| [2019] FWC 1506 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Finn, Brianna Ellis, Lee Harvey, Alice, Patten and Uwe Oestmann
v
Gippsland & East Gippsland Aboriginal Co-Operative Ltd
(U2018/7312; U2018/7313; U2018/7325; U2018/7326; U2018/7327)
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 14 MAY 2019 |
Application for an unfair dismissal remedy – effective date of dismissal – valid reason – misconduct after dismissal – compensation not appropriate in all the circumstances.
[1] On 16 July 2018, Anthony Finn, Brianna Ellis, Lee Harvey, Alice Patten and Uwe Oestmann (the applicants) made applications under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The applicants were employed by Gippsland & East Gippsland Aboriginal Co-Operative Ltd (GEGAC) (the respondent) and formed the respondent’s Executive Management Team, alternatively known as the Executive Leadership Team.
[2] The applicants submit that the termination of their employment was unfair and seek compensation. 1
[3] The applications were heard jointly before me by way of determinative conference on 19, 20, 21 and 22 November 2018.
[4] The applicants were represented by Mr William Barker of counsel and the respondent was represented by Mr Angus Galbraith of counsel. Permission for the parties to be represented was granted pursuant to s.596 of the Act.
[5] I have taken into account all submissions, witness statements and material put.
[6] For a dismissal to be unfair, the Fair Work Commission (the Commission) must be satisfied that the dismissal was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387 of the Act. I will address each of these in turn below. However, before I do so, a determination first needs to be made regarding the applicants’ date of termination as it is relevant to the valid reasons, if any, I can take into account (s.387(a)).
[7] There are no fewer than 14 termination letters in this matter, three for each applicant except in the case of Ms Ellis. 2 I will deal with the letters to each in turn to ascertain the date of termination.
[8] The termination letter to Ms Ellis is undated but was issued on 6 July 2018 3 and summarily dismisses her for the following stated grounds:
‘1. placed a minor in imminent danger in the medical centre in October 2017, by ordering staff to ignore a restraining order concerning an adult male in breach of the order;
2. provided false information to the Board of Directors regarding an alleged incident purporting threatening behaviour from Board member Jeffrey Cooper on 17 July 2017;
3. provided multiple instances of false information to the Board Support Officer, Board of Directors, lawyers acting for GEGAC and stakeholders in the period October 2017 to July 2018;
4. recorded a voice conversation between yourself and staff-member of a key stakeholder organisation without asking their permission and/or informing the person that the conversation was being recorded; [and]
5. back-traced the email chains of stake-holders without gaining their permission or informing them of the trace action.
Your conduct in relation to these incidents:
• caused a serious and imminent risk to the health or safety of a person;
• was wilful and deliberate behaviour that is inconsistent with the continuation of your contract of employment; [and]
• has caused serious and imminent risks to the reputation and funding of GEGAC in that our stakeholder, contractor and regulator’s trust have been compromised and considerable expense has been incurred as a direct result of your unauthorised actions and expenditure.’ 4
[9] The second termination letter, also undated, is in the same terms but signed by Adrian Morgan, Chief Executive Officer (CEO), rather than a number of individual Board directors as in the first letter. 5 This was received by Ms Ellis on 13 July 2018.6
[10] However, given that the termination on 6 July 2018 was a summary dismissal, the letter took effect on the date and time received, which was on 6 July 2018. 7 For the reasons discussed later in relation to Siagian v Sanel Pty Ltd,8 the termination took effect immediately. Therefore, the only conduct relevant to the tests in s.387 of the Act, and the only valid reasons, are those that happened on or before 6 July 2018. The 6 July 2018 letter was signed by Board directors of GEGAC and no submission has been put that they lacked the power to sign the letter. Even if they did, a letter in the same terms was issued by Adrian Morgan, the interim CEO.
[11] The first termination letter for Mr Finn is dated 9 July 2018. A letter of the same date and in the same terms was also sent to Ms Harvey, Mr Oestmann and Ms Patten. It provides that:
‘The Board has decided that your services must be terminated immediately. Any entitlements that are due to you on termination will be paid to you.
Please hand in your keys, phone, laptop and any other GEGAC assets in your possession.’ 9
[12] No grounds for termination are set out. The letters state that ‘your services must be terminated immediately’, a statement ending the employment relationship. There is no reference to payment in lieu of notice, so the ordinary position of giving notice would therefore apply, and the employment relationship continued until the effluxion of the notice provided in the contract.
[13] However, before that notice was worked out, a second termination letter was sent to Mr Finn dated 11 July 2018 and provides:
‘I advise that [GEGAC] has decided to terminate your employment, effective immediately.
You will be paid your statutory leave entitlements and payment in lieu of notice in accordance with the Fair Work Act 2009 (Cth) and your contract of employment (less any applicable tax).
In the meantime, you are required to immediately return all property (including confidential information and other documents) belonging to or concerning the business affairs of GEGAC that may be in your possession or control.
You are also reminded of your ongoing obligations in relation to GEGAC’s confidential information and intellectual property which continue to apply following the termination of your employment.
You are required to immediately leave GEGAC’s premises and are not authorised to return or attend GEGAC’s premises in future unless expressly authorised by the CEO in writing or to return the property referred to above at a time pre-arranged with me.
Yours sincerely,
Adrian Morgan
Chief Executive Officer
[GEGAC]’ 10
[14] No grounds for termination are stated. A letter of the same date and in the same terms was also sent to Ms Harvey, Mr Oestmann and Ms Patten. 11
[15] This second termination letter is a variation to the first in that it provides for the termination to be ‘effective immediately’, payment in lieu of notice, and makes it clear that the applicants are not to attend the premises of GEGAC.
[16] The third termination letter for Mr Finn is dated 24 July 2018 and summarily dismisses him, and alleges that he engaged in serious and wilful misconduct in the following terms:
‘1. Conspiring to have your salary increased without proper authorisation;
2. Conspiring to have your employment contract varied without proper authorisation to include a termination benefit of $100,000;
3. Signing a revised employment contract containing benefits which were not properly authorised and which was fraudulently backdated; and
4. Instructing payroll to process and/or accepting payment to you of amounts to which you were not entitled in respect of the period 9 July to 13 July 2018.’ 12
[17] A letter of the same date and in the same terms was also sent to Ms Harvey, Mr Oestmann and Ms Patten.
[18] The respondent submitted that the effective date of termination for Mr Finn, Ms Harvey, Mr Oestmann and Ms Patten was 16 July 2018 because this was the last day worked by each of them. It submitted that the payment in lieu of notice in the 9 July 2018 dismissal letter would mean that employment ended when the payment was received, and the payment was not made, so the employment continued. The four employees then returned to work on 18 July 2018, on their own admission, directing staff, managing services, and other tasks. They continued to receive salary payments, but not after 16 July 2018. 13
[19] The applicants submitted that the termination took effect on 9 July 2018, and that the employment relationship ended on that day. They submitted that the giving of notice is a unilateral right, not based on acceptance by the other side, and that attempts by the applicants to reinstate the employment relationship did not succeed because it was not accepted by the respondent. 14 Alternatively, they submitted that the actions of the applicants to return to work after 9 July 2018 constituted an ‘attempt to reinstate their employments afresh’, and any termination after that would be a wholly separate termination and would not act to change the date of the terminations.15
[20] The applicants also submitted 16 that the respondent should not be permitted to depart from their earlier view of the effective date of terminations, although this view was put before Commission proceedings, and the debate that inevitably occurs on such issues during Commission proceedings occurred in this case.17 However, as the respondent submitted, I specifically gave the applicants liberty to put further evidence because of the issue, and they elected not to do so.18 There was, therefore, no unfairness in the proceedings, and the objection is somewhat technical and odd. It is quite common for parties to change their minds on key issues in response to evidence or legal argument, and indeed it is highly desirable in many cases to do so.
[21] The issue of date of termination is relevant given the effect it has on determination of whether the actions taken by the applicants after 9 July 2018 could be considered valid reasons for termination.
[22] It is well established that there is a unilateral right to give notice, and that it is not dependent on acceptance of the notice by the other side, and that the notice cannot then be unilaterally withdrawn. As Gray J said in Birrell v Australian National Airlines Commission:
‘The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice.
…
In my view, I should lead against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible…’ 19
[23] In Doumit v ABB Engineering Construction Pty Limited, 20 a Full Bench of the Commission considered a case where a company validly converted an employee resignation on 15 May 1996, effective on 12 June 1996, to effective immediately with pay in lieu of notice:
‘It appears, from Exhibit D9 and we find, that Mr Doumit was paid by the company up to and including 15 May 1996, the date he submitted his resignation, for salary, annual leave, and long service leave purposes. No allowance was credited for service after that date for purposes of leave but he was paid a further amount of one month's salary in lieu of notice. His company car was taken back into possession on 15 May 1996 and he was put in a cab for his journey home. It appears that the payment of the amount calculated as due was made on 15 May 1996 by cheque less an amount already scheduled to be paid into Mr Doumit's bank account on 20 May 1996.’
