[2010] FWA 7704

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FAIR WORK AUSTRALIA

DECISION

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

Mr Philip Hillbrick
v
Marshall Lethlean Industries Pty Ltd
(U2009/11679)

COMMISSIONER CRIBB

MELBOURNE, 15 OCTOBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr Philip Hillbrick (the applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Marshall Lethlean Industries Pty Ltd (the respondent) was harsh, unjust and unreasonable. The applicant is seeking a remedy in respect of his dismissal.

[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. The hearing took place on 22 and 23 April 2010 with written final submissions by the parties on 5 and 10 May 2010 respectively.

[3] The applicant was represented by Ms A Duffy, of counsel, and the respondent by Mr R Millar, of counsel.

BACKGROUND

[4] In this matter, it is useful to set out a brief chronology of events.

THE EVIDENCE

APPLICANT

[5] The applicant confirmed that, from approximately the end of 2007, he was Team Leader and the most experienced tradesman working with the respondent. 7 He agreed that it was his responsibility to sign off work but said that a lot of the time he could not do it because he was working inside a tank and did not know what was going on outside.8 The applicant stated that he would sign off on his own jobs and that he had never refused to sign work off.9 It was agreed that carrying out proper checks on tankers, before they were returned to customers was vital.10

Warnings

[6] Mr Hillbrick was questioned about a number of warnings he had received. He confirmed that he received counselling regarding making racist remarks on 12 September 2007. 11 He said that he was given a first written warning on 3 September 2008 regarding an alleged failure to correctly tension a disc brake booster. The applicant confirmed that he had not provided a response to the allegations.12 It was agreed that he had also received a first written warning on 15 April 2009 for not following the procedures for signing off work orders. The applicant recalled that his response, at the time, had been that there was too much on in terms of there being no foreman outside to give direction and that the responsibility had fallen onto his shoulders.13 It was stated that shortly after the incident, the company had employed a foreman.14

[7] The applicant insisted that he was never given a copy of any of the warnings. He said that the company read him out the warnings and that he was so “flabbergasted” that he could not respond. 15 It was the applicant’s recollection that the company “virtually shoved it [the record of interview of 15 April 2009] in my face and said ‘Here, sign this’”.16 Mr Hillbrick denied that he was even told that his continued employment depended on him getting no further warnings. He stated, also, that he had signed the first written warning under pressure.17

[8] In response to a question that, as Team Leader, it was his responsibility to guide other employees, the applicant said:

[9] With respect to the counselling interview on 9 August 2009, regarding housekeeping, the applicant said that he had responded and that he had signed it under pressure. He stated that he had not been told that it could lead to termination. 19

Hydrostatic testing

[10] Mr Hillbrick recalled a meeting between management and himself in July 2009 about hydro testing. He stated that there was no work procedure on hydro testing and that:

[11] Mr Hillbrick agreed that it was vital that tanks were hydro tested before being returned to the customer and that they were supposed to 21 but also said:

[12] He denied cutting corners to get the job out. 23 When it was put to the applicant that management had never told him not to worry about testing, just to get the job out, he said that Mr Curatolo had told him this on many occasions - the most recent one being the tank that he had received a warning for shortly before he was terminated.24 He also said that he knew that the hydro testing should be done but that when the boss told him to get the job out, he just had to do that.25

Toll tanker

[13] In terms of the incident that resulted in the final written warning, it was the applicant’s evidence that the Toll tanker’s tanks had been hydro tested but that that he had not been there when it had been done. He stated that he had started work at 7.00 am that day and that, at 11.00 pm, he had told Mr Issom that the tank should be hydro tested, that he did not feel well and that he had to go home. 26 He recalled Mr Issom’s response being “We'll just let the tank go then.”27

[14] The applicant denied that he had told Mr Issom that all work was completed on the tanker. 28 He also said that he had not signed the work off because it was not finished. The applicant stated that he had never told Mr Issom that the hydro testing had been done. He agreed that it had not been done.29

[15] During the meeting on 6 August 2009 to discuss what had happened with the Toll tanker, the applicant recalled responding to the allegation by saying that he had not felt well and so could not do the hydro testing. He said that he was flabbergasted that he was being given a final warning whilst the other two employees were given counselling. 30

[16] The applicant stated that he had not been told, at the meeting on 6 August 2009, that if there was further misconduct, he would be dismissed. He recalled that, if he had have known, he would have done something about it otherwise he would have been terminated. It was the applicant’s evidence that he did not know that it was a final warning. 31 He also said that he was not given a copy of the Record of Interview for the meeting on 6 August 2009.32

STT Bitumen tanker - 12 August 2009

[17] It was confirmed by Mr Hillbrick that, on 12 August 2009, he was issued by Mr Issom with an Report Order (RO) to service a Bitumen tanker. The applicant stated that he told Mr Issom that there was a major air leak in the tank and that he had pulled some fittings off to change them. He recalled asking Mr Issom to get him some new fittings so that he could finish the service. Mr Issom had responded that he would get them later. He recalled telling Mr Issom that the job was not finished but that, if he gave him the fittings he could finish the job off, do the wheel bearings and sign off. 33 The applicant said that he had been moved to another job and so did not get time to finish the service. He stated that he could not do the wheel bearings because the airlines had been disconnected.34 It was his recollection that someone was put on the job in his place.

[18] In terms of the driver request form for the STT truck, the applicant was questioned about which entries were his. He said that he had not signed off on the job and that he had told Mr Issom that the job was not finished. 35 Mr Hillbrick gave evidence that, as he did not get to finish the job on the tanker, he would not have ticked off “check wheel bearings” on the sheet. It was stated that Mr Issom had not checked the work but that another employee had.

Scott’s Transport tanker - 13 August 2009

[19] It was confirmed by the applicant that, on 13 August 2009, Mr Issom had shown him the driver request form (RO) and he had read the description “Leak in comp 4 to com 5, maybe bulkhead?”. He said that, at that point in time, that was all that was written on the repair order. It was recalled that, when Mr Issom had given him the job he had told him that this was his next job and that he needed to have a look at the repair order and then do it. Mr Hillbrick denied Mr Issom had expressly told him what work was to be done. 36

[20] Mr Hillbrick stated that he had undertaken an air test of compartment 5 of the tanker, found a leak, thought that that was the leak, and repaired it. The applicant then re-air tested the compartments but did not hydrostatic test it. It was recalled that he had checked the sealing ring on compartment 4. 37 He indicated that he had been told that the client wanted to pick up the tanker at 5.00 pm and that he had finished repairing it at about 4.00 pm.

