[2] On his completed Form R18 the Applicant indicated that he worked as an Order Selector for Woolworths at the time of the alleged termination. The Applicant was also a Health and Safety Representative under the Occupational Safety, Health and Welfare Act 1986 (the OSHW Act), and was a delegate for the Shop, Distributive and Allied Employees Association (the SDA).

[3] The Registry received the application under section 170CE on 27 September 2002. The matter was the subject of a conciliation conference before Deputy President Hampton on 2 October 2002, but was unable to be settled. Accordingly, a Certificate was issued under section 170CF(2). On 10 October 2002, the Applicant elected to proceed to arbitration. The arbitration was originally listed for hearing before Senior Deputy President O'Callaghan, but for reasons of the Senior Deputy President's previous involvement in an indirectly related matter, it was re-allocated to the Commission as currently constituted.

[4] In the completed Form R18 the Applicant indicated that the Respondent had "failed to meet procedural fairness [and] ... had constructed the dismissal following a lengthy period of discrimination and victimisation based on his respective roles as Union Delegate and Safety Representative."

[5] The Respondent gave the following reasons for terminating the Applicant's employment:

· four allegations of misconduct, which occurred on 13, 17 and (twice on) 19 September 2002;

[6] The Applicant was employed by the Respondent from March 1975 to April 1978 and from 13 March 1989 to 26 September 2002.

[7] In late 1995 the Applicant was elected to the position of Occupational Health & Safety Representative pursuant to the provisions of the OHSW Act.

[8] From March 1998 the Applicant became the subject of a series of loggings or warnings, which were taken into account and relied upon by the Respondent in its decision of 26 September 2002 to dismiss the Applicant.

[9] On 24 March 2001 an Occupational Health and Safety Review Committee, sitting in the Industrial Relations Court of South Australia, heard an application by the Respondent to revoke the Applicant's OHS representative status. The parties agreed, inter alia, that the application would be dismissed and that there would be no further performance monitoring or review of the Applicant by the Respondent with respect to any past conduct.

[10] However, as is evident from submissions in this matter[1], there was disagreement between the parties as to the scope of the agreement. The Respondent argued that the agreement was limited, whilst the Applicant contended the agreement applied in wider circumstances. This matter is dealt with later in this decision.

[11] The Applicant's employment with the Respondent was terminated on 26 September 2002 on the basis of four allegations of misconduct and the final warning given to him on 19 March 2002. The decision to terminate the Applicant was also taken in the wider context of previous warnings and counselling sessions dating from 13 March 1998.

[12] It should also be noted that neither the Applicant nor the Respondent contended, in relation to section 170CG(3)(da) of the Act, that the size of the undertaking, establishment or service in which the Applicant worked impacted on the procedures followed in carrying out the termination.

[13] It was similarly the case in relation to section 170CG(3)(db) of the Act, in respect of which neither party submitted that the absence of dedicated human resource management specialists in the workplace impacted on the procedures followed by the Applicant.

[14] In respect of the specific provisions of section 170CG(3) of the Act, the Applicant submitted, in general terms that:

· the Respondent did not have a valid reason for terminating his employment;

· the Respondent did not, prior to its decision to dismiss him, fully notify the Applicant of the reasons for dismissal and of the incidents relied upon by the Respondent in support of its reason to dismiss him; and

· the Applicant was not given an appropriate and effective opportunity to respond to the reasons for his dismissal in that:

· the Respondent's procedures were perfunctory and intended to convey a false impression of procedural fairness;

· not all relevant allegations and past incidents relied upon by the Respondent were put to the Applicant; and

· the Respondent had in any event already decided to dismiss him.

[15] The Applicant submitted that, from late 1995, he became active, for genuine reasons, in OHS and other industrial issues and was elected to the position of OHS representative pursuant to the provisions of the OSHW Act.

[16] From 13 March 1998, the Applicant became the subject of a series of loggings or warnings, which, according to the Applicant, were taken into account and relied upon by the Respondent in its decision of 26 September 2002 to dismiss the Applicant.

[17] On the Applicant's submissions, the loggings and warnings from 13 March 1998 were mostly, if not entirely, based on reasons which were not substantiated, or on behaviour which was taken out of context, or which for other reasons were unwarranted or failed to take into account mitigating circumstances.

[18] The Applicant submitted that from at least 11 December 2000, the Respondent determined to have the Applicant removed from his position as OHS representative and that from at least 6 February 2001 he was targeted for dismissal.

[19] The Applicant contended that the scope of the agreement reached between the parties on 24 March 2001 before the OHS Review Committee had the effect of `clearing the slate' for the Applicant. This meant that no previous conduct, including any final warnings, could be relied upon by the Respondent for the purposes of any future termination.

[20] Counsel for the Applicant submitted that the Applicant was logged on 29 June 2001, 27 July 2001 and 2 October 2001 by Keith Bennett, the Respondent's Shift Manager, for incidents that were at no time prior to his dismissal put to the Applicant for his comment and\or explanation. The Applicant submitted that this was evidence of a denial of natural justice on the part of the Respondent. It should be noted at this stage that the Respondent would submit in these proceedings that these particular events were not relied upon for purposes of the decision to dismiss the Applicant.

[21] In the further warning on 19 March 2002, the Applicant was advised that the Respondent relied on "recent documented incidents". According to the Applicant, the Respondent failed, or refused, to respond to the Applicant's oral and written request for details of those incidents so as to enable him to respond and explain the circumstances.