[24] The Full Bench asked whether there was any employment relationship to terminate. It said:
‘In the circumstances, whether the termination of any connection between Mr Doumit and the company on 15 May 1996 was a termination at the initiative of the employer depends on whether there was any relationship to terminate after the company received the resignation.
There can be no doubt that the subjective intention of Mr Doumit was not to sever the relationship then and there. The evidence entitles us to draw the conclusion that he intended the relationship to continue until 12 June 1996. However it is clear, again from the evidence, that a notice of resignation was given.
The effect of the giving of notice is summarised by Gray J in the Federal Court in Birrell v Australian National Airlines Commission:
“The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice.”
McCarry "Termination of Employment Contracts by Notice" sums up his view of the situation as:
“A valid notice of termination, once received, will operate to end the contract of employment when the period of notice expires or is due to expire, unless in the meantime the contract is ended by some other independent cause. The employer/employee relationship will end with the contract, if it has not ended earlier, but aspects of the contract can still be enforced thereafter.”
We assume for this purpose, and it was not suggested otherwise, that the action taken by Mr Doumit was action he could take under his contract. There is no need to consider matters such as inadequate notice or conditional termination as was the case in Gunnedah Shire Council v Grout and other authorities such as Automatic Fire Sprinklers Pty Ltd v Watson.
There is no suggestion in this case that the employee gave notice which was inadequate or inappropriate. This meant that there was no option for the employer to decide whether or not to accept the notice. The employee could not withdraw the notice unilaterally [see discussion thereon in Birrell at pages 109 - 110]. The only thing required was the effluxion of time.
The employer took no issue with the notice and acted, or at least intended to act, in accord with the contract by giving pay in lieu of notice. It proffered the payment in lieu because it considered that the contract had been terminated. That was a reaction. It was not an initiative to terminate the employment so as to bring the termination under Part VIA Division 3 of the Act as a termination at the initiative of the employer. In the employer's perspective, its actions did not substitute a fresh termination for that which was initiated by Mr Doumit. However, the employer's action did operate to substitute an earlier termination of the employment relationship than that initiated by Mr Doumit. The employer's action operated to reduce some of the benefits that would have accrued if Mr Doumit had worked out the notice period.
We consider that having regard to all relevant circumstances and particularly the length of the notice period, and the scale of payment to Mr Doumit, the company's action to bring forward the date of effect may and should be conceived as consequential to the resignation. In our view the circumstances of the case do not establish matters of fact or degree that would justify our finding that the employer took advantage of the resignation to in effect substitute a termination of the employment on its own initiative. We do not preclude the possibility of there being such a case, particularly in circumstances where a long period of notice is given in the form of a resignation. But this is not such a case.
We determine that on the facts of the case no termination of employment at the initiative of the employer is established. Plainly, our finding on that point has involved consideration of some relatively complex questions of law and the application of them to the facts. It follows from our conclusion that we find also that Redmond C was in error in the finding he made. However, we add that Redmond C was faced with a difficult task, as we have been in this case. Mr Doumit's predicament attracts our sympathy. His case was not devoid of merit. The moderate award made by Redmond C might have survived on appeal had the point taken not been one foundational to jurisdiction and to the proper administration of the statutory power. That consideration might be taken into account by the employer in considering whether any adjustment might be made in Mr Doumit's favour having regard to the outcome of this appeal.’ (footnotes omitted)
[25] There was no termination of employment in that case, rather the employer brought forward the employee resignation. The decision is that the employment relationship ceased on 15 May 1996 when the payment in lieu of notice was made or provided for. That is, that payment in lieu severed the relationship and constituted in effect the effluxion of notice.
[26] In Patterson v Re-Engage Youth Services Incorporated, 21 the Commission considered whether a termination could take effect after a resignation and during the notice period. The employee had given his resignation and was working out his notice period, and then was terminated during that period. The employer decided to shorten the notice period from three weeks to two, and paid it out. The Commission found that there was an employment relationship, which could still be terminated by the employer during that notice period.
[27] In this case, the respondent terminated the employment relationship on 9 July 2018. It appears the termination was with ordinary notice as the respondent stated in its letter that all entitlements ‘will be paid to you’, which does not provide for pay in lieu of notice. The respondent then changed the terms of the termination by letter of termination in each case, dated 11 July 2018, which provided for termination ‘effective immediately’ and payment in lieu of notice. The reference to ‘effective immediately’ and payment in lieu of notice meant that the respondent intended the employment relationship to cease immediately. On the authority of Doumit and other cases, it is open to an employer to vary the ordinary notice period during the notice period, to provide instead for payment in lieu of notice.
[28] What date does termination take effect in circumstances of pay in lieu of notice? In Siagian, a case involving dismissal and payment in lieu of notice, Wilcox CJ said that it would usually be inferred that it takes effect immediately:
‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employees to work, will surely usually wish to end the relationship immediately.’ 22
[29] In this case there is no contrary intention. There was no evidence of an intention to continue the employment relationship in any way. The usual working out of notice would not take place, no further duties would be performed, and the former employees would not attend the workplace. It is difficult to see in what sense the employment relationship continued. It is true that all entitlements were not paid by that date, but there is no sense in the letters of termination that this is significant. As the Full Bench said in Ayub v NSW Trains: 23
‘[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.’ (footnote omitted)
[30] There is no reference in the letters to the summary dismissal only taking effect when all payments are made as a condition. Rather these are debts that are incurred, and which can be recovered by the applicants. It is common for all entitlements to be paid after, for example, a summary dismissal even if only because time can be taken in calculating and then paying the employee. There is no authority to the effect that a summary dismissal only takes effect when all entitlements are paid, and nor could there be. What if, for example, incorrect payments are made by mistake, and a weeks’ pay is left out? On the respondent’s argument, this would mean that the employment relationship would continue in effect until all statutory entitlements are paid, and paid in full and correctly, even if there is some form of complex issue to be resolved such as entitlement to long service leave or unpaid penalty rates.
[31] The later purported summary dismissals on 24 July 2018 had no effect because, having regard to Doumit, there was no employment relationship for the letters to act on. The applicants had not been re-engaged. Their attendance at the workplace was not authorised or condoned in any way.
[32] Therefore the actions of the applicants after 11 July 2018 cannot constitute a valid reason for termination of their employment because they were not employees.
[33] The respondent’s closing submissions, dated 12 February 2019, are said by the respondent to ‘supersede’ those dated 2 November 2018. 24 The applicants correctly pointed out that the respondent focused more on the applicants’ conduct after termination than before, and they may to some extent be correct that ‘this can be taken as an implied admission by the Respondent that if the Commission found that the effective dates of the terminations were 6 (Ms Ellis) and 9 July 2018 (other Applicants), then no valid reason existed.’25
[34] As Ms Ellis noted, the only reason in the termination letter that is still referenced in Mr Morgan’s Witness Statement is the allegation that she engaged in ‘back-tracing emails of stakeholders without gaining permission or informing them.’ 26 This concerns me, although I have had regard to all the evidence. The witness statements of Mr Morgan, Tania Ray and others include a ‘scattergun’ of allegations, some of which are repeated in final written submissions. Presumably, given the wording, this ‘scattergun’ of allegations are not withdrawn, although it is difficult to ascertain how seriously some of the allegations are maintained given the lack of any real attempt to properly develop them. There is also a question in my mind about how fair this sort of approach is to the applicants. There is an onus on an employer to be clear about what conduct it finds at fault to enable procedural fairness for one thing, having regard to ss.387(b) and (c). There is a worrying reliance on hearsay and inadequate evidence overall in many of the allegations.
[35] If the applicants take undue comfort from the defects of the respondent, they should note the remarks I later make regarding their conduct after termination.
[36] The respondent, in its final written submissions, submitted that the valid reasons other than the conduct after 11 July 2018 were ‘informed by an array of factors. They included:
(a) Her bullying conduct towards staff including Melanie Farnham resulting in complaints to the Board and the associated risks to employee health and safety;
(b) The failure to process or properly recognise employee leave entitlements;
(c) Her unjustifiable threats of disciplinary action should an employee approach the Board with issues, grievances and/or requested information;
(d) Her role in preventing the Board from receiving requested information either in a timely manner or at all;
(e) Her role in the breakdown of communications and the relationship between the Board and the executive jeopardising the proper functioning of GEGAC.’ 27 (footnotes omitted)
[37] The respondent said that these allegations were not challenged either adequately or at all under cross-examination of its witnesses, the applicants lacked credit, and other matters. 28 In its final closing submissions, a range of other matters were canvassed. Given the ‘scattergun’ approach and the lack of satisfactory evidence for some or much of it, such as reliance on hearsay and a general lack of clarity, it is not surprising that every detail was not canvassed during cross-examination and re-examination.
[38] In relation to the allegation about Ms Farnham, Mr Morgan’s evidence 29 at paragraphs 49-55, 63, 80-88 and 91-135 is hearsay or largely hearsay in nature. Ms Ray’s evidence30 at paragraphs 93, 99-115, 149-152, 156, 165-166, 170 and 177-182 is also hearsay or largely hearsay in nature. In any event, Ms Ellis was extensively cross-examined about the issue and I do not reject her explanations.31 Mr Morgan appeared to concede that Ms Ellis, to some extent or wholly, acted appropriately.32 I note a letter from a doctor objecting to Ms Ellis’s actions,33 although she did not appear as a witness, and it is arguably hearsay. I also note a letter Ms Ellis wrote to Ms Farnham dated 2 July 2018, which makes the perfectly logical point that Ms Farnham met with the Board ‘during the period [she is] claiming as sick leave - which would indicate that [she did] have some work capacity’ and other points.34 I am not satisfied that the allegations constitute a valid reason.