[21] Mr Hillbrick denied that Mr Issom had specifically asked him if he had done the hydro testing and checked compartment 5. He said that hydro testing had not been done on either compartments and added “why would I state that I had when I hadn’t?” 38 The applicant also denied that Mr Issom had asked him whether he had checked compartment 4 and that he had said that he had.39 It was agreed by the applicant that the hydro testing should have been done on both compartments but he said that he had told Mr Issom that he had “found the leak, repaired it. It should have a hydro but what do you want to do? They want to pick it up at 5 o'clock.” 40 He recalled Mr Issom’s response as being that the work is finished, the tanker will be sent out and that he could go home.41 He said that he had tested the bulkheads only of compartments 4 and 5 and that proper procedures should have been followed but there had not been time. The applicant stated that he had recorded the air test on his work sheet.42

[22] With respect to the repair order form (RO) for the Scott’s tanker, the applicant confirmed that it correctly recorded that the crack in the bulkhead was cleaned, ground and MIG welded shut. However, he was doubtful regarding the undercarriage. Mr Hillbrick said that he did not know who had written this on the form. 43 He believed that some of the information on the form had not come from him and that it had been filled in later.44

[23] Mr Hillbrick agreed that, when the Scott tanker was subsequently returned, he had found a leak in compartment 4. 45

Monday 17 August 2009

[24] On Monday 17 August 2009, it was stated by the applicant that he was told that the Scott’s tank was still leaking and that it was coming back and he needed to find out what the problem was and fix it. He did not recall having a discussion about the issue. 46 The applicant recalled explaining to Mr Issom that he had found a leak in compartment 5 but that, obviously, there was a leak somewhere else. He did not know whether it was accepted or not.47 He recalled that he had told Mr Issom that he had checked the sealing ring but that it was not leaking. He had then found the leak and repaired it.48

Meeting on 18 August 2009

[25] There was a meeting between the applicant, Mr Ford and Mr Issom on Tuesday 18 August 2009. It was the applicant’s evidence that he was told that a leaky tanker had been sent back out on the road which was unacceptable. He had then been terminated and had not been given an opportunity to respond. 49 It was agreed that the issue with the Scott’s tanker was discussed but not the STT Bitumen truck bearings. He said that he had not given his version of events because he had been sacked.50

[26] The applicant confirmed that, during the meeting on 18 August 2009, he was given a termination statement which he threw away. He also indicated that he had refused to sign the paperwork he had been given but had signed off in a diary that he had returned keys, overalls etc. 51

[27] It was recounted by the applicant that he had undergone surgery on 17 November 2009 and was fit to resume work around 10 February 2010. The applicant stated that his doctor had told him that, prior to his surgery, it was not worthwhile applying for positions as he would not pass a medical for a new position due to his health condition. 52 His doctor, however, had not told him that he could not continue to work with the respondent prior to the surgery.53 Mr Hillbrick indicated that he found employment shortly after he was cleared by his doctor.54

MR FORD

[28] Mr Ford was employed by the respondent as Workshop Manager from 13 October 2008 until 20 November 2009. 55 Mr Issom, as Workshop Supervisor, reported to Mr Ford, who, in turn, reported to Mr Curatolo, National Service Manager.56

[29] It was Mr Ford’s evidence that hydro testing was not always done before a job was released to the customer. He said that he had tried to ensure that the procedure regarding hydro testing was followed. However, it was indicated that, when a job needed to be sent out, it was sent out regardless of whether all of the tests had been completed. 57

[30] It was Mr Ford’s evidence that Mr Curatolo had a “rush, rush, rush attitude” and that he would go around him to get jobs out. 58 He conceded that the applicant would have received mixed messages regarding procedures including hydro testing of tanks, as Mr Curatolo was not implementing them himself nor ensuring that the employees did.59

[31] It was recalled that, in April 2009, he had gone to Mr Curatolo and said that he did not think the applicant was performing the role of Team Leader properly or that he was coping with it. Mr Ford stated that the applicant had not been happy when he was asked to train employees. It was his assessment that the applicant was not undertaking a full Team Leader’s role. However, the applicant could always be depended on to get the job done. 60 He stated that Mr Curatolo had then given him a directive - “We need to be on top of it and do it correctly but scrutinise every little bit of work that he does”.61 Mr Ford said that Mr Curatolo had also told him they needed to get the applicant out by any means.62 By that, Mr Ford said that he understood that they had to watch everything that the applicant did.63 It was Mr Ford’s evidence that the other employees who had been warned or terminated had not been as closely scrutinised as the applicant.64

[32] Mr Ford indicated that he believed that the applicant had respected him and he said that he had always paid the applicant his due in terms of his knowledge of the industry. He said that the applicant and Mr Issom had probably clashed from the beginning. Mr Ford explained that he had brought Mr Issom into the company in order to implement change. In early 2009, the company moved into new premises and Mr Issom and he wanted to prove to “head office” that Dandenong could be run efficiently and effectively. Consequently, he and Mr Issom had decided that the attitude of the employees needed to change as a lot of them were below par. 65 Subsequently, a number of employees received warnings.66

Toll tanker

[33] With respect to the final written warning given to the applicant on 6 August 2009, it was recalled by Mr Ford that the applicant did not respond. He stated that, although he had signed the warning, it had been Mr Curatolo’s decision as he was the person who said “yea or nay”. 67 Mr Ford was of the view that the warning was in regard to the Toll job and related to the pipework underneath the tank rather than hydrostatic testing. It was his recollection that the vessel had been hydro tested.68 Mr Ford also said that the requirement to hydro test was not written down in the procedures but was something that Mr Issom and he were trying to implement in order to improve the quality of work.69

Scott’s Transport tanker

[34] Mr Ford indicated that a further incident occurred about a week later related to the Scott’s tanker. He recalled that the applicant had hydro tested compartments 4 and 5 but not between compartments 3 and 4. It was stated that the procedure was for hydro testing to be undertaken only after repairs. Mr Ford said that if the applicant had not undertaken any repairs on compartments 3 and 4, there would be no need to hydro test them. 70 It was his view that whoever had been working on the tanker at the time should have hydrostatically tested it. Mr Ford said that Mr Hillbrick had failed to follow the procedures.71 He denied telling Mr Curatolo that he wanted to sack the applicant over the incident.72

Applicant’s dismissal

[35] It was Mr Ford’s recollection that the applicant’s termination resulted from his failure to follow procedures ie. read the RO, with respect to the Scott’s tanker. He said that he understood that the applicant who “had experienced the old culture, would have difficulty with what we were trying to bring in.” 73 Mr Ford recalled that, when he told Mr Curatolo about the Scott’s tanker, Mr Curatolo had directed him to terminate the applicant. He recalled Mr Curatolo saying “we’ve got him”74 Mr Ford indicated that it had been his suggestion to Mr Curatolo that the applicant be given another warning. Mr Ford said that he had not argued against Mr Curatolo’s decision to terminate the applicant.75

[36] Mr Ford confirmed that he was advised by Mr Curatolo on Monday 17 August 2009 that the Scott’s tanker leak had not been fixed properly. He could not recall whether or not he had spoken personally to the applicant about it. 76

[37] During the meeting with the applicant on 18 August 2009, it was Mr Ford’s recollection that he did not allow the applicant to explain what had happened. This was because he had been given a directive by Mr Curatolo to terminate the applicant. It was stated that the termination letter had been typed up prior to the meeting. 77

[38] It was confirmed by Mr Ford that, at the time he wrote his witness statement, he had an unfair dismissal claim against the company. In his claim, he alleged that Mr Curatolo had engaged in unreasonable conduct and harassment towards him

MR YEOMAN

[39] Mr Yeoman was summonsed, at the request of the applicant, to appear. He is a current employee of the respondent.