[22] It was submitted that the Applicant's behaviour did not demonstrate a pattern of unacceptable conduct. Rather, the conduct referred to by the Respondent evinced infrequent and isolated incidents of a type which occur, and may reasonably be expected to occur, when dealing with volatile OHS issues. In oral submissions, Counsel for the Applicant went further, stating that the working environment at Woolworths' Gepps Cross Warehouse was, in any event, `robust'.

[23] It was also submitted that the number and extent of warnings alleged by the Respondent against the Applicant were exaggerated.

[24] The Applicant further contended that the Respondent erred in concluding as a result of its discussions with him on 24 September 2002, in light of allegations put to him in writing the previous day, that the Applicant, inter alia, was not truthful, that his comments and actions were inflammatory and showed a lack of respect and lack of willingness to submit to the legitimate authority of management.

[25] Further, the Applicant submitted that in deciding to terminate the Applicant's employment, the Respondent failed to take into account the role and behaviour of management in provoking the incidents of 19 September 2002. In this regard, the Applicant contended that the Respondent relied on a purported directive to the Applicant which was not only unreasonable, but which the Applicant was sensible to decline.

[26] The Applicant also contended that the Respondent failed to discuss with the Applicant and his representative alternative options to dismissal. This was despite the specific recommendation to that effect by Deputy President Hampton, who had conducted proceedings under section 170LW of the Act in relation to the disciplinary proceedings which led to the termination of the Applicant.

[27] To the extent the Respondent had previously given the Applicant warnings, the Applicant submitted that those warnings were largely unwarranted, confused, irrelevant and capricious, or had lapsed or that the Respondent was otherwise not entitled to rely upon them.

[28] The Respondent submitted that the Applicant's behaviour had been subject to numerous loggings and final warnings since 1998. The Applicant had been given repeated opportunities to improve his behaviour. His failure to do so resulted in his dismissal.

[29] The Respondent submitted that the Applicant had been given a final warning in relation to his misconduct on 22 August 2000. The final warning was reiterated to the Applicant by the Respondent on the following dates:

[30] The Respondent claimed that the Applicant again engaged in misconduct, which resulted in the termination of his employment, consisting of the following alleged incidents:

· On 13 September 2002, the Applicant declined to attend a meeting to discuss Safety Basics Training, stating to the Respondent's Safety, Environment and Health Manager, Mr Carl Hogg, that "[Woolworths management] are a bunch of fascists".

· On 17 September 2002, the Applicant drove away from his shift manager, Mr Andrew Lewis, before Mr Lewis had finished discussing an issue with the Applicant in his capacity as Occupational Health & Safety and Union representative.

· On 19 September 2002 at approximately 3.10pm the Applicant refused to have a conversation with the Respondent's Distribution Centre Manager and Human Resources Manager without a union representative being present, despite being informed that the conversation was not a counselling or performance discussion and that the Applicant was not in any trouble.

· On 19 September 2002, the Applicant gestured towards the Respondent's Human Resources Manager, Ms Lisa Allington, with a Nazi salute.

· On 19 September 2002, when approached to attend a meeting by another Woolworths manager, the Applicant used inappropriate language including the comments "no I fucking don't [want to attend the meeting], not by myself", and "it is like working for a bunch of fucking Nazis".

[31] The Respondent contended that the matters detailed above constituted misconduct sufficient to warrant disciplinary action by the Respondent.

[32] In the Respondent's view, the previous allegations of misconduct for which the Applicant had received warnings were put to him in each instance. The Respondent submitted that those warnings were valid, current, and that the Applicant could be under no misapprehension as to the effect of his continued inappropriate conduct in the workplace. Given those warnings, the Respondent concluded that the appropriate disciplinary action following the incidents, which occurred on 13 September 2002, 17 September 2002 and 19 September 2002, was termination of the Applicant's employment.

Section 170CG(3)(a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or the operational requirements of the employer's undertaking, establishment or service

[33] It should initially be noted that, as mentioned in [1], the Applicant has made application for relief on grounds not just under section 170CE of the Act, but also under section 170CK(2) of the Act. The Commission is conscious that the Federal Court alone can determine a contravention of section 170CK(2).

[34] Notwithstanding this, the Commission has had regard to section 170CK in relation to the finding it has made in relation to section 170CG(a)[2].

[35] The Respondent terminated the Applicant's employment on the grounds of a number of express, short-term, although related, incidents. In the Respondent's view these were given greater context, weight and meaning within a longer term pattern of behaviour, which included a previous final warning.

[36] Unquestioningly, on the evidence presented to the Commission, the grounds for the termination were based on the alleged misconduct of the Applicant.

[37] In the Full Bench decision in King v Freshmore (Vic) Pty Ltd[3] the Bench stated:

"When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."

[38] Therefore, in circumstances such as these, the Commission needs to determine whether the alleged misconduct occurred and, if it did, whether it amounted to a valid reason for the termination of the Applicant's employment.

[39] It is apparent from the evidence submitted in this matter that there were substantial and sustained difficulties in the relationship between the Applicant and the Respondent. These arose after the Applicant assumed his dual representative roles. The Respondent detailed an extensive list of events that had occurred in the relationship since 1998, many of which resulted in warnings and loggings[4].

[40] The vexed issue in the relationship was the allegation by the Applicant that he was being victimised for the vigorous and justified pursuit of his dual representative roles, and the Respondent's claim that it found the Applicant's personal style of conduct untenable in the workplace.

[41] The Applicant and the Respondent struggled between 1998 and 2002 to distinguish their respective viewpoints. It is fair to say that they were never able to achieve any resolution of the principal matter in dispute: how to moderate the Applicant's personal behaviour and style, but permit a duly authorised representative to pursue legitimate activities arising from his OHS and union roles.