[39] In relation to the alleged failure to process or properly recognise employee leave entitlements, Mr Morgan gave evidence that Ms Farnham’s medical certificate was not accepted, 35 the Board decided to investigate Ms Ellis in relation to the medical certificate issue,36 and other issues. Ms Ray gave evidence that Ms Pearce said that she had to use her leave entitlements, unlike others, while stood down,37 Ms Ellis was making it impossible for Ms Farnham to have her long service leave recognised,38 the Board wanted an investigation of this,39 the Board wanted Ms Farnham’s sick leave issue to be investigated,40 and this, amongst other concerns, formed part of the Board’s decision to terminate Ms Ellis.41 It appears that an investigation into these matters was not conducted, and it is difficult without a detailed investigation to understand exactly what happened. However, I note that Ms Ellis threatened Ms Farnham with legal action,42 which is unusual. Without further information, I am unable to come to a conclusion on these issues, and it is odd that the Board took the action that it did without the outcome of a formal investigation or complete information. Ms Ellis was cross-examined about these allegations,43 and I am unable to reject her evidence and explanations. There was no valid reason.
[40] In relation to the alleged unjustifiable threats of disciplinary action should an employee approach the Board, Mr Morgan gave evidence that Ms Ellis told staff ‘not to speak to the Board members’ and threatened disciplinary action at a meeting on or about 7 June 2018. 44 Similar evidence was given by Ms Ray. Ms Ray suggested that staff were told not to talk to the Board directly and she could not obtain information from staff.45 Michael Luckwald gave similar evidence.46 However, it is also the case that the chain of command in an employment relationship within an organisation may need to be reinforced on occasion. For example, if a manager is appointed, that manager may supervise staff and implement their own reporting lines to a Board or upper management. It is a question of degree, and I am not satisfied that Ms Ellis acted inappropriately. I deal with this issue further below as it overlaps with the allegations about Ms Ellis’ role in the breakdown of communication between the Board and the Executive.
[41] In relation to Ms Ellis’ alleged role in preventing the Board from receiving requested information, I am not satisfied that Ms Ellis did this. Mr Morgan gave evidence that information was not provided when requested, 47 Ms Ellis sent Ms Farnham a letter threatening legal action,48 the Board was not happy with inadequate information being reported,49 there were reports that Ms Ellis was blocking information to the Board,50 and other matters. Ms Ray gave similar evidence. However, this is largely general in nature, and would need to be more specific to enable Ms Ellis to reply and for me to accept the allegations. I am satisfied that there seems to have been disagreements, and it is difficult to allocate responsibility for this.
[42] In relation to Ms Ellis’ role in the breakdown of communication, and the relationship between the Board and the Executive jeopardising the proper functioning of GEGAC, Mr Morgan gave evidence about an email written by Ms Ellis outlining alleged aggressive behaviour of a Board member towards Executive members, 51 a statement by Ms Ellis to staff that they were not to speak to the Board members and if they did, they would be subject to disciplinary action,52 the deterioration of the relationship between the Board and the Executives,53 claims by Ms Ellis and Bradley Brown that he had a conflict of interest and there were issues with his remuneration,54 and Ms Ellis’ power and role within GEGAC.55 Ms Ray gave similar evidence.56 Ms Ellis gave evidence in cross-examination that:
‘The board relied on the CEO, the general manager - that is yourself - and the executive leadership team to provide them with up-to-date information so that they could make proper and informed governance decisions?---It's the CEO's responsibility to report to the Board.’ 57
[43] Further, Ms Ellis said in cross-examination that:
‘It's fair to say, isn't it, that you didn't want her making requests of that nature direct to employees?---I believe it's poor governance.
That's not what I asked, Ms Ellis. You didn't want her making those requests, whatever your beliefs were?---Yes, I found that it interfered with operations.’ 58
[44] The statement by Ms Ellis about not speaking to Board members is significant but as discussed above, the chain of authority in an organisation has to, on occasion, be reinforced. It is a question of degree, and I am, on the limited information available, unable to come to a conclusion that this was a valid reason for termination of employment. This was a conflict that had to be resolved by a Board resolution setting out who would report and who would talk to who, and this was not done. Mr Morgan reported Ms Ellis’ statement to the Board, 59 but it appears no specific response by the Board setting out what the appropriate arrangements were was made, and then communicated to Ms Ellis and others. In the absence of such a specific Board decision, I am not satisfied that these allegations have been sustained.
[45] Turning to deal briefly with other allegations made in witness statements against Ms Ellis, and not highlighted in the final submissions, Mr Morgan gave evidence that Ms Ellis was involved in a lengthy set of interactions and actions, which included attending a Board meeting on 25 May 2018 and follow ups, and attending a meeting on or about 7 June 2018 between Mr Brown and himself. 60 Mr Morgan also gave evidence about allegations of bullying by the Executive Management Team, allegations of listening devices, allegations of financial fraud, issues raised by Ms Ellis and Mr Brown regarding his position as a Board Member and an employee of GEGAC, and taking sick leave.61
[46] It is difficult in nearly all cases to allocate right or wrong to each side. In this case, Mr Morgan appeared to allege that Ms Pearce was ‘bullied’. Much of Mr Morgan’s evidence is hearsay in nature, with Mr Morgan alleging that Ms Pearce stated certain things, which is not direct evidence as to what happened by way of bullying. In any event, he agreed that he was not suggesting that Ms Ellis actually bullied Ms Pearce, and just assumed that Ms Ellis would have known what other staff were doing. 62 Mr Morgan also said that he did not have any discussions with Ms Ellis about the issue.63 I am unable to conclude that Ms Pearce was bullied on the material before me, or that Ms Ellis acted inappropriately.
[47] Mr Morgan made no clear allegation of inappropriate conduct by Ms Ellis in relation to an email she forwarded on 28 May 2018, 64 and I am unable to find that Ms Ellis acted inappropriately. I do accept that relations between the Board and the Executive Management Team were ‘deteriorating rapidly’.65 However, that does not constitute a valid reason.
[48] Despite some attempts by Mr Morgan to resolve differences, the relationship between the Board and the Executive Management Team ‘got worse’. 66 I am not satisfied nor was it clearly asserted directly that Ms Ellis acted inappropriately.
[49] In relation to further bullying allegations and listening devices, Mr Morgan gave evidence that Ms Farnham told some Board members that she had been bullied by Ms Ellis. 67 It was not clear if Mr Morgan was present at the meeting where Ms Ellis made a number of statements,68 and no clear allegation of misconduct was made. Mr Morgan said Ms Ellis rejected a medical certificate,69 and the Board ordered an investigation into this rejection but it never took place.70 Mr Morgan also said Ms Ellis sent Ms Farnham a letter making allegations,71 but it was not clear whether or not the allegations are true or false. Mr Morgan appeared to have no direct knowledge of this.
[50] Mr Morgan said others made allegations about the Executive Management Team, 72 but again this is largely hearsay and no clear allegation of misconduct by Ms Ellis was made.
[51] Mr Morgan further gave evidence about large security cameras, the disappearance of emails, complaints from three staff members about long service leave decisions, and funding for a program. Each of these could involve some form of misconduct by Ms Ellis, but there was no clear evidence of misconduct that could be accepted. The incidents were not proven as misconduct.
[52] In relation to alleged financial fraud, Mr Morgan made allegations that purchase orders were fraudulent, 73 but no evidence which could be accepted of inappropriate conduct by Ms Ellis appeared.
[53] In relation to issues raised by Ms Ellis and Mr Brown regarding Mr Morgan’s conflict of interest, being both an employee of GEGAC and a Board member, 74 this, on its face, might conceivably be relevant to raise even if it is ultimately rejected. No clear allegation of inappropriate conduct by Ms Ellis emerged. Mr Morgan made a number of allegations, which I am unable to accept, given the lack of evidence and analysis.
[54] Mr Morgan took sick leave due to pressure and stress, 75 but again no clear allegation of inappropriate conduct by Ms Ellis was made.
[55] Mr Morgan said that an issue arose regarding Mr Cooper’s ability to attend Board meetings because of Mr Brown’s concerns about ‘safety and health and wellbeing’, and Mr Cooper’s alleged ‘aggressive behaviour’. 76 It is impossible to determine the truth of this or otherwise on the material before me, let alone that Ms Ellis engaged in inappropriate conduct.
[56] I accept that the Board had ‘lost complete trust’ in Ms Ellis, 77 but that is not the same thing as a valid reason. An unsubstantiated allegation of ‘listening devices’ was made,78 and other general observations about the Board’s view. None of this assists me in finding that Ms Ellis engaged in inappropriate conduct, and if so, what conduct.