[40] It was Mr Yeoman’s evidence that, a couple of weeks after the applicant’s dismissal, Mr Curatolo had asked him if he was aware that hydro testing was required on all repairs. He had replied that he was not. Mr Curatolo had then told him that that was what he wanted done. Mr Yeoman said that, prior to this conversation, hydro testing was done when they were told to do it, when it was written on the RO or when they were not sure that an air test would show whether there was still a leak. 78 He confirmed that hydro testing was now done on all repairs.79

RESPONDENT

MR TRAD

[41] Mr Trad is Managing Director of the respondent.

[42] Mr Trad gave evidence that the company employed about 140 permanent employees, 70 of which were in Victoria. It does not have a human resources department. There is a payroll person and she and her supervisor in accounting maintain the personnel files. 80

[43] It was indicated by Mr Trad that he was not at the Laverton site on a daily basis. He confirmed that Mr Curatolo ran the site from day to day. 81

[44] With respect to the Toll and Scott’s incidents, Mr Trad indicated that the complaints had been made about the work that had been performed and not about the applicant specifically. The customers would not have known who had undertaken the work and Mr Trad said he would not hang an employee out to dry when they had done something wrong. 82

[45] Mr Trad gave evidence that he only became involved when someone did the wrong thing, when it was affecting the business or severe disciplinary action or termination had to be to be taken. He recalled that he was telephoned by Mr Ford firstly and then by Mr Curatolo advising him of the applicant’s dismissal. They had both told him that the applicant had been terminated because he did not follow procedures. Mr Trad advised that both Mr Ford and Mr Curatolo had authority to terminate the applicant’s employment. He indicated that Mr Ford had made the decision as that was the first telephone call that he had received. 83

[46] It was recalled by Mr Trad that, during the telephone call with Mr Ford, he asked whether Mr Curatolo was aware/had been informed of the dismissal. The response had been “yes”. Mr Trad had also asked what the problem was and Mr Ford had replied that they did not know. Mr Trad stated that, prior to the applicant’s dismissal, he had not been contacted at all about the issue. 84

MR ISSOM

[47] Mr Issom is Site Supervisor for the respondent and was the applicant’s immediate supervisor.

[48] It was explained by Mr Issom that he had had limited experience with tankers and that he had been brought into the company to provide managerial expertise. Mr Issom stated that he was responsible for the final sign off on jobs to ensure that the job was done, that all parts and hours had been allocated to/entered into the RO’s and that the RO reports were completed. He said that he was responsible for signing off before the job was released. He was also responsible for delegating jobs to the shop floor and the requisitioning of parts. 85 Mr Issom indicated that, most often, he would give the final sign-off on a job after discussion with the applicant. He stated that the applicant was also supposed to sign off as the person who had undertaken the repairs. The applicant would not be asked to sign off on a job that he had not done.86

Scott’s Transport tanker

[49] With respect to the Scott’s Transport job, there was common ground between Mr Issom and the applicant that, at the time Mr Issom had initially talked to him about the job, he had taken the applicant out to the tank, pointed out that there was a leak under the suspension and asked him to fix it (ie. the bulkhead fault). 87 At about 5.00 pm, Mr Issom recalled the applicant saying that he had found a crack in compartment 5. He had asked the applicant whether compartments 4 and 5 had been assessed and checked. He said that he had specifically asked the applicant whether he had done compartment 4 as well and he had replied “yes”.88 Mr Issom said that he took what the applicant had said to mean that compartment 5 had been repaired, compartment 4 had also been checked and/or repaired and that he had finished his work.89 This was on the basis that the RO specified leaking in compartment 4 to compartment 5, maybe the bulkhead?. It was stated that he actually saw the applicant hydro test compartment 5 so had asked him whether he had done compartment 4. Mr Issom said that the implication of his question was whether the applicant had hydro tested compartment 4 but he had not specifically asked him.90 This was because it was part of the process of doing a job.

[50] With respect to the RO for the Scott’s tanker, Mr Issom stated that it had had on it “Leaking in comp 4 to com 5, maybe bulkhead?” when it was given to the applicant. He indicated that, after the job had originally been completed, he had written - conducted hydro leak test and comp 5 tested ok. This was on the basis of what the applicant had told him. 91 It was explained by Mr Issom that the applicant’s signature had not been obtained ie. the signature of the person who had undertaken the work. He confirmed that he had signed the form after the re-repairing of the tanker following its release to the customer. He indicated that the form was filled in with a blue pen when the job was first done. When the tanker was returned, the form was completed in black pen.92

[51] Mr Issom was unaware that it had been the applicant’s evidence that he had not hydro tested compartment 5. He said that he had always assumed that compartment 5 had been tested and finished. He stated that the issue was the lack of testing and repair of compartment 4 where there was actually a leak. 93 He confirmed the applicant’s evidence regarding what he did when the tanker came in. He characterised it as finding the defect but not testing after the repair had been done.94

[52] On being advised, on 17 August 2009, of the problem with the repair of the Scott’s tanker, it was Mr Issom’s evidence that he had asked the applicant as to why compartment 4 was still leaking. 95

Toll tanker

[53] With respect to the Toll tanker incident, Mr Issom indicated that he had not known that all tanks and pipes were to be hydro tested for every customer. He stated that Mr Cox had hydro tested the compartments during the afternoon. 96 However, as he was not aware that the pipes were also required to be hydro tested, Mr Issom said that:

And further:

[54] Mr Issom explained that he had believed that the Toll Tanker job was done as the applicant told him all the work had been completed and so he had made the decision to release it to the driver. 99 He said that, after the tanker had gone, he was informed that he should have hydro’d the pipes and was reprimanded for not doing it.100 He knew that the compartments had been hydro tested.

STT Bitumen tanker

[55] Mr Issom confirmed that the issue with respect to the STT Bitumen tanker was that some work had not been done on the wheel bearings. He did not recall the applicant telling him that he could not complete the job because the airlines needed to be repaired first and he did not have the parts to do this. Mr Issom could also not remember ordering any parts so that the job could be completed. It was confirmed that another employee took over the job and finished it. Mr Issom said that he had brought in another employee to do it because the applicant had not filled out and completed the service sheet. Mr Issom could not recall as to why he had done this. 101

Meeting on 18 August

[56] In terms of the meeting on Tuesday 18 August 2009, Mr Issom explained that he was advised that the applicant was to be dismissed and that he was to take notes during the meeting. He recalled that Mr Ford specified to the applicant the leak in compartment 4/5, that compartment 4 was not done and that the STT bearings had been missed and then told him that he was being terminated. 102 It was said that, when the applicant was given the termination letter, he had pushed it away and refused to sign it. The applicant had then thrown it away so that a second letter had to be issued. Mr Issom recalled the applicant becoming very quiet and defensive as Mr Ford spoke to him. It was Mr Issom’s view that the applicant was given every opportunity to make a comment at any stage.103

[57] Evidence was also given regarding the Australian Institute of Petroleum (AIP) Guidelines and the Australian Standard - AS2809 as the basis for the requirement to hydro testing. Mr Issom also referred to an email that had been sent to a Toll client prior to his commencement with the company. The email specifically referred to Toll but Mr Issom said that it applied to all of their customers’ and that it was mandatory that all pipework on all compartments on all vehicles be hydro tested. 104

MR CURATOLO

[58] Mr Curatolo is the National Service Manager with the respondent and has worked for the respondent for about eight years.