[42] In correspondence to the Applicant dated 23 November 2002, Ms Robyn Atkinson stated, in the context of issuing a (further) final warning:

"The accepted standards of conduct require you to fulfil your employment obligations and your activities as an Occupational Health and Safety Representative and Union Delegate in a reasonable and courteous manner. I re-iterate that it is your behaviour under review, not the fact that you are an Occupational Health and Safety Representative or Union Delegate."

[43] To the contrary, Counsel for the Applicant contended that the Respondent had resolved, seemingly at an organisational level, to terminate the Applicant's employment for reason that it considered Mr Pitt's forthright or unbending pursuit of his bona fide representative roles as `a thorn in its side'. This was at the heart of the application for relief under section 170CK(2) of the Act.

[44] Evidence to this end was tendered by Counsel for the Applicant regarding the close observation of the Applicant's conduct by a Supervisor, Mr Neville Ward. The Applicant submitted two documents[5], both created by Mr Ward, that reflected in summary terms on two incidents regarding the Applicant's behaviour. One incident was in June 2001 and the other in July 2002. It was claimed that these documents, by their own creation, suggest strongly that Woolworths management was in some way targeting Mr Pitt and attempting to generate the evidence necessary to justify his termination.

[45] Counsel for the Applicant submitted evidence[6] that Ms Atkinson possessed notes from a telephone conversation with a senior manager based in Sydney at the time of a dispute notification having been served on the company in relation to a confrontation with the Applicant over his attendance at a safety course in February 2001. That conversation, captured in handwritten, scribbled notes, included the following comments:

Again, can you read out the documents to the Commission please?---Yes:

Instructions, won't back away from this. Put on record -

I'm sorry, can I just stop you, sorry. Is it your handwriting?---Yes, it is, yes.

Instructions, won't back away from this. Put on record he will be dismissed. If doesn't go in our favour, will take further. Statements, affidavits, want the company to hear the whole thing. Had it with Pitt, he won't bend to company --- disturbed, using safety as a wedge. Procedure, DC manager assess appropriateness of absence. Confirm either way with SDA. Shift supervisor advised of absence, employee discusses with supervisor. Sometimes discussed at OH&S course. Not followed, GP.

Do you know what GP stands for?---Grievance procedure, possibly:

4 weeks time hearing, suspend. Happened some months ago, SDA picked up a couple of issues, need to hear whole -

You see, those two documents I take it were prepared - I'm sorry. That document was prepared at or about 6 February 2001?---It appears so, yes.

The notes that you have wrote on the application notifying the dispute were also written at about 6 February 2001?---They sound similar so I presume that they would have been, yes.

You see, in paragraph 127 of your statement, you complain that Mr Pitt was very aggressive in his manner towards management?---Yes.

Well, how would you describe the attitude of: don't back away, go for the jugular? Do you think that displays a pretty aggressive approach towards Mr Pitt?---I believe it can be seen as being aggressive.

Yes, I think so. Isn't that the situation, that management had a very aggressive approach towards Mr Pitt?---No, I don't believe so. I think it is fair to say that most people wanted Michael to act in an appropriate manner. As I said before, no one wanted to dismiss Michael. We just wanted him to understand how his behaviour affected other people. If he could learn from that, if we could help him to see that, then the issues would be resolved.

What you wanted him to do was to bend to the company, isn't that the position?---These are the words that are written on these documents, yes. They are not my words.

Whose words are they?---They are instructions that I took over the phone from a superior.

Who was that?---To be quite honest I can't recall because there's been so many changes in the supply chain, so many people that have left.

So the attitude of your superior was that the company wanted Mr Pitt dismissed because he would not bend to the company? That is the position, isn't it?---At that point in time, that was the view of that particular supervisor/manager.

They were the instructions that were given to you for the conduct of these proceedings in the Industrial Commission?---That's correct, yes, didn't mean I necessarily had to agree with them though.[7]

[46] There was further evidence tendered[8] that, according to Counsel for the Applicant, suggested that in August 2000 the Respondent had participated in a meeting with the Australian Retailers Association (ARA) in which the circumstances of the Applicant's possible dismissal was discussed. Counsel for the Applicant submitted that this advice was directly procured by the Respondent and revealed its actual, as opposed to its stated, intentions in regard to Mr Pitt. The handwritten notes read, in part:

BR: If any way he can breakdown syst - he will. Personal vendetta against w\w. [...] Uses situations to undermine mgmt -

-Lyn - To be successful - need all Hazard and Default notice

# If believe opportunity will arise to dismiss him don't take action re OH&S.

[47] On the basis of the evidence here outlined, Counsel for the Applicant contended that there was an attitude prevalent in Woolworths' management to "rid itself of Mr Pitt", and this was sought for reason of his determination to pursue his legitimate dual representative roles.

[48] The Commission is not satisfied that this evidence inexorably led to the conclusion Counsel for the Applicant claimed.

[49] The Commission is not inclined to accept that the behaviour by a supervisor, Mr Neville Ward, in making two diary entries (each almost year apart) recording incidents concerning the Applicant's conduct, gives evidence on its own or in conjunction with other evidence tendered that there was a company-wide conspiracy to terminate the Applicant. This is particularly the case given the author of the notes was unmoved under cross-examination, that he maintained similar such diarised notes in relation to other employees, and the Applicant had not been singled out. In addition, it would appear to the Commission that Mr Ward's summary notes never formally made their way onto Mr Pitt's employment record, and were not relied upon by the Respondent for any purpose.

