% completion before my termination. I did not do “drafting”work associated with the project. I did the design because I had detailed knowledge of the project.

12. [50] Mr Hemsley knew I was doing design work on some projects because I had detailed knowledge of the projects, including the Melton Hwy project, however, he did nothing to direct me otherwise. We were still in a transition phase between the old and new processes. The new process did not include design work. The PIP should have only been carried out under the new process. I repeat the Melton Hwy project was 95% complete and required approximately 1 day to finalise.

13. [53] Once again this was during the time when I was very stressed and not coping, and Mr Alchin failed to acknowledge my health or mental issues. He failed in his duty of care regarding the health of employees.

14. [57] SAP project close-outs are not a clearly defined step by step function. Many steps in the processes can cause the close-out to fail. Numerous times I consulted a SAP expert Mr Crosato, who he himself had issues in closing out projects and devised “work-arounds”.

15. [57] There were 3 x SAP Close-out training workshops. I was unable to attend the first one due to being on sick leave. I attended the 2nd session. The 3rd session was scheduled on the morning of my dismissal and clashed with the final PIP Review of 23rd June 2017. Jemena did not give me the same opportunity to be trained as others.

16. [58] The steps in closing older projects were more complex and had many issues which caused me significant wasted time and frustration as there was never a clearly defined process. In hind-site Mr Hemsley’s direction to tackle the older projects first was the wrong decision. It would have been much more efficient to tackle the newer projects first.

17. [59] No consideration has been given to the fact that I was significantly stressed since 2015 and with the subsequent 3 x consecutive PIPs and restructure, and on-going health issues that I was just over-whelmed. For the final month of my employment Mr.Hemsley made himself obviously scarce and did not inquire about my work or well-being. Mr Hemsley failed to act in his duty of care. He was only focused on removing me from the company because he could see I was not going to meet all the PIP targets.

18. [60] Mr Hemsley could not place hours on most tasks because they were an unknown quantity. In particular the older projects for close-out had many issues with SAP and there was no defined process for our group (not company wide). I had asked Mr Hemsley and Mr Alchin to provide a close-out process many times over the years and they did nothing to resolve the issue. This affected all in the group.

19. [61] If Mr Hemsley had attempted to place target hours against each target, then he and I would have had a much better understanding of the work load for myself and the group.

20. [62] If Mr Hemsley truly understood what was required to close the older projects then he would have arranged an instruction sheet, instead of telling me to go and ask others in the group. All members of the group had some issues with the close-out of old and new projects.

21. [65] All in the group had a heavy workload, and I felt it was a bourdon on others that I should take their time, when management should have addressed the sap issues by more formal means. Several times I felt others were getting annoyed that I was asking questions about the process.

22. [66][67] I was doing all the tasks that others were doing and was not “confined”. It would have been reasonable if Mr Hemsley had made a comparison of my work-output to others so I could fully understand what I was to achieve. In the last month I had prepared 5 projects for approval which I thought was quite a reasonable considering the backlog of work I was doing. I would like to see how this would compare with others in the group.

23. [68] During the last PIP I said 3 times to Mr Hemsly and Ms Salter that I felt overwhelmed and needed a decent break to recoup as I was feeling drained, excessively tired and felt I could work much better. My comments were ignored and no action was taken. Mr Hemsley or Ms Salter could have said, strongly suggested, to take some time off, or to go and see my doctor. I had significant sick leave and annual leave banked up and it would have been reasonable to take some time off considering that I felt excessively stressed many times, and my other ongoing health issues. Mr Hemsley and Ms Salter, and their management were working to have me removed from the company at minimal cost. I was not in the frame of mind to request time off or consult my doctor, and felt I was “doing the right thing” by coming to work. There needs to be recognition of mental health issues, and in particular there is evidence to Management going back to 2015 where I felt over-whelmed and suffering from depression. Jemena management failed in their duty of care. I believe it is no coincidence that Mr Hemsley was rarely in the office in the last month of my employment, and if he was, he would have been aware I was quite sick with the flue for the final 3 weeks of my employment. My physical and mental health seems to have meant nothing to management as they were totally focused on removing from the company. Jemena promotes RUOK day each year, but the management concerned with my dismissal do not pro-actively endorse the policy.