[59] It was confirmed by Mr Curatolo that Mr Ford had spoken to him in April 2009 about his concerns that the applicant was not fulfilling the Team Leader position properly. 105 During cross-examination, Mr Curatolo could not recall a conversation or communication with Mr Ford regarding his concerns over the applicant’s performance as a Team Leader. He could remember a conversation about the applicant and following instructions and procedures.106 It was denied that he had told Mr Ford to sack the applicant or that he had said something similar. He could not recall what his response to Mr Ford’s concerns about the applicant and the Team Leader role had been.107

[60] It was Mr Curatolo’s evidence that, before a job was returned to the customer, the person who did the job signed off the work and the Manager (Mr Issom) did the final sign off of the overall job ie. that the RO was completed and signed by the Team Leader or the Operator. 108

[61] With respect to hydro testing, Mr Curatolo said that it had always been mandatory to hydro test vessels and pipework after the work was completed, not just Toll tankers. He stated that, where necessary, it was always done. 109 It was explained by Mr Curatolo that the procedures regarding mandatory hydro testing were reinforced at a meeting in December 2008, as there were a number of new employees as well as old employees.110

[62] Mr Curatolo stated that the requirement was part of the company’s standard operating procedures. That they had not been included with his statement was said to be “Possibly an oversight on my part....” 111 However, it was stated by Mr Curatolo that directions had been given by management which had not been followed.112

[63] Mr Curatolo was surprised to hear of Mr Ford’s evidence, that when he commenced with the company, hydrostatic testing was not always done. He could not recall having a conversation with Mr Yeoman following the applicant’s dismissal and was surprised that his evidence had been that hydrostatic testing was not always done. 113

[64] It was denied by Mr Curatolo he had exerted pressure to get a job out with the result that it could not be completed according to the procedures in time eg hydro testing could not be done. 114

[65] Mr Curatolo confirmed that at the time of the disciplinary interview with the applicant on 15 April 2009, there was no foreman employed and the applicant had told him that the issue was that he needed some administrative assistance with the workshop. He agreed that Mr Issom had been employed to provide this. He stated that he saw the applicant being given a copy of the record of interview. 115

[66] With respect to the Toll job, it was Mr Curatolo’s evidence that he was only told that it was leaving that night. He stated he was told afterwards by Mr Issom that the bearings were missed on the STT Bitumen tanker. Mr Curatolo recalled that he did not know anything specific about the Scott’s job until he had received the complaint. He had then gone through the work orders and had seen what had actually happened. He had reported this to Mr Ford but did not recall whether he had spoken to Mr Issom. He did not speak to the applicant. 116

[67] It was Mr Curatolo’s evidence that Mr Ford had approached him about terminating the applicant. He disagreed that it had been his idea. He recalled that he and Mr Ford had looked at the prior warnings and both had agreed on dismissal. Mr Curatolo indicated that, at the end of the conversation, he told Mr Ford to terminate the applicant’s employment. 117

FINAL SUBMISSIONS

APPLICANT

[68] It was submitted that the termination of the applicant’s employment was harsh, unjust and unreasonable on the basis that the termination was disproportionate to the gravity of the conduct. 118 Compensation was sought as the appropriate remedy.119

Valid Reason

[69] The applicant argued that there was no valid reason for the dismissal. It was contended that there was no clear instruction or directive to the applicant regarding mandatory hydrostatic testing or marking bolts with paint following pipework re-assembly. In the alternative, it was said that, if there was such an instruction, it had not been communicated effectively to employees. Rather, it was stated that the usual practice regarding hydro testing was that it would be done, subject to the nature of the fault and the constraints of the particular job. It was contended that tanks were sometimes sent out without hydro testing. 120 Mr Yeoman’s evidence was highlighted regarding hydro testing. Further, the applicant stated that there had been no evidence of a written directive provided by the company.121

[70] With respect to the Scott’s tanker, it was contended that:

[71] In terms of the Toll tanker, the applicant argued that:

[72] It was submitted that the applicant’s conduct in relation to the Toll job did not warrant a warning, particularly as he had worked a 16 hour day and it had not been his decision to send the tanker out. As well, it was argued that the applicant had not known that the warning he received, in respect of the Toll job, was a final warning. 124

Procedural Fairness

[73] The applicant contended that he was notified of the reasons for his dismissal but was not given an opportunity to respond. It was stated that the decision had been made and the termination letter typed up, prior to the meeting on 18 August 2009. 125

[74] Further, the applicant contended that he had been placed under unfair scrutiny by Mr Curatolo which had resulted in him being unfairly warned for incidents between April and August 2009. 126

Remedy

[75] It was submitted by the applicant that reinstatement was inappropriate and that compensation was appropriate. 127

[76] With respect to section 392(2) of the Act, the applicant contended that:

[77] In applying the principles set out in Sprigg v Paul’s Licensed Festival Supermarket 129 to this matter, it was submitted that

[78] With respect to the applicant’s submissions in reply, it was contended that the respondent was now relying on Mr Ford’s evidence that the reason for the applicant’s dismissal was the failure to follow proper procedure by following the RO. The applicant argued that Mr Issom’s evidence further confused the issue of what was the actual reason for the applicant’s dismissal. 131

RESPONDENT

[79] The respondent submitted that the reason for the termination of the applicant’s employment was his poor performance in his position. A number of warnings between 12 September 2007 and 3 August 2009 were highlighted together with a final warning on 6 August 2009 and two incidents on 12 and 13 August respectively. 132

[80] With respect to the Toll tanker incident and final warning (6 August 2009), it was stated that the applicant (together with the other two employees concerned) had failed to hydro test the completed work (pipework) and to properly mark repair works. The respondent contended that the applicant was aware of the need to hydro test the pipework but had failed to do so. Fair Work Australia was urged to accept the evidence of Mr Issom over that of the applicant with respect to their conversation on 6 August 2009. 133

[81] It was argued that the applicant was given every opportunity to respond to the respondent’s concerns and that he should have known that any further breaches or failure to meet the performance requirements would lead to his dismissal. 134

[82] In terms of the incident on 12 August 2009 regarding the STT Bitumen tanker, the respondent contended that the applicant had missed a critical part of the service - the wheel bearings. It was argued that the applicant, again, had shown a lack of care and responsibility in the performance of his duties. 135

[83] With regard to the events of 13 August 2009 and the Scott’s Transport tanker, the respondent stated that the applicant had only carried out work on one of the compartments when the RO referred to both compartments. The repair to the tanker was, therefore, incomplete and defective and the return of the tanker to the customer had seriously damaged the relationship with the client. It was said that the applicant’s attitude showed a lack of care and responsibility regarding his work. 136