[50] The Commission is not of the view that the evidence led in relation to the advice purportedly proffered by the ARA in relation to Mr Pitt's employment necessarily revealed a stratagem on the Respondent's part to dismiss Mr Pitt, nor a singular motivation to seek his dismissal. There was no evidence led, for example through the ARA representative, as to what the purpose of the advice may have been, and no conclusive finding can be made as a result.

[51] Similarly, while a Sydney-based former senior manager may have made some aggressive comments about Mr Pitt in preparation of an approach to a hearing before this Commission, it does not follow that such an approach was given effect locally. On Ms Atkinson's evidence, she simply did not necessarily agree with the comments as made. This would appear to be consistent with the wider evidence she gave in these proceedings.

[52] It is also difficult to link in any substantive or proven way the motives the Applicant alleged in regard to the Respondent in late 2000 and early 2001 with the events of September 2002. The latter events give no indication whatsoever of being engineered on the basis of any preconceived plan, let alone one that was evolved some two years (or more) previously.

[53] On the evidence, the Commission is not of the view that in terminating the Applicant on 26 September 2002, the Respondent was motivated by a desire to terminate Mr Pitt for reason of his duly elected OHS and union workplace roles. The preoccupation of the Respondent was with the modification of the Applicant's personal conduct, not his workplace roles as such, even although the issue of personal conduct arose often (but not exclusively) from Mr Pitt's interaction with the Respondent[9].

[54] Inevitably these issues may, at points, appear indistinguishable. At times they may be confused one for the other. The Commission has weighed this carefully in its decision and assessment of the evidence.

[55] In the Commission's view, it was open to the Respondent to draw a distinction between the Applicant's representative role and his personal conduct, and to seek to modify the latter.

[56] On the Applicant's own admissions under cross-examination and on the evidence of Ms Atkinson and Ms Di Priestly, the Respondent's Zone Human Resources Manager between August 2001 and July 2002, the Respondent had repeatedly offered Mr Pitt opportunities for anger management counselling and external conciliation "as a means of resolving the ongoing conflict being experienced and help find a way to move forward to a more positive working relationship"[10]. That is, the Respondent led credible evidence that the there was a determination for its own part to repair its relationship with the Applicant and was not driven simply to "rid itself of Mr Pitt".

[57] On the evidence before the Commission, the Respondent was not singularly motivated by a desire to make the Applicant compliant to the company and eliminate his role in raising workplace issues of an OHS or union-related order. It was principally motivated by a desire to modify personal conduct that, on the standards it had made clear, was inappropriate. This largely comprised the Applicant `talking over' others during discussions and meetings, talking aggressively and acting rudely, and being overbearing and disruptive[11].

[58] Aside from the evidence led in this respect by Ms Atkinson and Ms Priestly, both of whom the Commission regarded as credible witnesses, consistent evidence that was unmoved in cross-examination was also led by, amongst others, Ms Margriet Green, the Woolworths Rehabilitation Co-Coordinator, Mr Brad Serravalli, a Training Officer, Mr Gerald Hardacre, the Zone Inventory Systems Manager, Mr Neville Ward, the Supervisor on the PM Shift, and Ms Marilyn Pattison, an Occupational Therapist (who was not an employee of Woolworths, but retained a commercial relationship to the company).

[59] The Commission has noted that the issue of the distinction between the Applicant's representative role and his personal conduct arose before Deputy President Hampton. This was in relation to Deputy President Hampton's Recommendation of 24 September 2002 in respect of an application lodged under section 170LW of the Act regarding what was then disciplinary action only. The Deputy President commented at that time:

"I am also inclined to the view that whilst there are some concerns about relationships generally and Mr Pitt has been the subject to some inappropriate comments from management in the past, Mr Pitt should recognise that his particular style of dealing with issues (rather than the substance of the issues that he champions) may need to be modified."[12]

[60] Under cross-examination, the Applicant revealed an unwillingness to reflect on the perceived impact of his personal behaviour[13].

[61] He also conceded under cross-examination that he declared "Well, spank me then. Well, bend me over and spank me then" when advised of his failure to comply with the required procedures to issue a default notice[14]. The Applicant further admitted to mocking a supervisor whom he believed was deserving of it[15]. The Commission also notes that in his cross-examination, the Applicant described the Woolworths' working environment as "barbaric"[16] .

[62] On the evidence put to the Commission from all sources, the principal problem that so bedivilled Woolworths' management was not Mr Pitt's forceful advocacy in relation to safety issues and employee workplace interests[17]. Rather, it was the intense, personal and perceived aggressive nature of the manner in which he pursued those issues and interests. In reality, the issues between the parties that were in contention were issues of personal dynamics and the manner in which persons, comprising a range of sensitivities, in a mixed gender working environment deal with and manage a long history of perceived aggressive and confrontational or abrasive conduct.

[63] The Commission appreciates that those who hold representative roles in the workplace may no doubt require a certain level of robustness in dealing with management from time to time. Counsel for the Applicant claimed that the Commission should be especially vigilant in protecting employees acting in representative roles. However, this does not excuse a workplace representative from an express requirement to observe the normal civilities that are expected across the community:

"Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union ... But while [the] Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring upon the wearer immunity from liability for wrongful actions..."[18].

[64] The Respondent had attempted to manage the Applicant's conduct by offering the Applicant anger management courses and external conciliation to work through the issues that were colouring the relationship between the Applicant and his employer[19]. The Applicant submitted in cross-examination that he viewed these approaches as `insincere'[20].