24. [69] Only since the arrival of Mr Woolley in 2015, were staff numbers significantly reduced in group. Bruce Boulter was transferred out of the group. J.McAlindon, B.Rajandram, and Ajantha had won positions in other sections. J.Hemsley did not meet his own position performance standards, and therefore did not receive a pay rise in 2016. J.Hemsley was obviously under pressure to perform. Since I was outspoken regarding work processes, staff levels, and associated stress in the group, I became the target of Management. Management ignored my physical and mental health state. Mr Woolley had a history of removing personnel via the PIP process from past employment. I had never been on a PIP or not received a pay rise in my entire working life, until the arrival of Mr Woolley. I do not understand how the Deputy President can draw the conclusion that I was not targeted.

25. [74] Several new processes were put in place under the new structure, yet I was still completing design work, and other tasks, with the knowledge of Mr Hemsley, as per the old structure. It would be far more reasonable to clear the back-log and then start a new PIP if I was not performing to standard under the new structure. I feel the Deputy Presidents logic is flawed on this matter. The implementation and completion of PIP 1 prior to the restructure, was a clear indication that I did not meet the standard required by Mr Hemsley, and yet I was appointed to the new position without interview or advice that Mr Hemsley was going to continue the PIP process immediately following my appointment to the new position. Any competent manager would not have appointed me to the new role under the circumstances. Jemena has a process for employees who become displaced as a result of not being successful in obtaining a new position under the restructure.

26. [103] Mr Hemsley had not demonstrated how he “weighted the PIP material” in comparison to others in the group. I do not believe he had a clear concept of hours to achieve each task. The Deputy President is taking Mr Hemsleys management ability on face value, and yet he did not achieve all his own performance targets in 2015 resulting in no pay rise in 2016.

27. [119] (a) I have a demonstrated history of stress, depression, and medical issues from 2015, and yet a combination of 3 x consecutive PIPs, a restructure, and health issues, and the inability to make a basic logical decision like taking time off. Jemena management must have recognized I was not coping when I said I feel run-down, exhausted and tired, and need time to recoup. My statement “I am not in the right frame of mind to see a Counsellor at the moment” I feel that Jemena Management must take responsibility for their lack of action and Duty of Care. They have been all talk and no action in regard to caring for me as an employee.

28. [122] Where an employee applies for a position following a restructure and fails to obtain another position Jemena has processes where the employee is given the redundancy. The redundancy for almost 19 years service, 4 weeks per year = 76 weeks pay at a reduced tax, the dollar value is significant. As relations between myself Mr Woolley, Mr Hemsley, and Mr Alchin were strained since 2015, and the implementation of PIP 2 immediately following appointment to a new position it is clear their intention was to remove me from the company without a redundancy package. If Jemena had chosen to wait 6 months, probation period, prior to implementation of the PIP 2, then I would agree there would be no correlation for a redundancy package. I strongly disagree with the Deputy Presidents conclusion on this matter.

29. [123] I have no experience in court procedural matters. The hearing was extremely stressful for me and indeed I was stressed continually since 2015, primarily due to the actions of Jemena management. Without doubt Jemena solicitors were at a clear advantage on these matters. I do not think it unreasonable for the Deputy President to allow me to further question Mr Hemsley who was my direct manager, on the second day of the hearing. The hearing is all about being Fair, and in this situation I was declined from presenting the full case. Once again I disagree with the Deputy President on this matter.

30. [128] Re-employment at about age 59 will be extremely difficult considering almost my entire working career has been in the Electricity Supply Industry (ESI). In Victoria. The ESI is a very closed industry with only 5 electricity distributers. Citipower, Powercor, Jemena, SP Ausnet, and United Energy. In reality Citipower and Powercor are the one company and operate from the same office with the same management. Most long term employees know each other within the companies.