[84] When the tanker was returned to the workshop, it was the respondent’s contention that the applicant failed to take responsibility for ensuring that his work performance was of the highest standard as befitting a senior tradesman. 137 It was argued that the only logical explanation for Mr Issom’s notation that hydro testing had been performed was if the applicant had told him so.138

[85] In summary, the respondent submitted that the termination of the applicant’s employment was the culmination of a series of issues over a lengthy period of time. The Tribunal was cautioned not to unduly concentrate on the final issue. It was stated that the applicant had been given opportunities to improve but this had not happened. The respondent contended that it was justified in “drawing the line” and deciding that it was time to part ways. 139

[86] Having said that, it was also the respondent’s submission that it was unacceptable for defective work to be returned to customers with the result that the company’s commercial arrangements were placed in jeopardy. Further, there was the issue of the safety consequences of faulty work being returned to the customer. It was stated that the applicant was the most senior and experienced tradesperson and in a responsible leadership position. However, the respondent argued that the applicant’s work performance and conduct was not in accordance with his experience and leadership position. 140

[87] Three further issues, which had been raised during the hearing, were canvassed in the respondent’s final written submissions. The first matter concerned whether or not there had been a concerted effort to target the applicant. 141

[88] The second issue concerned hydro testing. It was stated that it was unnecessary to focus on whether or not hydrostatic testing was compulsory. The respondent indicated that it was and that the Toll and Scott’s tankers repairs required hydro testing. However, the applicant had failed to follow the proper procedures on both these occasions. 142

[89] The respondent submitted that, however, the reason for the termination was the applicant’s failure to follow proper procedures - rather than a failure to undertake hydrostatic testing. Therefore, it was more that the applicant had failed to check both compartments 4 and 5 and then repair, if necessary. Mr Issom’s evidence was highlighted - where Mr Hillbrick had said that the work had been completed but had not been. Further, it was contended that, as the applicant had recently received a final warning, he should have been ensuring that he was following procedures. 143

[90] Finally, it was submitted that defective work was unacceptable under any circumstances, including whether the applicant was unwell - something which the respondent was unaware of. 144

Notified of the reason

[91] The respondent argued that the applicant was fully aware of the reasons for his dismissal - as a result of the meeting on 18 August 2009 and the written termination statement. 145

Opportunity to respond

[92] It was contended that the applicant had been given an opportunity to respond to each of the warnings but that he had chosen not to. With respect to the final issue (Scott’s Transport tanker), the respondent submitted that Mr Hillbrick had been given an opportunity to put his side of the story on 17 August 2009. At the meeting on 18 August 2009, it was stated that there had been ample opportunity for the applicant to have responded.

[93] However, the respondent argued that, even if a more formal opportunity to respond had been provided to the applicant on 18 August 2009, there is no reason to believe that the result would have changed. 146 It was submitted that any deficiency in the final termination interview does not, of itself, make the termination unfair. It is only one of the matters that should be taken into account and weighed against the previous warnings when such an opportunity had been provided.147

Support person

[94] It was indicated that the respondent had not suggested it and it had not been requested by the applicant. The observation was made that the applicant was not in any of the usual categories of persons who would need a support person. Further, the respondent stated that this was only one of the matters that needed to be looked at. 148

Previous warnings

[95] These were listed by the respondent. 149

Absence of dedicated human resources

[96] It was submitted that, as there are no dedicated human resources personnel, those involved in the applicant’s dismissal were performing their functions to the best of their knowledge and ability. It was argued that the respondent’s failure to provide human resources best practice should not overshadow the fact of Mr Hillbrick’s substandard work performance. 150

[97] There were no other relevant matters which Fair Work Australia should consider. 151

Remedy

[98] The respondent argued that reinstatement was impracticable as the relationship of trust and confidence has been destroyed. Further, it was contended that there was no indication that Mr Hillbrick’s performance or attitude would improve such that reinstatement would be of practical benefit to the parties. 152

[99] Finally, it was submitted that, if compensation was to be awarded, Mr Hillbrick’s period of ill health until 11 February 2010 should be taken into account and excluded from the calculation of compensation. Mr Hillbrick’s earnings since he found alternative employment should also reduce any compensation. 153

[100] In the Supplementary outline of respondent’s submissions 154, the following matters were highlighted:

CONCLUSIONS

[101] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

[102] The application was made fourteen days after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by the Marshall Lethlean Industries Pty Ltd Collective Agreement 2006. 158 Therefore, the applicant was protected from unfair dismissal within the meaning of s.382 of the Act. Sections 396(c) and (d) have no relevance in this matter.

[103] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:

[104] Section 385(a) has been met and s.385(c) and (d) have no relevance in this matter.

[105] In order to declare whether the termination of the applicant’s employment was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

[106] I will deal with each of these in turn.

Valid reason – s.387(a)

[107] The Termination Statement that was provided to the applicant when his employment was terminated on 18 August 2009 cited the following reason:

[108] In their final written submissions, the respondent stated that the reason for the applicant’s dismissal was his “poor performance in his position”. 160 Further in the submission it was said that:

[109] It is evident from the material before me that the decision to terminate the applicant’s employment, based on Mr Ford’s advice, was Mr Curatolo’s. 162 It was Mr Ford who then called the applicant to the meeting on 18 August 2009 and dismissed him. Mr Ford’s oral and written evidence was that the reason that the applicant was dismissed was because he had not followed procedures on the Scott’s Transport tanker on 13 August 2010 ie. had not read the RO correctly.163 Mr Ford indicated that, in not checking all of the compartments written on the RO, the applicant had failed to read the RO.164

[110] Taking all of this into account, it appears that the reasons for the applicant’s dismissal were his failure to follow company procedures - specifically, failing to read the RO correctly for the Scott’s Transport tanker repair. In addition, account was also taken of the previous warnings issued to the applicant about failures to follow company procedures. The final written warning of 6 August 2009 was highlighted.

[111] The facts regarding the Scott’s tanker job are not agreed between the parties. It is common ground between the applicant and Mr Issom that, at the time the applicant was given the RO, all that was written on it was “Leaking in comp 4 to com 5. Maybe bulkhead?”