[65] Importantly, there was no evidence led over the course of the proceedings that is sufficient to convince the Commission that the Respondent ever had an orchestrated or systematic plan to terminate the Applicant's employment. Certainly not for reason of his status as a member of a trade union or role as an OHS representative. In the Commission's view, it is to draw a long bow indeed to, for example, attempt to link a small number of events, which are dated between September 2000 and February 2001[21], with the events that took place in September 2002 and which triggered the Applicant's dismissal.

[66] It is more so the case when the key personnel involved in the decision to dismiss the Applicant in September 2002 had little familiarity with the Applicant's disciplinary history, or else had not been a party to any of the few meetings or discussions that were purported to give evidence of the Respondent's intention to conspire to terminate the Applicant. Indeed, Ms Allington, the Zone HR Manager who took the initiative to dismiss the Applicant, had only taken on that role in July 2002 and only met the Applicant at that time.

[67] Over the course of the proceedings, Counsel for the Applicant cross-examined each relevant witness under oath as to their knowledge of any plan or organised intention on behalf of Woolworths management to terminate the Applicant's employment, particularly so for reasons of his dual representative roles. No evidence under cross-examination of the Respondent's witnesses emerged that could allow the Commission to long entertain the existence any such plan or organised intention on the part of the Respondent.

[68] In view of the above, the Commission is not of the view that the Respondent terminated the Applicant for a reason that is a prohibited reason under section 170CK(2) of the Act.

[69] Notwithstanding the Commission's finding in this regard, it remains to be determined whether the Respondent had a valid reason in its own right, that is, in respect of section 170CE(1), for the termination of the Applicant's employment.

[70] The Respondent forwarded a letter dated 23 September 2002 to the Applicant, headed "Allegation of Misconduct", detailing the issues subject to investigation in the following terms:

"Given that you received a final warning on March 19 2002 regarding your conduct and behaviour Woolworths considers that these allegations are serious and may constitute misconduct on your part.

· That on Friday September 13 2002 you stated to Carl Hogg, (Safety Health and Environment Manager) that you would not attend the Safety Basics training scheduled for Monday 16 September because "[Woolworths Management] are a bunch of fascists". We consider that this response may demonstrate a lack of respect for both Woolworths and your Managers.

· On Tuesday September 17 you drove away from Andrew Lewis before he had finished discussing an issue with you in your capacity as an OHS and Union Representative. This discussion involved an issue we were resolving with a fellow employee and his personal hygiene. Woolworths considers that this action may have demonstrated a lack of respect on your part for your immediate manager. This issue had previously been raised with you in a meeting with Di Priestley and Andrew Lewis on March 19 2002.

· That on Thursday September 19 at approximately 3.10 pm you refused to have a conversation with John Piper and myself without a union representative being present. When I advised you that the conversation was regarding OHS training, that it was not a counselling or performance discussion and that you were not in any trouble, you still refused to converse with us. I asked you if you would like Mathew Werfel to be present and you responded that he was not available and that you wanted the Union present. I asked you if you would like anyone else from the warehouse to attend with you and you refused stating that you wanted the Union to be present. You stated that you did not trust us and that you were not interested. I stated that I required you to talk to us. However, you left the area and gestured towards me in a manner which I interpreted to be a Nazi salute. Woolworths considers that this action may demonstrate a lack of respect for your Managers and may constitute a failure to comply with a reasonable and lawful direction.

· That on Thursday September 19 at approximately 3.50pm you were approached by Darren Boswell, your Afternoon Shift Manager and asked if you would like to attend a meeting at 4.00pm regarding the audit of engineered standards. You declined to attend this meeting stating "no I fucking don't [want to attend the meeting], not by myself". Darren advised you that there would be five other staff present and that you were invited, as Woolworths wanted you to see that this work was going ahead in a transparent manner. You responded "I have been getting grilled by Piper and Allington about not complying with some reasonable request and they wouldn't even let me have a witness". You stated "it is like working for a bunch of fucking Nazis".

In light of previous warnings and counselling sessions, and the final warning issued to you on march 19 2002, woolworths considers that your conduct is serious and may warrant disciplinary action, which may include termination of employment."

[71] In the Commission's view, it is necessary at the outset to determine whether it was appropriate for the Respondent to rely on the Applicant's previous conduct (that is, "previous warnings and counselling sessions") and the final warning of 19 March 2001 in its decision to terminate the Applicant's employment.

[72] An answer to this question resides, in part, in the meaning of the settlement dated 24 May 2002 reached in the South Australian Industrial Relations Court, which followed the attempt by Woolworths to have Mr Pitt disqualified as a health and safety representative under section 30(4)(a) of the OSHW Act 1986.

[73] The application was dismissed on a number of grounds, which included:

"4. That there is to be no further performance monitoring or review of the respondent by the applicant with respect to any past conduct."

[74] This is a critical condition of the settlement. It goes to the extent to which the Respondent, in its decision to terminate the Applicant, was able to rely upon the history of events and issues between it and Mr Pitt. The condition of the settlement also determined the Applicant's expectations as to the manner in which his employer would deal with his future conduct.

[75] The Respondent claimed that the settlement was limited in scope, and distinguished OHS from disciplinary matters. It was also submitted that the settlement went only to the status of the formal, monthly performance monitoring reviews conducted, in the main at least, by Ms Atkinson. That is, while the hitherto monthly performance reviews as a consequence of the settlement ceased, the formal final warning of 19 March 2001 remained in place. Consequently, the history of the company's relationship with Mr Pitt could still be relied upon in any future decision-making regarding the Applicant's conduct.