Further grounds of appeal – in Appellant’s outline of submissions

A1. Credibility of Mr Hemsley’s Evidence and Character.

In cross examination Mr Hemsley stated he had no knowledge that low iron levels can cause tiredness and affect the Appellants work performance. The Appellant told Mr. Hemsley a number of times of the low iron level being around 8 when the normal level is about 70 for a male. The low iron levels were under investigation which ultimately led to the endoscopy, which the Apellant had told him about, and had taken leave for the procedure, and the discovery of the Helicobactor Pylori stomach virus. This is further noted in emails since 2015.
Mr. Hemsley is a first aider and family man with adult age son and daughter, and yet he stated under oath he had no idea of the effects of low iron, and that it could possibly lead to low iron and energy levels, which would have a direct impact on work performance. Further he deliberately made no attempt to inquire how any such medical treatment is affecting the Appellants work performance.
This one part of the testimony reeks of the inability to tell the truth, and demonstrates that Mr. Hemsley has no credibility. I would go as far to say that Mr Hemsley’s entire testimony lacks credibility, honesty, and truth. Mr Hemsleys entire evidence should be dismissed on the basis of low character credibility, combined with the inability to tell the whole truth.
This combined with Mr Hemsley, Mr Alchin, Mr Woolley, and Ms Salter not acting when I said on at least 3 occasions during the last PIP that I felt exhausted, over-whelmed, and generally not feeling well and that I needed time to recoup. It would have been clear to Management the intention was that I have break, and return to work at Jemena. Management abused the knowledge that I was a dedicated employee, and it was unlikely that I would take extended time off during the PIP given that I had been under psychological stress for sometime. The process reeked of collusion and a failure of Duty of Care by Mr Woolley, Mr Hemsley, Mr Alchin, and Ms Salter.
Given that Mr. Hemsley did not receive a pay rise in 2016, it was clear he was not acting with integrity during the final two PIPS as Mr Hemsley’s primary goal was to save his own job by removing the Appellant from Jemena to satisfy his own manager Mr Woolley.
Given that Mr Hemsley appointed the Appellant to a new role in 2016 and then placed him directly on PIP number 2, knowing full well the history of the Appellant who failed to meet the requirements of PIP number 1, demonstrates that Mr Hemsley knew the Appellant was unlikely to meet the requirements of further PIPs and saw an avenue to save Jemena a substantial amount of money by avoiding a possible redundancy if the Appellant had not been appointed to the new role. Any manager of credibility would not appoint someone to a new role if he did not have confidence in the person to carry out the tasks. Once again this reeks of collusion and a vendetta against the Applicant.

Mr Hemsley strategically did not allow the Appellant to attend all three SAP close-out training sessions by scheduling at least one PIP meeting at the same time of one of the training sessions.

A2. Apparent Bias of The Deputy President.

Deputy President Millhouse has appeared to accept the information provided by Jemena as 100% truthful and with integrity, and yet it appears that information provided by the Appellant has not been considered as credible or truthful. In particular the view that excessive stress since 2015 on the Appellant by way of 3 x consecutive PIPs during the process of company restructure, and new job role, has not been considered to affect the Appellants physical and psychological well-being. It is astounding that the Deputy President did not find anything at all harsh in the events since mid 2015 leading to the Appellants dismissal.

A3. Letters From GP Mr Hermiz and Specialist Mr Yong.