[57] The Board initiated a review of finances because of ‘possible financial mismanagement’, 79 but again this was not proved. Peter Blackie gave evidence that he quickly reviewed parts of the financial reports that the Board had been provided for the 6 July 2018 meeting, and there were a number of issues of concern, which he listed.80 He gave evidence about the process he undertook for addressing problems, and concluded that GEGAC’s financial statements ‘did not comply with Australian Accounting Standards… [and] this could have put funding at risk.’81 His investigation appeared to be ongoing rather than complete.82
[58] On Ms Ellis’ own evidence, she had some responsibility for the reports even though she was not the CEO. Ms Ellis said that she sent them to Ms Ray on 30 June 2018. It may be that the Board had never raised issues about the reports, as she said, which makes the Board possibly culpable as well. It is also the case that she was terminated before the investigation into the reports was complete, and Mr Blackie may not have provided all the detail necessary to enable her to respond. 83 Mr Blackie had raised a number of issues but in my view, the completion of his report might indicate who is at fault in relation to the accounts, and what the faults are, if any. In those circumstances, I am unable to find that there was a valid reason for termination of Ms Ellis’ employment arising out of the accounts.
[59] Mr Blackie said that ‘he [had] never met Brianna [Ellis] or seen her’, 84 so his direct knowledge of her is very limited. I also note that Mr Blackie gave evidence that he advised the Board he would not accept a job unless Ms Ellis was removed, and did this before being aware of all the present allegations against her,85 which suggests some form of predetermination of matters concerning her. His evidence about the accounts is dealt with earlier. Overall, I am unable to find a valid reason for termination of employment arising out of his evidence.
[60] Overall, I am satisfied that there were disagreements between Mr Morgan and Ms Ellis, and the Board and Ms Ellis, but I am unable to find any inappropriate conduct by Ms Ellis, which constitutes a valid reason for termination of employment before her termination of employment. 86
[61] Ms Ray gave evidence about a long list of alleged instances of misconduct, or possible instances, by Ms Ellis, which were denied. Ms Ellis denied 87 Ms Ray’s allegation regarding recording devices,88 denied89 the allegation that she used the Executive Leadership Team to ‘extend her power within GEGAC’,90 denied91 the allegation about the threat of disciplinary action if staff went to the Executive Leadership Team with issues that may have threatened its power92 and also denied93 staff were specifically informed not to respond to Ms Ray’s requests,94 denied95 the allegation about ‘increasingly poor behaviour’ of the Executive Leadership Team,96 denied97 the allegation that Ms Pearce was ‘targeted’ or treated differently from other staff,98 denied99 the allegation that she had instructed Ms Pearce and GEGAC staff not to speak to the Board and threatened them with disciplinary action if they did,100 denied101 the allegation that GEGAC employees were often threatened with disciplinary action by the Executive Leadership Team,102 denied103 the allegation that she threatened GEGAC employees with disciplinary action if they approached the Board directly,104 denied105 the allegation that she was manufacturing and exaggerating issues,106 denied107 the allegation that she was in any way involved with the surveillance of staff,108 denied109 the allegation regarding her treatment of Ms Farnham,110 denied111 any involvement in purchase orders that had been signed by ‘Melissa Hayes’,112 denied113 the allegation about Mr Morgan’s timesheets,114 denied115 all allegations of fraudulent misconduct and that there were any findings of such,116 and denied117 the allegation that she may have entered GEGAC premises on 8 July 2018 to retrieve her phone.118
[62] Overall, I found both Ms Ellis and Ms Ray to be acceptable witnesses. The accounts they gave are more consistent with a longstanding disagreement between groups of people than with actual credible incidents of inappropriate conduct by Ms Ellis. For example, poor communication is just as likely to have been a result of a disagreement than necessarily any specific wrongdoing on Ms Ellis’ part. 119
[63] As the applicants submitted, Ms Ellis did not receive any warnings, performance reviews, or discipline of any kind, but was elevated to General Manager. 120 Further, a proper investigation was not conducted to substantiate the various allegations against her.
[64] I am unable to find a valid reason for termination of employment in the allegations variously made by the respondent in a somewhat ‘scattergun’ fashion.
[65] In relation to Mr Finn, the respondents submitted that ‘the other valid reasons for the termination of the employment of Anthony Finn were informed by an array of factors. They included:
(a) His security access for GEGAC premises being used afterhours to acquire GEGAC property for Brianna Ellis who had been dismissed and had no entitlement to that property;
(b) The loss of trust that he would perform his role without intimidation and disruption or acting as an avenue for Brianna Ellis to attempt to exercise illegitimate control.’ 121 (footnotes omitted)
[66] In relation to the first of these allegations, Mr Morgan said that ‘I suspect’ that Mr Finn used his access code to take Ms Ellis’ phone. 122 In saying that, it appears that Mr Morgan had established the belief that Mr Finn used his code to access the Administration Building to retrieve Ms Ellis’ phone based on information that he was provided by an Information Technology (IT) contractor that GEGAC engages, Justin Hindle.123 Mr Hindle’s alleged statement is hearsay, and there seems to be little or no direct knowledge on Mr Morgan’s part. Mr Morgan’s suspicion is not proof that Mr Finn acted as alleged, and it is strange that the respondent elevated a suspicion into some form of firm accusation. Ms Ellis said that she did not leave her phone in her pigeon hole but found it later in her car.124 Mr Finn denied going back to collect Ms Ellis’ phone.125 The respondent has not sustained this accusation.
[67] According to Mr Morgan, the Board decided that it was ‘unworkable’ if Mr Finn remained employed after Ms Ellis was terminated, because Mr Finn was Ms Ellis’ ‘domestic partner’. 126 Mr Morgan alleged that the Board ‘had lost all trust and confidence’ in Mr Finn, and it was concerned that he would ‘intimidate staff and be disruptive’, and would ‘send information’ to Ms Ellis.127 Mr Morgan further alleged that Ms Ellis had prepared many of Mr Finn’s emails and reports to the Board and Mr Finn would be an ‘avenue for Brianna to exercise control’.128
[68] Mr Morgan conceded in cross-examination that Ms Ellis had never done this before. 129 This is not a valid reason for termination of employment in the absence of further explanation or specific allegations that make it unworkable. In fact, it appears to be an inappropriate and discriminatory decision based on a domestic partnership. I am not satisfied on the evidence before me that Mr Finn would necessarily or be likely to act inappropriately with information and other matters. These are serious allegations, and there is little or no direct evidence to substantiate them. They are simply asserted. I accept that this may be the belief of Mr Morgan and the Board, but more is required if the respondent is attempting to demonstrate a valid reason for Mr Finn’s termination. As Mr Finn said in his evidence, he was never provided with sufficient detail in order to respond, and these are hypothetical allegations of poor conduct.130 Overall, I do not accept the allegations.
[69] Mr Blackie 131 and Ms Ray132 also gave evidence about the termination of Mr Finn, which was broadly rejected by him.133 On the material before me, I am unable to find a valid reason for termination of Mr Finn’s employment.
[70] The respondent’s final submissions stated that:
‘The valid reasons for the termination of Lee Harvey include her bullying conduct towards staff including May Pearce and Melanie Farnham and the associated risks to employee health and safety.
…
Further, Lee Harvey was aggressive and confrontational toward Adrian Morgan (CEO) and Peter Blackie (CFO)…
She also failed to respond to lawful and reasonable directions to attend meetings and communicate with Adrian Morgan as CEO and the Board. She did so without any reasonable excuse.
…
These are valid reasons for her dismissal.
Like her serious misconduct after 9 July 2018, her aggressive approach and failures to communicate were demonstrative of a disregard for her duties as an employee of GEGAC.’ 134 (footnotes omitted)
[71] The respondent was also critical of her giving evidence, and other matters.
[72] In relation to the alleged bullying of Ms Pearce and Ms Farnham by Ms Harvey, Mr Morgan gave evidence that Ms Pearce told the Board that she was ordered off the premises by Ms Harvey after her Working With Children Check lapsed, and other matters. 135 This and other evidence is hearsay and I do not accept it. Ms Pearce did not give evidence. Ms Ray gave similar hearsay evidence,136 which I do not accept. Ms Harvey denied the allegations about Ms Pearce,137 was not cross-examined about Ms Pearce or Ms Farnham, and I am unable to reject her evidence. There was no valid reason.
[73] In relation to the alleged aggressive behaviour of Ms Harvey, it concerned the appointment of a Committee of Management (COM) on 9 July 2018, which consisted of Mr Morgan, Mr Cooper, and Mr Blackie. 138
[74] On 9 July 2018, an email was sent to all staff at GEGAC with ‘attached communication from the Board of Directors for your urgent attention’. The email was signed off by Tania Ray, Board of Directors Support - GEGAC. The attached letter stated that a Committee of Management had been appointed by the Board and it would ‘be responsible for all roles of the CEO and General Manager.’ The letter further outlined the members of the Committee, and advised of a meeting to ‘discuss matters concerning the past and the future so that everyone is fully informed.’ 139
[75] Mr Oestmann said that he was ‘not sure’ if he read the 9 July 2018 email at the time it was sent. 140 He said that he might have been at work but he was ‘not sure’.141 He also raised a number of legal issues about the power of the Board to take this action.142 The appointment of the COM seemed to have been a somewhat novel endeavour, and it is understandable that in a situation of high conflict, the legalities or otherwise of the appointment would be under scrutiny, for a short period only perhaps.