[112] It was Mr Hillbrick’s evidence that Mr Issom had told him that there was a leak in compartments 4 to 5, maybe the bulkhead. He said that he had found what he had thought was the leak, in the 4/5 bulkhead, and had repaired it. He said that he had not tested compartment 4 except for checking the sealing ring. Mr Hillbrick recounted that, when he had found a leak in the bulkhead, having been told that that was possibly the problem, and, based on his experience that a leak in 4/5 bulkheads was common, he thought that that was the leak and that he had fixed the problem. 165 He also said that he had not hydrostatic tested compartments 4 or 5 after he had done the repair. Rather, he had gone to Mr Issom around 4.00 pm, told him that he had found the leak and repaired it and had then asked what Mr Issom wanted to do. It was said that this question had been asked in light of the customer wanting to pick up the tanker at 5.00 pm.166 He denied that Mr Issom had specifically asked him whether he had checked compartment 5 and whether the hydro testing had been done.167

[113] On the other hand, it was Mr Issom’s evidence that, after the applicant told him that he had found a leak in compartment 5, he had specifically asked the applicant whether he had done comp 4 as well. He recalled that Mr Hillbrick’s response had been “yes” and said that he had taken that to mean that Mr Hillbrick had done compartments 4 and 5. 168 Mr Issom stated that he had seen Mr Hillbrick hydro testing comp 5 “with my own eyes”.169 He acknowledged that he had not specifically asked Mr Hillbrick whether he had hydrostatic tested compartment 4.170

[114] It was agreed by Mr Hillbrick and Mr Issom that the RO said “Leaking in comp 4 to com 5. Maybe bulkhead?” It was also acknowledged by Mr Hillbrick that Mr Issom had verbally told him that there was a leak in compartment 4 to 5 and that it may be the bulkhead. I accept Mr Hillbrick’s evidence that he had not checked or hydrostatic tested either compartment 4 or compartment 5. 171

[115] When the tanker was subsequently returned by the customer as there was still a leak, it was found that compartment 4 was leaking. It was acknowledged by the applicant that, if the correct procedures had been followed, the leak in compartment 4 would have been identified before the tanker was returned to the customer. Mr Hillbrick’s explanation was that there was not the time to follow the correct procedure. 172

[116] In assessing the evidence before me, I find that, in addition to having found a leak in the 4/5 bulkhead, the applicant should have checked compartments 4 and 5 prior to the tanker being released to the customer. The RO indicated that there was “Leaking in comp 4 to com 5. Maybe bulkhead?” 173 On the other hand, I accept the applicant’s understanding that he was told that there was a leak. The applicant then proceeded to investigate and found a leak in the bulkhead, as was suggested in the RO. Based on his experience, it was open to the applicant to believe that he had found the leak and had then repaired it. In addition, there was time pressure in that the customer was expecting the tanker to be finished by 5.00 pm. A further factor is the culture within which this occurred. I accept Mr Hillbrick’s and Mr Ford’s evidence that, when necessary, the customer’s needs in terms of getting their tankers repaired as quickly as possible, took precedence over strict adherence to policies.174 As indicated earlier, the customer wanted the tanker repaired by 5.00 pm.

[117] The Termination Statement which was provided to Mr Hillbrick at the meeting on 18 August 2009 also referred to previous warnings having been issued regarding “Failure to follow Company Procedures.” The Statement also said that the last warning had been a final written warning of 6 August 2009 and that, “...on review it was determined that you are still failing to comply with company procedures.” 175

[118] The previous warnings were:

First written warning regarding failure to correctly tension a disc brake booster (3 September 2008). 177

[119] With respect to the warnings which were issued relating to failure to follow company procedures, these appear to have been issued between 15 April 2009 and 6 August 2009. There were two - on 15 April 2009 - for not signing off on a work order and on 6 August 2009 - for not following procedures regarding hydrostatic testing and marking with white paint of tightened bolts after pipework re-assembly (Toll tanker).

[120] There was relatively little evidence regarding the first written warning of 15 April 2009. In his evidence, the applicant acknowledged the record of interview to be an accurate account. 181 In giving his reasons for not having signed off the work order, the applicant had said that, as there was no foreman to give direction, this responsibility had fallen to him. The reasons given by the applicant for his failure to sign off a work order appear to have been acknowledged by the company as Mr Issom was appointed as foreman, a short time later. Taking into consideration all of the circumstances surrounding this warning, I find that the first warning was inappropriate and that a lower order disciplinary action should have been given instead.

[121] With respect to the other warning - a final written warning on 6 August 2009 regarding failure to follow the correct procedure (ie. hydrostatic testing and white paint marking) - there was a great deal of evidence. It went to both the particular incident and also the requirement to hydrostatic test. Mr Ford’s evidence was that mandatory hydrostatic testing was not written down in the company’s procedures. 182 The respondent did not provide the Tribunal with the company’s written procedure regarding hydrostatic testing.

[122] It would appear from the evidence that there was a “verbal procedure” which Mr Ford was trying to implement regarding mandatory hydrostatic testing. 183 Mr Ford’s evidence regarding his difficulties in enforcing the verbal procedure are, on balance, accepted. Mr Yeoman’s evidence that, prior to the applicant’s dismissal, hydro testing was not done on all repairs - just when he was told to do it or if it was on the RO or when the job required it - is noted.184 It is also not evident that the “verbal procedure” was consistently enforced. Given these factors, I find that the final warning given to Mr Hillbrick was not well founded and should not have been issued.

[123] Taking into account my findings that:

I find that, on balance, there was not a valid reason for the termination of the applicant’s employment.

[124] In the Termination Statement given to the applicant, the respondent relied on the reasons for the applicant’s dismissal being his failure to read the RO for the Scott’s tanker job together with the previous warnings issued to him regarding his failure to follow procedures. Yes, the applicant did not read the RO for the Scott’s tanker repair correctly and so did not check compartments 4 and 5. However, in balancing up all of the findings in play here, as set out in paragraph 125 above, the applicant failing to follow the correct procedures on 13 August 2009 together with a lower order disciplinary action for the same issue on 6 April 2009, do not, in my view, provide a sufficient basis to ground a valid reason for his dismissal.

Notification – s.387(b)

[125] The applicant was provided with a Termination Statement which set out the reasons for his dismissal. Accordingly, I am satisfied that the applicant was notified of the reasons for his dismissal.

Opportunity to respond – s.387(c)

[126] It was the applicant’s argument that he was not given an opportunity to respond and that the decision had been made, and a Termination Statement prepared, prior to the meeting commencing on 18 August 2009.

[127] The respondent contended that the applicant had been given an opportunity to put his side of the story the previous day (17 August 2009) and that there had been “ample opportunity” for the applicant to respond during the meeting on 18 August 2009. Further, it was argued that, when the applicant had been given all of the preceding warnings, he had had an opportunity to respond on each occasion.

[128] Mr Ford was the person who conducted the meeting on 18 August 2009 and who had told the applicant that his employment was terminated. It was his evidence that the Termination Statement had been prepared prior to the meeting and that he had gone into the meeting and told the applicant that he was terminated. He recalled that Mr Hillbrick had tried to explain what had happened but that he had cut him off and had told him again that he was dismissed. On the other hand, Mr Issom’s evidence was that the applicant did have an opportunity to respond during the meeting.

[129] Having considered all of the material before me, I am satisfied that the applicant was not given an opportunity to respond to the reasons for his dismissal.

Support person – s.387(d)

[130] There is no evidence before me that the applicant requested to have a support person with him at the meeting on 18 August 2009. Therefore, this factor is not relevant in this matter.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[131] It was the applicant’s submission that he had been placed under unfair scrutiny by Mr Curatolo from April 2009 which had resulted in a number of warnings between then and August 2009. Mr Ford’s evidence was to the effect that Mr Curatolo had told him that the applicant needed to be got out “by any means”. 185

[132] Mr Curatolo denied saying this and in turn stated that it had been Mr Ford who had sought that the applicant be terminated.