Even though the letters from GP Mr Hermiz and Specialist Mr Yong were provided after the dismissal, they relate to the Appellants medical condition diagnosed in late 2016 and subsequently treated from early 2017 and during the PIP process. Mr Hemsley and HR were aware of the Appellants medical treatment during the PIP process and deliberately chose to ignore any possible effects on the Appellants performance. It is not unreasonable to deduce that any form of medical treatment may affect the patients performance. Given the Appellant has a stoic work attitude, and was not in the frame of mind to present further information on this matter to management, I consider it unreasonable that Mr Hemsley and HR did not inquire further on this matter and request further information from the Appellant. They failed in their Duty of Care. It is obvious the Appellant could have provided information similar to the content of the letters provided by his GP and Specialist if prompted during the PIP process. Substantial credibility must be given to the letters of Mr Hermiz and Mr Yong, as they are both professionals, despite Deputy Commissioner Millhouse dismissing the letters, and their standing completely.

A4. Excessive Stress, Depression, and Stoic Attitude of the Appellant.

The Appellant had in excess of 4 months sick leave, and considerable annual and long service leave available to be used. The Appellants Doctor would have readily provided leave to the Appellant on request. It is clear the Appellant was not thinking clearly enough to take care of his own well-being. In conjunction management ignored obvious cries for help “I am exhausted, I need a break to recoup” on at least three occasions during the PIP. The Appellant even worked for the last three weeks with the flu with absolutely no acknowledgement from Mr Hemsley that his performance may be affected, or indeed even if the Appellant had the flu. The dismissal was extremely harsh in so many respects, that the only logical, sensible, and right conclusion, would be reinstatement of the Appellant to his former role or other role within Jemena. The FWC needs to consider this case beyond purely legal grounds, and consider the dedicated, hardworking, honest Appellant was stressed and suffering to the point where he could no longer help himself. Please consider:

1. Documentation since 2015, notes on meetings with Mr Alchin, where the Appellant stated numerous times he was stressed, had numerous headaches, and was not coping.

2. Notes from the EAP counsellor of 2015.

3. The Appellant had requested management numerous times to provide efficient processes for completion of SAP tasks.

4. The Appellants own yearly assessment where he stated “I have cracked” and management ignored this comment.

5. The failure of the Appellant to submit for extended leave in order to recoup is an indication the Appelant was not able to function to the extent where he could adequately take care of his own well-being. Jemena management took advantage of the Appellants poor mental state and failed in their duty of care for him.

6. The failure in the Duty of Care of Mr. Alchin, Mr Hemsley, Mr Woolley, and Ms Salter, is inexcusable and reeks of collusion.

7. The potential financial hardship placed on the Appellant given he was aged 59 when dismissed, and the ability of finding further employment given that the Appellant was dismissed and there would be no possibility of a positive “reference” from Jemena.

8. The Appellant had an unblemished working career until the arrival of Mr Woolley in 2015, and subsequent restructure, and implementation of 3 x consecutive PIPs despite presenting information of stress and inability to cope since 2015.

9. The recent death of lead singer of The Cranberries, Dolores O’Riordon who unexpectedly died at age 46, who suffered from depression, and yet close friends had no idea of how extreme her issues were. The Appellant was extremely stressed since 2015, and even though told management many times of his mental and physical medical issues, during the following 2 years they did nothing pro-active to assist the Appellant.

10. There are many people who commit suicide and yet people close to them do not seem to recognize they had specific issues. The Appellant has thought of suicide many times since mid 2015, and the events of his subsequent dismissal is only pushing him closer to carrying out his final task. In this case Jemena management has contributed significantly to the Appellants deteriorating mental state since 2015, and yet claims to have acted fairly the entire time. They should all be ashamed of themselves.

11. It concerns the Appellant that Deputy Commissioner Millhouse only considered this case on a purely legal basis of ”ticking the PIP boxes”, and did not consider harshness on moral, and fair, grounds, and generally on the concept of what is right and wrong, and how the events since 2015 had affected the Appellant physically, psychologically, and financially.

12. The Appellant does not seek sympathy, but indeed seeks recognition there was significant harshness, and excessive stress, in the events leading to his dismissal.

1 [2017] FWC 6945.

2 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

3 (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [23].

4 Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012] HCA 17 at [130]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at [76].