[76] Ms Harvey also raised a number of legal issues about the appointment of the COM, 143 and again this is reasonable for a short period, given the novelty of the appointment and the context.
[77] Mr Morgan said that he tried to call Mr Oestmann, Ms Harvey and Ms Patten to ask them to attend a meeting in the boardroom to inform them about Mr Brown and the COM. He said he left voice messages with each applicant; however, he was only successful in contacting Ms Patten. Mr Oestmann and Ms Harvey did not call him back. 144 Ms Patten refused to attend a meeting in the boardroom because she was ‘concerned about her job’.145 This is inappropriate and a valid reason for termination of employment.
[78] Mr Morgan said that he intended to explain to Mr Oestmann, Ms Harvey and Ms Patten that they would be reporting to the COM and how that would operate, but the Board decided instead to terminate them. 146
[79] Mr Oestmann, Ms Harvey and Ms Patten were terminated for their failure to follow instructions to attend meetings with the Board, Mr Oestmann and Ms Harvey’s confrontational response to Mr Blackie and Mr Morgan, their failure to take directions from the COM, and their poor treatment of staff. 147
[80] Mr Morgan said that Ms Harvey and Mr Oestmann ‘aggressively confronted’ him and Mr Blackie in the office on 9 July 2018, and asked them what they were doing, disputed the ability of the Board to terminate Ms Ellis or employ Mr Blackie, and disputed the power to put Mr Brown on leave. Mr Morgan told them that the Board did have the power. Ms Harvey and Mr Oestmann insisted that they leave. Mr Morgan and Mr Blackie left because they did not wish to make an issue about it. 148
[81] Ms Harvey gave evidence that on 9 July 2018 she discovered Mr Morgan and Mr Blackie had ‘locked themselves in Ms Ellis’ office’, and she was ‘concerned for the privacy and safety of Ms Ellis’ personal belongings’ and told Mr Oestmann. Ms Harvey said she and Mr Oestmann then knocked on Ms Ellis’ office door, unlocked the door, and found Mr Blackie standing behind her desk. She said Mr Oestmann told them that Ms Ellis was ‘entitled to due process and her belongings and office should not be touched [and] [a]fter a heated discussion it was agreed that [they] would all leave the room pending further advice’. 149 Mr Oestmann gave similar evidence that differed in some respects.150
[82] Ms Harvey sent an email concerning the altercation on 9 July 2018, in which she expressed concern about the entry into Ms Ellis’s office and said that she was unsure how Mr Morgan would have a key. Ms Harvey’s email also stated that Mr Oestmann had asked maintenance to put a lock on Ms Ellis’ door. In her email, she questioned whether instructions should be taken from Mr Brown, the CEO, on leave and not the Committee, and Mr Blackie advised that the Board was the employer not Mr Brown. 151
[83] On 9 July 2018, Ms Harvey was sent an email asking her to call Mr Morgan. Her response was, ‘I’m going home sick.’ 152 In cross-examination, she conceded that she should have called Mr Morgan back and that she would have done ‘everything different’, or ‘most things’.153 Mr Oestmann gave evidence that he received the voice message when he got home; however, it was out of the timeframe that Mr Morgan had requested to call back.154
[84] In my view, the evidence of Ms Harvey and Mr Oestmann was somewhat disingenuous on this issue. I have little doubt that they were aware of the new arrangements and in fear for their jobs, and attempting to resist the new arrangements, which they did not support. That is, on the balance of probabilities, why they did not call Mr Morgan back, not the reasons stated, and this is partly conceded by Ms Harvey.
[85] In relation to the altercation on 9 July 2018, Ms Harvey and Mr Oestmann were entitled to raise issues regarding Ms Ellis’ personal belongings, and about due process and powers, for a short period. However, they must have also been aware that they were defiant of the Board, and this was inappropriate. The legal objections they raised were somewhat weak, and they must have been aware of this to some extent.
[86] However, they had only just learnt of the new arrangements that were put in place in the context of a long dispute between two groups of people in an organisation, in which views had become entrenched. The powers of the Board to appoint a committee of this kind might conceivably raise some legitimate legal issues. I am not satisfied that they were ‘aggressive’ to the point of misconduct, and it is likely that both sides contributed to the ‘heated’ nature of the meeting. They were people of some standing and responsibility, and had a management role, which is consistent with them engaging in some degree of questioning and checking.
[87] The behaviour of Mr Morgan and Mr Blackie was not ideal either. There may be a question of how they came to obtain a key, and locking the door of someone else’s office before it had been cleared by her, and in circumstances of some lack of clarity in a transitional period, it is not ideal behaviour although they had duties to perform as part of the new Committee and were legitimately trying to do that.
[88] It is likely that this was yet more conflict oriented behaviour by two groups of people in a longstanding dispute.
[89] There were valid reasons for termination of employment of Ms Harvey, Ms Patten and Mr Oestmann but those valid reasons have to be viewed in the context set out above.
[90] The respondent’s final submissions stated that:
‘The valid reasons for the termination of Alice Patten included her bullying conduct towards staff like Melanie Farnham and the associated risks to employee health and safety.
Further, Alice Patten refused lawful and reasonable directions to attend meetings and communicate with Adrian Morgan as CEO and the Board… Disobeying a lawful and reasonable direction constitutes a valid reason and her refusals were not legally justified.
These were the valid reasons for her dismissal.
Alice Patten’s refusals to follow direction were entirely consistent with her unlawful actions and serious misconduct after 9 July 2018 evidencing sustained motivation for disobedience.’ 155 (footnotes omitted)
[91] Mr Morgan gave evidence that Ms Pearce attended the 25 May 2018 Board Meeting, and alleged that Ms Patten did not respond to her request for help or provide her with any support even though she told Ms Patten that ‘it was crucial’. 156 Mr Morgan said Ms Pearce further alleged that she was not the only employee who was ‘being bullied by the Executive Management Team’.157 However, this is hearsay. Ms Pearce did not give evidence, and Mr Morgan appeared to have no direct knowledge except for what he had been told. Ms Patten was not cross-examined about the alleged bullying of Ms Pearce, or the applicants’ bullying in general. There was no valid reason.
[92] In relation to the alleged bullying of Ms Farnham, this issue has been discussed earlier. Mr Morgan gave largely hearsay evidence, 158 which I do not accept and Ms Ray gave largely hearsay evidence,159 which I also do not accept. As I said above, there were valid reasons for the termination of employment of Ms Harvey, Ms Patten and Mr Oestmann but those valid reasons have to be viewed in the context set out above.
[93] In relation to the breach of lawful and reasonable directions, I have discussed this earlier and found that there is a valid reason for termination of employment.
[94] The respondent’s closing submissions submitted that Mr Oestmann was aggressive and confrontational towards Mr Morgan and Mr Blackie, as evidenced by his conduct in the witness box, and failed to respond to lawful and reasonable directions without any reasonable excuse, and these are valid reasons. 160
[95] In relation to Mr Oestmann being allegedly aggressive towards Mr Morgan and Mr Blackie, I have dealt with this above. I am not satisfied that they were ‘aggressive’ to the point of misconduct, and it is likely that both sides contributed to the ‘heated’ nature of the meeting.
[96] In relation to Mr Oestmann’s conduct in the witness box, this does not constitute a valid reason for termination of employment.
[97] In relation to his alleged failure to respond to lawful and reasonable directions, I have dealt with this above. Mr Morgan said that after attempting to contact Mr Oestmann, Ms Harvey and Ms Patten to ask them to attend a meeting to inform them about Mr Brown and the COM, he was only successful in contacting Ms Patten. Mr Morgan said that he intended to explain to them that they would be reporting to the COM and how that would operate, but the Board decided instead to terminate them. 161 Mr Oestmann gave evidence that he received the voice message when he got home but it was out of the timeframe that Mr Morgan had requested to call back.162 I said that the evidence of Mr Oestmann was somewhat disingenuous on this issue. I have little doubt that they were aware of the new arrangements and in fear for their jobs, and attempting to resist the new arrangements, which they did not support. That is, on the balance of probabilities, why they did not call Mr Morgan back, not the reasons stated, and this is partly conceded by Ms Harvey. The failure to call back and get in contact with Mr Morgan is a valid reason for termination of employment. In my view, Mr Oestmann failed to respond to lawful and reasonable directions.
[98] I find that there was a valid reason for the termination of employment of Ms Harvey, Ms Patten and Mr Oestmann. These valid reasons have to be viewed in context below in assessing the overall factors. I find that there was no valid reason for the termination of Ms Ellis and Mr Finn.
[99] No valid reason for the termination of Ms Ellis or Mr Finn existed, and therefore they could not be notified of that reason: Chubb Security Australia Pty Ltd v Thomas. 163 However, in relation to Ms Harvey, Ms Patten and Mr Oestmann, they were not notified in the termination letters of 9 and 11 July 2018 or before.