[133] The evidence shows that a number of warnings were issued to the applicant regarding his performance. It is noted that a counselling in 2007 and a written warning in 2008 were unrelated to the applicant’s failure to follow procedures.

[134] However, there was a first written warning on 15 April 2009 and on 6 August 2009 a final written warning regarding not following procedures. On 3 August 2009, there was also counselling on an unrelated matter.

[135] Having considered all of the material before me, I am satisfied that the applicant had been warned about unsatisfactory performance prior to his dismissal.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and (g)

[136] The employer employs approximately 140 permanent employees plus about nine apprentices and 10 - 12 casuals. 186 It has no dedicated human resources specialists. Except for providing the applicant with written reasons for his dismissal and having warned him previously about the unsatisfactory performance in question, proper procedures for dismissing the applicant were absent. The decision to terminate his employment was made prior to the meeting on 18 August 2009 and the Termination Statement had been typed before the meeting. At the meeting, the applicant was told that he was dismissed and given the reasons why but was not provided with an opportunity to respond. It appears that, when Mr Hillbrick tried to explain what had happened he was, in effect, told that his explanation did not matter and that he was terminated.187

[137] It is difficult to see how all of the failures of process can be accorded to the absence of a dedicated human resources function. It is recognised that the absence of such a function may have a deleterious impact on the termination procedures utilised. However, I am not satisfied that the extremely poor procedures in this matter can be solely attributed to an absence of dedicated human resources specialists.

Any other matters – s.387(h)

[138] There are no other matters that I consider relevant.

[139] In all of the circumstances of this matter, and having taken account of each of the factors in s.387 of the Act, I determine that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[140] It therefore follows that, pursuant to s.385 of the Act, Mr Hillbrick has been unfairly dismissed.

REMEDY

[141] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

[142] With respect to the requirements of s.390, I am satisfied that the applicant was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that the applicant has been unfairly dismissed (s.390(1)(b)). Further, Mr Hillbrick has made an application under s.394 of the Act (s.390(2)).

[143] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met. The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). The applicant did not seek reinstatement and reinstatement was opposed by the respondent. In the circumstances of this matter, I am satisfied that reinstatement of Mr Hillbrick is inappropriate. It is my view that it would be an untenable situation for all concerned if the applicant was reinstated to the company.

[144] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[145] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation. These criteria are:

[146] I will deal with each of the criteria in turn.

s.392(2)(a) - viability of employer’s enterprise

[147] There was no material before me that any order made would affect the viability of the respondent.

s.392(2)(b) - length of applicant’s service

[148] The length of the applicant’s service with the employer is approximately three years. There was uncontested evidence by the applicant that he also worked for the respondent over four different periods in the preceding 10 years.

s.392(2)(c) - remuneration would have likely to receive

[149] It was the applicant’s contention that he would have continued with the respondent for a year. The respondent submitted that it would have only been weeks. Having considered all of the material before me, I find that it is likely that the applicant would have continued with the employer for a period of twelve months. This is inclusive of the 13 weeks (between 7 November 2009 and 10 February 2010) when the applicant was unable to work.

s.392(2)(d) - efforts to mitigate the loss

[150] The applicant gave evidence that he had undergone surgery on 17 November 2009 but was not cleared fit for work until 10 February 2010. He also said that his doctor had told him that it was not worthwhile him applying for positions after his dismissal because he would not pass a medical for a new position due to his medical condition. Mr Hillbrick also stated that, once he was given a medical clearance, he sought alternative work and had found it shortly after.

[151] I accept that it was reasonable for the applicant, in the circumstances, to not seek to mitigate his loss for the period between 19 August 2009 and 17 November 2009. Further, until he was cleared fit for work after his operation of 17 November 2009, Mr Hillbrick was not in a position to seek alternative employment. However, as soon as he was given a medical clearance by his doctor, he sought to find alternative employment and was successful within a short space of time. Therefore, I am satisfied that the applicant made an effort, when it was possible, to mitigate the loss as a result of his dismissal.

s.392(2)(e) - the amount earned between dismissal and the order

[152] The applicant commenced work on 22 February 2010 with an alternative employer and earned the sums of $762.30 (gross) and $282.17 (net) over a period of two weeks. From on or after 15 March 2010, the applicant commenced with another employer as a casual labour hire employee. Between about 15 March 2010 and 11 April 2010, Mr Hillbrick earned $3997.93 (gross). Taking an average per week over that period, it is likely that the applicant would have further earned $999.48 per week over the period from 11 April 2010 until 15 October 2010 (27 weeks) = $26,985.96. This comes to a total of $36,296.52 (gross).

[153] The applicant’s weekly rate of pay when employed by the respondent was $1067.04 (gross). 188

s.392(2)(f) - the amount earned between the making of the order and receipt of the compensation

[154] It is likely that the applicant will have earned a further four weeks pay ($3997.92) by the time the compensation ordered is paid.

s.392(2)(g) - any other matters

[155] I consider, as relevant to the matter of compensation:

[156] Both parties agreed that the question of compensation should also be approached having regard for the guidelines that were established in the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket 189and Ellawalla v Australian Postal Corporation.190

[157] On the basis of all the matters put to me and the factors set out above, it is my view that the applicant should receive an amount of compensation equivalent to 10 weeks pay in lieu of reinstatement.

[158] There is no necessity to reduce the amount for any misconduct on the part of the applicant (s.392(3)) and no part of the compensation relates to any shock or distress suffered by the applicant (s.392(4)). Further, the amount does not exceed the applicable compensation cap (s.392(5)) and the order for the payment of compensation to the applicant will be an order that Marshall Lethlean Industries Pty Ltd pay compensation to Mr Hillbrick in lieu of reinstatement (s.392(1)).

[159] An order 191 giving effect to this decision will be issued separately.