[76] The Commission is not convinced by the Respondent's evidence and submissions in this regard. The Commission shares the view of Counsel for the Applicant, who contended that the effect of paragraph 4 was to initiate a new start, as it were, between the parties.

[77] The settlement as reached strongly suggests that the parties agreed to new conditions upon which the Applicant would conduct his OHS representative role and the sublimination of his past conduct for purposes of ensuring the parties would develop a new, desirable relationship.

[78] The Commission does not accept that the terms of the settlement bear only in respect of safety issues and are distinguishable from the wider, contextual disciplinary issues. That is, the Commission does not accept that the settlement provided for the cessation of the monthly performance review - which was inherently disciplinary related - but was not able to have any wider reach in respect of the same issue as it extended to `past conduct'.

[79] Having concluded that the warning of 19 March 2002 and "the previous warnings and counselling sessions" were not to be relied upon for purposes of dismissing the Applicant, the Commission must now determine whether the incidents that occurred over 13, 17 and 19 September 2002 provided the Respondent with a valid reason in their own right to terminate the Applicant.

[80] The Commission must ask whether, as a matter of fact, the Applicant stated, on 13 September 2002, that "[Woolworths Management] are a bunch of fascists", and if so the consequence of this for his employment relationship with the Respondent.

[81] The Commission has considered Mr Pitt's evidence as to his exchanges with Woolworths manager Mr Carl Hogg of 13 September 2002 and finds it unsatisfactory. The Commission was unimpressed by Mr Pitt's explanation under cross-examination in which he claimed he stated to Mr Hogg, in refusing an invitation to attend the new company-wide Safety Basics Training program presentation, that the OHS training program was a `fascist doctrine', and one which he could not endorse as a consequence. His explanation as to why the training program to which he had been invited was a `fascist doctrine' was particularly unconvincing[22].

[82] On the contrary, the Commission found Mr Hogg a reliable witness. His recollection of this particular event was unclouded, and he was unmoved under cross-examination. The Commission notes in particular that Mr Hogg appeared to be without any malice towards Mr Pitt and proffered his evidence matter-of-factly. His later notes as to the exchanges with Mr Pitt[23] are credible, despite being prepared some five days after the event.

[83] On 17 September 2002, in a discussion with Mr Andrew Lewis, it was alleged that the Applicant withdrew from the conversation abruptly. This was taken to be a sign of rudeness, and contributed to the Respondent's decision to dismiss the Applicant.

[84] On reviewing the evidence in respect of this event, the Commission is not satisfied that there was any clear understanding by the parties as to what was being sought or asked, and in any event whether Mr Pitt's response was of any consequence whatsoever. The matter concerned the Respondent's efforts to manage the issue of a contractor who suffered apparently offensive levels of body odour.

[85] The Applicant claimed that he had been inappropriately approached to be involved in this issue in that there were competing management explanations as to what role he was being invited to play in assisting to resolve the matter. He subsequently claimed - on his own evidence - that he would be taking the matter further and putting the incident in writing. In the absence of any material response form Mr Lewis - on the Applicant's evidence - he terminated the conversation.

[86] There would seem to be little of consequence in this issue. There is a possibility that the Applicant terminated the conversation he had instigated by abruptly driving away, but the evidence is uncertain in this respect. While there may be grounds for concern at the Applicant's posture throughout this discussion, the event is not of great determinative weight in its own right, nor in conjunction with the other surrounding events of that month.

[87] On 19 September 2002, Ms Allington and Mr John Piper sought to informally meet with the Applicant following his refusal to attend a briefing on the Safety Basics Training programme. The Applicant rejected this approach other than in the presence of a union representative. On Mr Pitt's evidence, while it was not always the case, it was not uncustomary for him to meet Woolworths management and his supervisors only in the company of witnesses who were members of the SDA and trained job delegates.

[88] Ms Allington claimed she was aware that the Applicant had refused to accept an invitation, proffered by Mr Hogg on 13 September 2002, to attend the Safety Basics Training briefing. On her evidence, she sought clarification from Mr Pitt, as the OHS representative, for his decision in this regard[24].

[89] In seeking to hold a discussion with Mr Pitt, the relationships quickly broke down. Ms Allington indicated to the Applicant that she and Mr Piper sought a discussion only and indicated that it was not a disciplinary matter and that the Applicant was not putting himself at any risk in meeting with her. However, the Applicant refused any such meeting and requested that a union member who was a job delegate attend as a witness. Despite efforts to locate such a person, none could be found immediately and the meeting was adjourned to the following day.

[90] The best the Commission can adduce from the evidence that has been put before it is that the situation then rapidly escalated. Ms Allington expressed frustration at not being able to obtain access to an employee with whom she felt entitled to communicate and who was acting unreasonably. She conceded in evidence that she had become angry and had informed Mr Pitt at that time she would, at the rescheduled meeting, be formally warning him for refusing to meet a reasonable direction to meet with her.

[91] Mr Pitt reacted defensively to the request to meet with Ms Allington and Mr Piper, refusing to meet `two-on-one' and refusing available witnesses other than a trained union delegate. Ms Allington, on her evidence, took some steps towards Mr Pitt to make herself better heard in a noisy warehouse environment. Mr Pitt recoiled and quit the discussion by backing off on his runner.

[92] It was at this point, before turning to drive away, that Ms Allington alleged that the Applicant gave her a Nazi salute.