[100] In relation to Ms Harvey, Ms Patten and Mr Oestmann, there is force in the respondent’s submission that the applicants were ‘clearly not interested in engaging with those persons in an effort to mitigate the situation’, 164 which made procedural fairness more difficult. Nevertheless, there was no opportunity to respond because Mr Morgan invited them to the boardroom not to discuss termination and give them an opportunity to respond, but to discuss the new arrangements. When they did not appear, the Board then changed this to a decision to terminate their employment.165
[101] In relation to Ms Ellis, on Mr Morgan’s own evidence, 166 the letter of termination was simply given to Ms Ellis to read and there was no opportunity for her to put a case, which is consistent with her evidence. She was not given an opportunity to respond: Crozier v Palazzo Corporation Pty Limited.167
[102] In relation to Mr Finn, the letter was simply couriered to Mr Finn’s house. 168 This is not an opportunity to respond.
[103] There was no meeting therefore no support person was asked for.
[104] This is not relevant.
[105] This is a medium sized employer. The respondent submitted that it relied on external advisors for human resource specialty and expertise. 169 I have taken this into account.
[106] The respondent submitted that I might take into account the applicants’ conduct after their termination of employment. However, logically, the phrase in s.387(a) of the Act, ‘related to the person’s capacity or conduct’, refers to capacity or conduct leading up to the termination, not after. The scheme of the Act is to set out the valid reasons that may be taken into account, specifically in s.387(a). That subsection is confined to valid reasons that occurred before termination as ss.387(b) and (c) provide for notice and an opportunity to respond to allegations about conduct that has already occurred. If the Commission then took into account later conduct, this would run counter to this statutory scheme of procedural fairness. Section 387(a) is limited in nature to valid reasons ‘related to the person’s capacity or conduct’. It would not be consistent with these provisions to have regard to a valid reason after the cessation of employment under s.387(h) or matters dealt with elsewhere in the Act such as redundancy for example.
[107] In my view, the valid reasons for termination of Ms Harvey, Ms Patten and Mr Oestmann have to be viewed in context and were somewhat weak. Given their weakness, and also taking into account a lack of procedural fairness and the other factors in s.387, I find that their dismissal was harsh, unjust or unreasonable. In relation to Ms Ellis and Mr Finn, there was no valid reason for termination, and taking into account a lack of procedural fairness and the other factors in s.387, I find that their dismissal was harsh, unjust or unreasonable.
[108] In relation to remedy, the applicants initially sought reinstatement but amended this to compensation in lieu of reinstatement during the proceeding. 170 I am satisfied that reinstatement is inappropriate.
[109] In this case, the applicants made minimal concessions about their conduct after their termination. They submitted that while ‘some of the behaviour was inappropriate, it would never have occurred but for the unfair dismissals by the [r]espondent, particularly the procedural unfairness applied.’ 171
[110] Although it may be true that the behaviour would not have occurred but for the unfair dismissals, this is a wholly inadequate submission. Issues of self-incrimination were not raised. 172 The applicants are responsible for their behaviour, which is considered below.
[111] The applicants’ initial written submissions and final closing submissions made no attempt to maintain the weak arguments raised by the applicants in opposition to the Board and interim CEO. Those weak arguments were not put in the witness statements, and when the applicants, such as Ms Harvey, were cross-examined on them, they were not sustained. 173
[112] Counsel for the applicants submitted that ‘[t]here wasn't any conspiracy to conduct these things, but they were done by - when I say they were done, they were done by people within that group’, 174 but that was not the evidence, including from the applicants.
[113] Under cross-examination, Ms Harvey agreed that they all acted together and ‘in cahoots’ in relation to these matters, 175 which included Ms Ellis as Ms Harvey said she was ‘in constant contact’ with her, ‘and other members of the Executive Leadership Team’.176 Ms Harvey also said they were ‘a team’ and all ‘equally culpable’.177 Ms Ellis gave similar evidence and said that they ‘worked together’, and the applicants were equally responsible for the actions taken.178 The applicants worked together as a team on these and other actions, and Ms Ellis was heavily involved.179 Mr Finn agreed that the five applicants were equally responsible for the actions, which included reinstating IT access, removing the Board’s access, contacting banks, sending correspondence to stakeholders, continuing salary payments to the applicants and not processing terminations, standing down Mr Morgan, padlocking the boardroom, changing locks, directions to staff that they remained in charge, and the closure of GEGAC on certain days.180 Mr Finn also gave evidence about the insertion of additional involuntary termination clauses in the applicants’ contracts for $100,000, and he said he told Ms Ellis about it, possibly that night.181 I am prepared to accept the evidence of Ms Harvey, Ms Ellis, and Mr Finn in relation to the issue of joint conduct and joint responsibility.
[114] I find that they acted together in a systematic way as a group, and are equally culpable, including Ms Ellis, for nearly all the following actions that I find occurred. In any event, there was strong evidence for individual actions in each case, some of which is recorded below, and leads me to the same conclusion.
[115] I find that the applicant denials on this issue whilst giving evidence were largely not credible, including that of Ms Patten. 182 Ms Patten may be correct to some degree in that she was less involved in some matters than others, but she was overall part of a decision making group of the applicants who coordinated and acted together, and supported actions taken. Her name is on much of the joint correspondence, and there is no sign that she disassociated herself from the joint actions. In fact, she herself sent correspondence, such as a text to ‘DHHS (main funder)’ on 16 July 2018, which gave an ‘update’ on developments.183 She had a degree of personal responsibility by acting as part of a group. The only thing she specifically admitted to was sending an email to Mr Morgan standing him down, perhaps given the existence of a copy of her email, in which she tells him that ‘GEGAC has decided to stand you down … pending a full investigation.’184
[116] Ms Harvey similarly sought to disassociate herself from some of the actions in part, 185 but she signed much of the correspondence and did not disassociate herself from various actions at the time. She was, on her own evidence quoted above, part of the group that acted ‘in cahoots’.
[117] A number of the allegations are serious in nature, and I have had regard to the statement of Dixon J in Briginshaw v Briginshaw:
‘Fortunately… at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.’ 186
[118] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the High Court said per Mason CJ, Brennan, Deane and Gaudron JJ:
‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…”’ 187 (footnotes omitted)
[119] The respondent alleged that each of the applicants arranged for email, IT and security access to be reinstated so as to facilitate them in sending numerous unauthorised emails and purporting to direct staff. 188 I find that they did this. A letter to IT from all the applicants, other than Ms Ellis, dated 11 July 2018, instructed IT to ‘reinstate all services’ for those applicants.189 There was no authority from Mr Morgan or the Board to do this.
[120] The respondent alleged that the applicants arranged for the email, mobile telephone, IT access and security/site access of the Board of GEGAC, and Board support staff including Ms Ray, Mr Morgan, and Mr Blackie, including their remote access, to be removed. These unauthorised and unlawful actions prevented those people from accessing GEGAC’s operating system, and prevented communication with staff, clients and stakeholders. 190 I find that they did this. For example, an email signed by Mr Oestmann, Ms Patten, Mr Finn and Ms Harvey, dated 11 July 2018, directed IT to ‘suspend all services for Mr Peter Blackie’,191 and an email signed by Ms Patten, dated 11 July 2018, directed Help Desk to ‘suspend all employee remote access for Adrian Morgan’.192 There was no authority from Mr Morgan or the Board to do this.
[121] The respondent alleged that they made unapproved contact with GEGAC’s bank, Westpac Banking Corporation, seeking to prevent GEGAC from transacting business on GEGAC’s accounts without the former leadership team’s approval and so as to deny GEGAC proper access to its funds. 193 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[122] The respondent alleged that they sent unauthorised correspondence to stakeholders, clearly seeking to undermine the effective control and governance of GEGAC. 194 I find that they did this. For example, an email from the ‘Executive Leadership Team’, dated 11 July 2018, to stakeholders advised them that they dispute the directions provided by the Board to GEGAC employees.195 There was no authority from Mr Morgan or the Board to do this.
[123] The respondent alleged that they directed GEGAC payroll. 196 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[124] The respondent alleged that they attempted to remove and disrupt Mr Morgan from his engagement and stop payment of his remuneration. 197 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[125] The respondent alleged that they prevented the Board, Board support staff, the CEO and senior employees from accessing GEGAC premises by padlocking and chaining the Board Room and surrounding office area, arranging for the Board Room and office locks to be rekeyed off the master system, and swapping the lock barrels for the IT office and server room. This prevented physical access to documents, records, and systems necessary for GEGAC’s proper operation governance. 198 Some of the details of what actually happened were perhaps unclear but the substance of the allegations was correct. For example, Mr Finn received advice from Mr Hinde of IT on 12 July 2018 that ‘as discussed’ he had ‘swapped the lock barrel from the server room door with the lock barrel of the front door of the IT office.’199 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[126] The respondent alleged that they directed all GEGAC staff and created confusion by sending communications advising that the former Executive Team were in control and that staff should not follow the COM or directions from the Board. 200 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[127] The respondent alleged that they directed, without authority, IT personnel to leave GEGAC on 12 July 2018 and to not take instructions from the Board or Mr Morgan, clearly in an effort to prevent those persons from having their IT and security accesses reinstated compounding the earlier unlawful removal of those accesses. 201 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[128] The respondent alleged that they directed, without authority, all GEGAC staff to leave work early on 13 July 2018. 202 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[129] The respondent alleged that they had access to GEGAC files and were seen removing boxes of documents by staff, which is likely to have included GEGAC’s confidential information. 203 I find that they did this. There was no authority from Mr Morgan or the Board to do this.