5 Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24 CLR 274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.

6 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.

7 Also see Transcript of proceedings at first instance, 17 October 2017 at [61]-[63], [144], [280], [287]-[290], [303], [325], [352]-[354], [441]-[445] and [650]-[658].

8 Also see Transcript of proceedings at first instance, 17 October 2017 at [391], [401], [506] and 18 October 2017 at [1110].

9 Also see Transcript of proceedings at first instance, 17 October 2017 at [263], [267] and [270]-[273].

10 Also see Transcript of proceedings at first instance, 17 October 2017 at [258]-[260], [358]-[359] and 18 October 2017 at [985]-[991], [1139]-[1172], [1190]-[1254] and [1360]-[1372].

11 Also see Transcript of proceedings at first instance, 17 October 2017 at [264], [387]-[401], [566] and 18 October 2017 at [1348]-[1355].

12 Also see Transcript of proceedings at first instance, 17 October 2017 at [358]-[366] and 18 October 2017 at [1360]-[1372].

13 Also see Transcript of proceedings at first instance, 18 October 2017 at [1318]-[1327] and [1338]-[1347].

14 Also see Transcript of proceedings at first instance, 17 October 2017 at [61]-[63], [144], [280], [287]-[290], [303], [325], [352]-[354], [441]-[445] and [650]-[658].

15 Also see Transcript of proceedings at first instance, 17 October 2017 at [280] and 18 October 2017 at [1328]-[1337].

16 Also see Transcript of proceedings at first instance, 18 October 2017 at [1283].

17 Also see Transcript of proceedings at first instance, 17 October 2017 at [258]-[260], [358]-[359] and 18 October 2017 at [985]-[991], [1139]-[1172], [1190]-[1254] and [1360]-[1372].

18 Also see Transcript of proceedings at first instance, 17 October 2017 at [64], [215]-[221] and [316].

19 See Exhibit R2 at [32].

20 Transcript of proceedings at first instance, 18 October 2017 at [941]-[944]; Exhibit R2 at [32]; Exhibit R1 at [7] and Annexure AS-3.

21 11:53am -12:52pm and 2:06pm-2:56pm: 1 hour 49 minutes.

22 Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41 and Johnson v Johnson (2000) 201 CLR 488.

23 [2016] FCAFC 30 at [35]-[36], cited with approval in AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73 at [31].

24 Exhibit R3 at [12]; Transcript of proceedings at first instance, 17 October 2017 at [603], 18 October 2017 at [970].

25 Exhibit R3 at [17]; Exhibit AD6 at [14]; Transcript of proceedings at first instance, 18 October 2017 at [971]-[972].

26 Exhibit R3 at [19] and Annexure JA-1; Transcript of proceedings at first instance, 18 October 2017 at [988]-[989].

27 Exhibit AD7, Attachment C.

28 Transcript of proceedings at first instance, 18 October 2017 at [1090].

29 Exhibit AD7, Attachment D.

30 Exhibit AD7, Attachment U.

31 Exhibit AD7, Attachment 2.

32 Exhibit AD7, Attachment E.

33 Exhibit AD6 at [31]; Exhibit AD7, Attachment 3; Transcript of proceedings at first instance, 18 October 2017 at [1044].

34 Exhibit R2, Annexure JH-2.

35 Transcript of proceedings at first instance, 18 October 2017 at [1063]-[1081].

36 Exhibit AD7, Attachment 3.

37 Transcript of proceedings at first instance, 17 October 2017 at [506].

38 Transcript of proceedings at first instance, 18 October 2017 at [1097].

39 Exhibit AD7, Attachment U.

40 Exhibit R1 at [11].

41 Exhibit R1 at [6] and Annexure AS-2; Transcript of proceedings at first instance, 18 October 2017 at [941]-[944];

42 (2011) 192 FCR 78 at [43].

43 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].

44 (2010) 197 IR 266 at [27].

45 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

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