[93] The Evidence in Chief given by the Applicant regarding this event was unconvincing[25].

"Can you just indicate to the Commission the manner in which you saluted?---Well, I just threw my arm up, I was pretty outraged at the time, the point and time when I knew I was going to get the sack and because the - how things had come together it was just preposterous situation and I - I just - I shouldn't have done it, but I did and - but it wasn't a fascist salute. It was a more of a subordinate as though - like a soldier that has no rights and it didn't matter what I had to say they had predetermined what was going to happen.

"Can you just indicate again how you did that?---Just - I was on a runner, I drove off probably 15, 20 metres and I just stopped, I had to stop to check behind because there's an entrance and Lisa was staring, glaring at me and I - I just threw - threw my arm up."

[94] On two instances over the course of his Evidence in Chief, the Applicant demonstrated the arm movement he allegedly made. In both instances, the movement consisted of his elbow being raised at head height with the forearm bending down towards the rear of the shoulder, with his wrist hanging limp.

[95] The Commission found the Applicant's evidence confused and unsatisfactory. Elsewhere in his evidence, the Applicant had stated that he made a `military salute'[26]. However, the arm-movement the Applicant demonstrated to the Commission in evidence was not identifiable as a military salute of any kind. It is also difficult to see how the arm movement twice demonstrated related to `a soldier with no rights'. And it is difficult also to understand, in light of what Counsel for the Applicant claimed was no more than an innocuous gesture, why the Applicant conceded he `shouldn't have done it'. The Commission is left to infer that what was `done' was the giving of an offensive gesture to Ms Allington, the Zone Human Resources Manager, in the manner alleged.

[96] The Commission is also cognisant that on two other separate occasions between 13 September and 19 September 2003, the Applicant made reference to Nazism or fascism. His conduct in this regard fits a discernible pattern.

[97] Irrespective of the Commission's regard to Ms Allington's evidence[27], the Commission concludes that the Applicant did make a Nazi salute to her on 19 September 2003. That is, despite the Applicant's denials, the Commission is of the view that the Applicant did salute Ms Allington (and feasibly Mr Piper had he not been engaged in a telephone conversation and witnessed the proceedings) in the manner alleged.

[98] Shortly after the confrontation with Ms Allington, the Applicant was approached to attend a meeting with Mr Darren Boswell, his Shift Manager, regarding the performance standards audit. In the ensuing conversation, the Applicant allegedly and initially rejected the invitation in the following terms:

[99] After explaining the incident with Ms Allington, the Applicant then allegedly stated:

"Its getting ridiculous here, they expect me to follow the grievance procedure and they can't even follow it themselves, its like working with a bunch of fucking nazis."

[100] According to Mr Boswell, the Applicant then walked off and continued `cursing'[28].

[101] These allegations were contained in the witness statement of Mr Boswell which was drawn from his detailed contemporaneous diarised note of 19 September 2002[29].

[102] The Commission has no reason to doubt the veracity of Mr Boswell's allegations. He was not moved from his statement under cross-examination and his diarised note, despite there being some speculation as to the precise time at which he wrote it and an accompanying email, cannot be held to be fabricated or otherwise engineered in the context of the earlier event, about which he knew nothing, seemingly, at the time of his conversation with Mr Pitt.

[103] Mr Boswell took offence at Mr Pitt's language[30].

[104] The question that is therefore now before the Commission turns on the extent to which the Applicant's conduct, as it has been found to be, on 13 and 19 September 2002 warranted the termination of his employment.

[105] The Commission is mindful that, in evaluating the standards of conduct in the workplace, "one must apply the standards of men, and not those of angels"[31].

[106] On the basis of the evidence before the Commission, the Gepps Cross Distribution warehouse was not completely free of incidents of inappropriate language and misplaced jocularity. The Commission is also mindful that there was no express code of conduct in relation to "bad language"[32] in the warehouse that was brought to the Commission's attention. This is despite the Applicant's admission that offensive language was not appropriate and could result in disciplinary action[33].

[107] Notwithstanding this, in relation to all the circumstances of this application, the Commission is of the view that the three incidents that centred on the Applicant's exchanges with his managers, referring to the Respondent as "fascists"[34] and then "fucking Nazis", and the deliberate use of a seig heil salute to another manager[35], are of sufficient effect in their own right to be destructive of the necessary trust and confidence that are the essential pre-condition of any employment relationship[36].

[108] The Commission has had close regard to the textured nature of the events that transpired in September 2002. There was a long history of tension in the employment relationship to that point. The Applicant believed himself to be victimised. But one thing this long history bears out pellucidly is that the employer had serious and consistent concerns with the manner in which the employee (the Applicant) had conducted himself since 1998 and this was consistently communicated to the employee[37]. The events of September 2002 reveal that the Applicant remained insensitive or indifferent to those perceived concerns, even granting he did challenge their foundation at each instance.

[109] This aside, the Applicant as an employee cannot vilify or impugn the employment relationship as he did and then expect that relationship to remain unaffected. On three occasions across a five-day period the Applicant used inflammatory and offensive language to criticise the employer, its practices[38] and its management. The cumulative impact of these incidents was, in the Commission's view, to prove destructive of the trust and confidence of the employer in the employee.

[110] The Applicant also criticised his employer in terms that cannot be tolerated in the contemporary workplace, in which there is an acute need to tolerate and manage a range of sensitivities. The Commission has ventured its views in regards to allied subjects previously. Most recently, Senior Deputy President Lacy said the following in respect of a matter involving anti-Semitic racial abuse in the workplace:

"Employees reasonably can be expected to work harmoniously with one another and have regard to the sensitivities of other people within the workplace. This, it seems to me, is a corollary of an employer's duty to provide a safe and healthy work environment free of hostility and harassment."[39]

[111] The same sentiment is apropos in the current circumstances.