[130] Some of this may have a criminal element, but it is not the function of the Commission to determine whether or not criminal actions occurred. However, unauthorised actions to the financial benefit of the applicants were taken by them, which included Ms Harvey arranging to insert a clause into the applicants’ employment contracts to provide a generous severance benefit on 11 July 2018, 204 and also significant pay increases. Ms Patten, Mr Finn, Mr Oestmann and Ms Harvey apparently signed the new contracts,205 and Ms Harvey directed payroll to apply the remuneration increases.206 There was no authority from Mr Morgan or the Board to do this.
[131] Mr Finn sought to justify the pay increase by reference to past discussions he had with Mr Brown on or around May or June 2018. 207 He said Ms Patten and Ms Harvey were present during these discussions. He said that the termination payment clause was the result of a meeting on 11 July 2018 between him, Ms Harvey, Mr Oestmann, and Ms Patten, which Mr Brown agreed to and approved.208 Ms Harvey gave similar evidence on the pay increase and termination payment,209 as did Mr Oestmann.210 However, both the increases and the termination payment clause were applied after the terminations on 9 July 2018, and were not authorised by the interim CEO or the Board. Even if the evidence is accepted, any prudent person would have known that the transfer of employer monies by managers to themselves requires particular care, and the transfers should be transparent and above board. These payments were neither. The CEO and the Board should have been advised of the applicants’ pay increases and new contractual clause in order to ensure transparency and remove all doubt about authority. This was not done. The remuneration increase and the termination payment were at best arguably unauthorised and highly questionable, or at worst financial misappropriation. It is not responsible behaviour for a manager to assist in the organisation of such personal benefits in the circumstances. The applicants would have known this yet acted as they did, which is inappropriate. In any event, I had the opportunity to observe the applicants giving evidence, and I am reluctant to rely on such evidence from the applicants, which is, in my view, self-serving and not reliable.
[132] Mr Oestmann arranged to have Ms Ellis’ WorkCover claim accepted although she had been dismissed. 211 There was no authority from Mr Morgan or the Board to do this.
[133] Even taken at its highest, the applicants’ arguments justifying their conduct do not justify the misappropriation of public funds by Ms Harvey, Mr Oestmann, Ms Patten, and Mr Finn, and with the apparent involvement of Ms Ellis, for their own personal benefit. This is a gross breach of trust.
[134] These are significant matters, which I will take into account in determining remedy.
[135] Should an order of compensation be made? An order of compensation is not automatic but a discretionary one. As a Full Bench of the Commission said in Nguyen v Vietnamese Community in Australia:
‘[9] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. No party in the proceedings at first instance suggested that his Honour exercise his discretion not to order a remedy at all. Indeed the Respondent was not opposed to an appropriate amount of compensation being awarded. It is implicit from his Honour’s decision that he concluded that a remedy was appropriate in the circumstances, the issue became the form of the remedy.’ 212
[136] I have decided that it is not appropriate to make an order of compensation in this case. This would be a rare decision to make, but it is justified in the unusual circumstances of this case. Even if I decide to make an order and apply the factors in s.392(2) of the Act in the alternative, the result is the same. In Haigh v Bradken Resources Pty Ltd, the Commission said:
‘[10] The frequently quoted case on compensation calculations is Sprigg v Paul Licensed Festival Supermarket in which a Full Bench of the Australian Industrial Relations Commission (AIRC) confirmed the following steps in determining compensation under the unfair dismissal provisions of the Workplace Relations Act:
“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,
2. Deduct monies earned since termination,
3. Deductions for contingencies,
4. Calculate any impact of taxation,
5. Apply the legislative cap.”
[11] The legislation has been amended since that time by permitting a reduction in an amount otherwise payable if an employee’s misconduct contributed to the employers decision to dismiss. The Full Bench decision in Sprigg has also been the subject of comment by other Full benches. In Smith v Moore Paragon a Full Bench of the AIRC said:
“COMMENT IN RELATION TO THE GUIDELINES IN SPRIGG
[32] It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s.170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s.170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers “appropriate” having regard to all the circumstances of the case including the matters set out in s.170CH(2). Section 170CH(6) confers a general discretion “if the Commission considers it appropriate in all the circumstances of the case” to “make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement” subject to the Commission having regard “to all the circumstances of the case including” the matters listed in s.170CH(7) - the same list of matters set out in s.170CH(2) - and subject also to the `cap’ provided for in s.170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard “to all the circumstances of the case” including the matters listed in s.170CH(7) and subject to the `cap’ provided for in s.170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic.”’ 213 (footnotes omitted)
[137] Section 392(2) of the Act provides:
‘Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.’
[138] In relation to s.392(2)(a), no claim was made by the respondent that an order of compensation would affect the viability of the employer’s enterprise, and I find that it would not. In relation to s.392(2)(b), the length of service was set out in Exhibit G2, which I adopt. In relation to s.392(2)(c), the amount the applicants would have received if their employment had not been terminated, I note the applicants’ submission that the conduct would not have occurred but for the unfair dismissals. However, there was clearly conflict between the applicants, the interim CEO and the Board, and it is highly unlikely that their employment would have continued beyond another three months given the degree of disagreement already outlined earlier.
[139] In relation to s.392(2)(d), I have taken into account the ‘Parties Joint Statement of Agreed Facts’ (Joint Statement) and other material. 214 In relation to s.392(2)(e) and (f), the amount of remuneration earned or likely to be earned, this is set out in the Joint Statement,215 and I have taken this into account. In relation to s.392(2)(g), I have taken all relevant matters into account.
[140] In relation to s.392(3), there was a significant amount of misconduct on the part of the applicants. I have dealt with this earlier. However, in summary, even though I have found that the applicants were the subject of an unfair dismissal, the attempt to then improperly and without authorisation gain significant personal financial advantage from GEGAC funds is particularly inappropriate, and I refuse to condone such behaviour. In the case of Ms Ellis, she helped to arrange the misconduct overall. Some of the other actions, including directions regarding bank accounts and cutting off Board access, are also inappropriate. Such actions are not justified by weak arguments and alleged belief in those weak arguments about the powers of the Board. The applicants have showed only limited contrition or remorse. The finding that they were unfairly dismissed is a sufficient remedy.
[141] This is not an unprecedented determination, and a similar decision was considered by a Full Bench in Kable v Bozelle, Michael Keith. 216
[142] Given my conclusions, I will not issue an order.
DEPUTY PRESIDENT
Appearances:
W Barker of counsel for the applicants.
A Galbraith of counsel for the respondent.
Hearing details:
2018.
Melbourne:
November 19 to 22.
Final written submissions:
Applicant: 11 January 2019
Respondent: 12 February 2019
Applicant in reply: 22 February 2019
Printed by authority of the Commonwealth Government Printer
<PR705626>
1 Transcript PN570-577.
2 Exhibit G2.
3 Exhibit E1, 6-7 [26]-[27].
4 Ibid, Annexure BE-3.
5 Ibid, Annexure BE-4.
6 Ibid, 8 [36].
7 Ibid, 6-7 [26]-[27].
8 (1994) 122 ALR 333, 355.
9 Exhibit R1, Annexures TR-21, TR-24, TR-25 and TR-26.
10 Ibid, Annexure TR-36.
11 Ibid.
12 Ibid, Annexure TR-42.
13 Exhibit L1, Annexures ML-3, ML-4, ML-5, ML-6 and ML-7.
14 Applicants’ Closing Submissions, 11 January 2019, 4 [19]-[20].
15 Ibid, 5 [22].
16 Ibid, 1-3 [3]-[13].
17 For example, see transcript PN338-411.
18 Transcript PN5790-5795 and Respondent’s Final Closing Submissions, 12 February 2019, 17-18 [62].
19 (1984) 5 FCR 447, 457-458.
20 Print N6999.
22 (1994) 122 ALR 333, 355.