COMMISSIONER

 1   Exhibit A2 at paragraph 1.2

 2   Exhibit R6 at Attachment SC3

 3   Ibid at Attachment SC5

 4   Ibid at Attachment SC9

 5   Ibid at Attachment SC10/DI2

 6   Ibid at Attachment SC12

 7   Transcript PN 88 - 90

 8   Ibid PN 91

 9   Ibid PN 92 - 94

 10   Ibid PN 92

 11   Ibid PN 112 - 114 and Exhibit R6 at Attachment SC3

 12   Ibid PN 112 - 117

 13   Ibid PN 126 - 127

 14   Ibid PN 136

 15   Ibid PN 135

 16   Ibid PN 137

 17   Ibid PN 143

 18   Ibid PN 152

 19   Ibid PN 166 - 173

 20   Ibid PN 151

 21   Ibid PN 154 and 157

 22   Ibid PN 154

 23   Ibid PN 155

 24   Ibid PN 157 - 162

 25   Ibid PN 164

 26   Ibid PN 192 - 235

 27   Ibid PN 239

 28   Ibid PN 240

 29   Ibid PN 256 - 257

 30   Ibid PN 259 - 261

 31   Ibid PN 263 - 265, 273 - 274, 276 - 277 and 298

 32   Ibid PN 275

 33  Ibid PN 280 - 295

 34   Ibid PN 278 - 280 and 287

 35   Ibid PN 428 - 436

 36   Ibid PN 327 - 347

 37   Ibid PN 300 - 309

 38   Ibid PN 348 - 349, 357, 369 - 370, 401 and 427

 39   Ibid PN 352 - 353

 40   Ibid PN 359 - 367, 402 - 403 and 427

 41   Ibid PN 367

 42   Ibid PN 417 - 425

 43   Ibid PN 379 - 394

 44   Ibid PN 397 - 398

 45   Ibid PN 321

 46   Ibid PN 567 - 570

 47   Ibid PN 582 - 585

 48   Ibid PN 452 - 455

 49   Ibid PN 441 - 446

 50   Ibid PN 437 - 460

 51   Ibid PN 496 - 500

 52   Ibid PN 502 - 507 and 529 - 530.

 53   Ibid PN 552

 54   Ibid PN 512

 55   Exhibit A9 at paragraphs 1.2 and 1.5

 56   Ibid at paragraph 1.4

 57   Ibid at paragraphs 2 and 3 and Transcript PN 613 - 614

 58   Ibid at paragraph 2.2 and Transcript PN 826

 59   Ibid at paragraph 3.6

 60   Transcript PN 629 - 636

 61   Ibid PN 740 and 745

 62   Ibid PN 759 - 760 and 860 - 861

 63   Ibid PN 761 - 765

 64   Ibid PN 786

 65   Ibid PN 637 - 652

 66   Ibid PN 653 - 658

 67   Ibid PN 685

 68   Ibid PN 707

 69   Ibid PN 689 - 693

 70   Ibid PN 691 - 694

 71   Ibid PN 625 - 626

 72   Ibid PN 627 - 628

 73   Ibid PN 721, 709 - 710 and 725 - 728

 74   Ibid PN 773 - 774

 75   Ibid PN 776 - 806

 76   Ibid PN 812 - 815

 77   Ibid PN 816 - 823

 78   Ibid PN 896 - 900

 79   Ibid PN 903

 80   Ibid PN 940 - 946

 81   Ibid PN 948 - 949

 82   Ibid PN 965 - 970

 83   Ibid PN 975 - 981

 84   Ibid PN 981 - 1001

 85   Ibid PN 1158 - 1161

 86   Ibid PN 1175 - 1178

 87   Ibid PN 1251

 88   Ibid PN 1255 - 1256

 89   Ibid PN 1260

 90   Ibid PN 1266 - 1274

 91   Ibid PN 1041 - 1043 and 1119 - 1121

 92   Ibid PN 1121 - 1141

 93   Ibid PN 1278 - 1284

 94   Ibid PN 1289 - 1295

 95   Ibid PN 1029

 96   Ibid PN 1188 - 1190 and 1218 - 1222

 97   Ibid PN 1201

 98   Ibid PN 1204

 99   Ibid PN 1192 - 1195

 100   Ibid PN 1190, 1213 - 1217 and 1237

 101   Ibid PN 1238 - 1248

 102   Ibid PN 1089 - 1090

 103   Ibid PN 1092 - 1106

 104   Ibid PN 1218 - 1229 and 1297 - 1310

 105   Ibid PN 1416 - 1419

 106   Ibid PN 1577 - 1585

 107   Ibid PN 1416 - 1422

 108   Ibid PN 1425 - 1432

 109   Ibid PN 1435 - 1441 and 1486 - 1491

 110   Ibid PN 1494 - 1499

 111   Ibid PN 1485

 112   Ibid PN 1485

 113   Ibid PN 1500 - 1510

 114   Ibid PN 1512 - 1515

 115   Ibid PN 1540 - 1548

 116   Ibid PN 1559 - 1570

 117   Ibid PN 1571 - 1574

 118   Applicant’s closing submissions, dated 5 May 2010 at paragraphs 1 - 3

 119   Ibid at paragraph 1

 120   Ibid at paragraphs 7 - 8

 121   Ibid at paragraphs 10 - 13

 122   Ibid at paragraphs 14 - 16

 123   Ibid at paragraphs 18 - 23

 124   Ibid at paragraphs 24 - 25

 125   Ibid at paragraphs 26 - 29

 126   Ibid at paragraphs 30 - 35

 127   Ibid at paragraph 36

 128   Ibid at paragraph 37

 129   (1998) 88 IR

 130   Applicant’s closing submissions, dated 5 May 2010 at paragraphs 38 - 39

 131   Applicant’s reply submissions, dated 10 May 2010 at paragraph 4

 132   Supplementary outline of respondent’s submissions, dated 6 May 2010 at paragraphs 3 - 5

 133   Ibid at paragraph 6

 134   Ibid at paragraph 7

 135   Ibid at paragraph 8

 136   Ibid at paragraph 10

 137   Ibid

 138   Ibid at paragraph 12

 139   Ibid at paragraph 13

 140   Ibid at paragraphs 14 - 15

 141   Ibid at paragraph 16

 142   Ibid at paragraph 17

 143   Ibid at paragraph 18

 144   Ibid at paragraph 19

 145   Ibid at paragraph 21

 146   Ibid at paragraph 24

 147   Ibid at paragraph 25

 148   Ibid at paragraph 26

 149   Ibid at paragraphs 27 and 4

 150   Ibid at paragraph 28

 151   Ibid at paragraph 29

 152   Ibid at paragraph 30

 153   Ibid at paragraph 31

 154   Dated 11 May 2010

 155   Supplementary outline of respondent submissions, dated 11 May 2010 at paragraph 2

 156   Ibid at paragraphs 3 - 4

 157   Ibid at paragraphs 5 - 6

 158   Exhibit A2 at Attachment PCH1

 159   Ibid at Attachment PCH10

 160   Supplementary outline of respondent submissions, dated 6 May 2010 at paragraph 3

 161   Ibid at paragraph 13

 162   Transcript PN 1574

 163   Ibid PN 710, 717, 723 - 728 and Exhibit A9 at paragraph 6.5

 164   Ibid PN 703 - 704

 165   Ibid PN 305 - 321

 166   Ibid PN 303 and 307

 167   Ibid PN 348 - 351

 168   Ibid PN 11260

 169   Ibid PN 1271

 170   Ibid PN 1273

 171   Ibid PN 303 - 307

 172   Ibid PN 419

 173   Exhibit R6 at Attachment SC14/DI5

 174   Exhibit A9 at paragraph 2.1

 175   Exhibit A2 at Attachment PCH10

 176   Exhibit R6 at Attachment SC3

 177   Ibid at Attachment SC5

 178   Ibid at Attachment SC9

 179   Ibid at Attachment SC10/DI2

 180   Ibid at Attachment SC12

 181   Transcript PN 138

 182   Ibid PN 690

 183   Ibid

 184   Ibid PN 896 - 899

 185   Ibid PN 761

 186   Ibid PN 940

 187   Ibid PN 821

 188   Applicant’s closing submissions, dated 5 May 2010 at paragraph 39

 189   (1998) 88 IR 21

 190   Print S5109, 17 April 2000

 191   PR502688



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