24 Respondent’s Final Closing Submissions, 12 February 2019, 1.
25 Applicants’ Reply to Respondent’s Closing Submissions, 22 February 2019, 3-4 [20].
26 Exhibit E2, 4-5 [17].
27 Respondent’s Final Closing Submissions, 12 February 2019, 29-30 [136].
28 Ibid, 30-31 [137]-[143].
29 Exhibit AM1.
30 Exhibit R1.
31 Transcript PN2005-2045.
32 Transcript PN5507-5509.
33 Exhibit AM1, Annexure AM-8.
34 Ibid, Annexure AM-10.
35 Ibid, 15 [86]-[87].
36 Ibid, 23 [130].
37 Exhibit R1, 18 [107].
38 Ibid, 25 [152].
39 Ibid, 26-27 [158].
40 Ibid, 30 [170].
41 Ibid, 31 [177]-[182].
42 Exhibit AM1, 16 [91] and Annexure AM-10.
43 Transcript PN2000-2046.
44 Ibid, 13 [72].
45 Exhibit R1, 14 [84], 18 [109], 19 [116] and 31 [177]-[182].
46 Exhibit L1, 6-7 [15]-[23].
47 Exhibit AM1, 14 [78].
48 Ibid, 16 [91].
49 Ibid, 23 [129].
50 Ibid, 24 [135].
51 Ibid, 11-12 [65]-[67].
52 Ibid, 13 [72]-[73].
53 Ibid, 13-14 [74]-[79].
54 Ibid, 18-21 [103]-[114].
55 Ibid, 23-24 [127]-[135].
56 Exhibit R1, 19 [116], 21 [125]-[129], 22-23 [134]-[138] and 23-31 [140]-[182].
57 Transcript PN1841.
58 Transcript PN1847-1848.
59 Exhibit R1, 19 [116].
60 Exhibit AM1, 7-14 [48]-[79].
61 Ibid, 14-21 [80]-[117].
62 Transcript PN5523-5524.
63 Transcript PN5525.
64 Exhibit AM1, 11-12 [65]-[67].
65 Ibid, 13 [71].
66 Ibid, 14 [78].
67 Ibid, 14 [81].
68 Ibid, 14-15 [82]-[83].
69 Ibid, 15 [86].
70 Ibid, 15-16 [88]-[91].
71 Ibid, 16 [91].
72 Ibid, 17 [92].
73 Ibid, 18 [98]-[102].
74 Ibid, 18 [103].
75 Ibid, 21 [115]-[117].
76 Ibid, 22 [122] and Annexure AM-14.
77 Ibid, 23 [126].
78 Ibid, 23 [127].
79 Ibid, 24 [132].
80 Exhibit B1, 3-4 [18]-[19].
81 Ibid, 10 [77].
82 Ibid.
83 Ibid, 10-11 [75]-[80].
84 Ibid, 2 [9].
85 Transcript PN4836-4837.
86 Exhibit AM1, 25 [138].
87 Exhibit E2, 10 [48].
88 Exhibit R1, 2 [11].
89 Exhibit E2, 11 [60].
90 Exhibit R1, 14 [82].
91 Exhibit E2, 11 [61].
92 Exhibit R1, 14 [84].
93 Exhibit E2, 11 [61].
94 Exhibit R1, 14 [84].
95 Exhibit E2, 11 [62].
96 Exhibit R1, 14-15 [86].
97 Exhibit E2, 12 [64].
98 Exhibit R1, 17 [102].
99 Exhibit E2, 12 [66].
100 Exhibit R1, 18 [109].
101 Exhibit E2, 12 [67].
102 Exhibit R1, 18 [110].
103 Exhibit E2, 13 [69].
104 Exhibit R1, 19 [116].
105 Exhibit E2, 13 [70].
106 Exhibit R1, 21 [129].
107 Exhibit E2, 13 [72].
108 Exhibit R1, 24 [142].
109 Exhibit E2, 13[75].
110 Exhibit R1, 25 [152].
111 Exhibit E2, 13 [77].
112 Exhibit R1, 26 [154].
113 Exhibit E2, 14 [79].
114 Exhibit R1, 27 [164].
115 Exhibit E2, 14 [81].
116 Exhibit R1, 31 [177]-[178].
117 Exhibit E2, 14 [85].
118 Exhibit R1, 34 [199].
119 Ibid, 24 [142].
120 Applicants’ Closing Submissions, 11 January 2018, 7 [36].
121 Respondent’s Final Closing Submissions, 12 February 2019, 31 [145].
122 Exhibit AM1, 26 [145].
123 Exhibit AM1, 26 [142]-[145].
124 Transcript PN2060-2066.
125 Transcript PN4262.
126 Exhibit AM1, 26-27 [147]-[148].
127 Ibid, 27 [148].
128 Ibid.
129 Transcript PN5604.
130 Exhibit M2, 1-2 [5]-[6].
131 Exhibit B1, 5 [29]-[30], 7 [49] and 10 [70]-[74].
132 Exhibit R1, 32-33 [189].
133 Exhibit M2, 1-3 [2]-[17].
134 Respondent’s Final Closing Submissions, 12 February 2019, 33-34 [154]-[160].
135 Exhibit AM1, 7-9 [48]-[55], 10-11 [63] and 17-18 [97].
136 Exhibit R1, 17-18 [99]-[111].
137 Exhibit H2, 1-2 [3].
138 Exhibit AM1, 28-29 [161].
139 Exhibit R1, Annexure TR-23.
140 Transcript PN2624.
141 Transcript PN2649.
142 Transcript PN2655-2667.
143 Transcript PN900-911.
144 Exhibit AM1, 28-30 [161]-[168].
145 Ibid, 29 [163].
146 Ibid, 29 [165].
147 Ibid, 29 [165]-[166].
148 Ibid, 28 [156]-[157].
149 Exhibit H1, 10-11 [65]-[67].
150 Exhibit O1, 5-6 [22]-[27].
151 Exhibit AM1, Annexure AM-21.
152 Ibid, Annexure AM-25.
153 Transcript PN931-932.
154 Transcript PN2646-2648.
155 Respondent’s Final Closing Submissions, 12 February 2019, 32-33 [149]-[152].
156 Exhibit AM1, 8 [52].
157 Ibid, 7-8 [48]-[53].
158 Ibid, 14 [81].
159 Exhibit R1, 25 [149]-[152].
160 Respondent’s Final Closing Submissions, 12 February 2019, 34-35 [161]-165].
161 Exhibit AM1, 29 [165].
162 Transcript PN2646-2648.
163 Print S2679.
164 Respondent’s Final Closing Submissions, 12 February 2019, 37 [181].
165 Exhibit AM1, 29 [165].
166 Ibid, 25 [138].
167 Print S5897.
168 Exhibit AM1, 27 [149].
169 Respondent’s Final Closing Submissions, 12 February 2019, 38 [186]-[188].
170 Transcript PN570-577.
171 Applicants’ Closing Submissions, 11 January 2019, 19 [127].
172 Cornwell v The Queen (2007) 231 CLR 260.
173 For example, see transcript PN771-813.
174 Transcript PN329.
175 Transcript PN979 and PN1311-1312.
176 Transcript PN1420-1421.
177 Transcript PN1422-1425.
178 Transcript PN2271-2272.
179 Exhibit G10.
180 Transcript PN4489-4508.
181 Transcript PN4516-4521.
182 Exhibit P1, 11-12 [64].
183 Exhibit AM1, Annexure AM-85.
184 Ibid, 38 [212] and Annexure AM-38.
185 Exhibit H1, 17 [118].
186 (1938) 60 CLR 336, 361-362.
187 (1992) 110 ALR 449, 449-450.
188 Exhibit AM1, 32 [179], 35-37 [202]-[205], 37 [208], 39 [217] and 43 [236], and Annexures AM-30, AM-31, AM-34 and AM-43; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
189 Exhibit AM1, Annexure AM-30.
190 Ibid, 32 [179], 35-37 [202]-[206], 37-38 [208], 38 [211], 39 [217], 45 [245] and 45-47 [248]-[257], and Annexures AM-30, AM-31, AM-32, AM-34, AM-37, AM-43, AM-55, AM-62, AM-65 and AM-74; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
191 Ibid, Annexure AM-32.
192 Ibid, Annexure AM-37.
193 Ibid, 38 [209] and Annexure AM-35; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
194 Ibid, 35-37 [202]-[205], 39 [215] and 39-40 [218], and Annexures AM-30, AM-31, AM-40, AM-44 and AM-61; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
195 Ibid, Annexure AM-44.
196 Ibid, 39 [216], 41 [223] and 46 [249], and Annexures AM-42, AM-48 and AM-66; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
197 Ibid, 35-37 [202]-[205], 38 [212], 42 [230], 43 [233] and 44 [241], and Annexures AM-30, AM-31, AM-37, AM-38, AM-48 and AM-58; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
198 Ibid, 43-44 [238], 46 [253] and 48 [261], and Annexures AM-56, AM-70 and AM-78; Exhibit R1, 44 [255]-[256] and Annexure TR-39.
199 Ibid, Annexure AM-78.
200 Ibid, 47-48 [259] and Annexure AM-76.
201 Ibid.
202 Ibid, 47 [254]-[255] and 48 [262], and Annexures AM-71 and AM-72; Exhibit I1, 9 [47].
203 Exhibit R1, [255]-[256] and Annexure TR-39.
204 Exhibit AM1, 40 [220]; Exhibit I1, 7 [37] and Annexure MI-9.
205 Ibid, 42 [229] and 45 [246], and Annexures AM-54 and AM-63.
206 Ibid, 54 [291] and Annexure AM-98; Exhibit L1, 2 [12] and Annexure ML-2.
207 Exhibit M1, 7-8 [41]-[44].
208 Ibid, 11 [65]-[66].
209 Exhibit H1, 8-9 [45]-[47] and 13-14 [83]-[93].
210 Exhibit O1, 9 [51]-[53].
211 Exhibit AM1, 40 [219] and 46 [251], and Annexure AM-68.
214 Transcript PN1820-1823, PN2388-2391 and PN3834-3843.
215 Ibid, 2 [2].