[112] The Commission appreciates that in respect of the incident with Ms Allington on 19 September 2002, the Applicant acted in the context of what became, to some degree, a stressful situation. However, he had a responsibility to exhibit an appropriate level of self-control in such circumstances. The same conduct is expected of employers.

[113] Similarly, the Applicant's later conduct in his comments to Mr Boswell also evince an absence of self-control that cannot be allowed to take root in the workplace. The Applicant's comments to Mr Hogg were unprovoked in any immediate sense, and were even more damaging for that reason.

[114] The Commission cannot accept the submissions of Counsel for the Applicant that the working environment in the Woolworths Gepps Cross Distribution warehouse was sufficiently robust to tolerate the conduct such has been found to have been exhibited by the Applicant on 13 and 19 September 2002.

[115] The Commission does not accept that the Applicant's behaviour was explicable within the circumstances of the exchanges in which they took place. That is, the Applicant's statements were "intemperate" and arose from his general frustration in the course of an angry exchange, and are acceptable for that reason.

[116] It should also be recalled that the Applicant made his comments to three members of the Woolworths management team. Mr Carl Hogg, the Safety Health and Environment Manager at the Woolworths Distribution Centre; Mr Darren Boswell, a Shift Manager; and Ms Lisa Allington, the Zone Human Resources Manager.

[117] The Commission is conscious that a further alleged ground for the termination, documented in the letters of 23 and 26 September 2002, related to the failure of the Applicant to observe a reasonable direction to meet with his managers. Little was put to the Commission on this point. Given the findings above, which stand on their own, the Commission does not consider this ground should attract any particular comment.

[118] In view of the above, the Commission finds that the requirements of section 170CG(3)(a) are met. As a consequence, the Respondent had a valid reason for terminating the Applicant's employment.

Section 170CG(3)(b) Whether the employee was notified of that reason

[119] On 23 September 2002 the Respondent gave the Applicant detailed, written notice of the grounds on which it was considering the Applicant's dismissal. However, the Commission is of the view that in so communicating its reasons to the Applicant, the Respondent relied on some grounds that were not available to it. These included the final warning of 19 March 2002 and the prior conduct, as referred to above.

[120] In view of this, the only reasons for which the Respondent was required to notify the Applicant related to the events of 13 and 19 September 2003, as these were the only events which had generated the reasons upon which the Respondent could rely for the dismissal.

[121] The Commission has examined the documentation relating to the minutes of the meetings of 23 and 26 September 2002[40], in which the reasons for the termination were discussed.

[122] The Commission has concluded that the employee was notified, prior to the decision to terminate his employment having been taken, of the reason for his dismissal. This notification was consistent with section 170CG(3)(b) of the Act.

Section 170CG(3)(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee

[123] The Commission accepts that by relying on grounds that were not available to it, the Respondent may have acted so as to confuse, to some measure in the Applicant's mind, the precise range of matters to which he was to respond. By so doing, the Respondent put the Applicant in a position whereby he was required to respond to an extended range of matters (including warnings, loggings and counsellings) that dated back to 1998. The Applicant was required to do this in a relatively short period of time.

[124] In the Commission's view, this compromised the Applicant's `opportunity to respond'. Consequently, this has created a defect in the procedural requirements under the Act.

Section 170(CG)(3)(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed by in effecting the termination

[125] The Commission is not persuaded that this statutory provision has any relevance to the application before it.

Section 170(CG)(3)(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination

[126] The Commission is not persuaded that this statutory provision has any relevance to the application before it.

Section 170CG(3)(e) any other matters that the Commission considers relevant

[127] An issue arises in relation to the extent to which the Respondent, in carrying out its dismissal of the Applicant on 26 September 2002, acted contrary to the Recommendation of Deputy President Hampton of 24 September 2002[41].

"(a) THAT Woolworths fully investigate the issues and genuinely consider any response from Mr Pitt and the SDA prior to reaching any conclusions regarding the allegations as now made.

(b) THAT prior to implementing any decision to apply disciplinary action (if any) to Mr Pitt, Woolworths advise the SDA of the conclusions reached and the nature of any such proposed action. Any response by the SDA in that context, including any concrete proposals to achieve more mutually acceptable conduct and a basis for the improvement in relations between Mr Pitt and relevant Management, should be genuinely considered and taken into account".

[129] Notwithstanding the finding in respect of section 170CG(3)(c), the Commission is not convinced on the evidence that, as matter of process, the Respondent failed to have regard for Recommendation (a) above.

[130] The Respondent specified its allegations in correspondence dated 23 September 2003. The Respondent met with the Applicant and his union representatives the following day and discussed the allegations for some two hours, during which time the Applicant and his representatives put their views on the various issues relevantly detailed in the letter of 23 September 2002. The Respondent then undertook an investigation[42] into the issues, as it indicated it would do at the conclusion of the meeting of 24 September 2002. Pursuant to the outcome of that internal investigation, the Respondent subsequently dismissed the Applicant in a further meeting with the Applicant and his union representatives on 26 September 2002. A formal letter of termination was provided on 2 October 2002[43].

[131] There is no satisfactory evidence before the Commission that the Respondent did not, in completing this process, have appropriate regard to Mr Pitt's and the SDA's responses to the letter of 23 September 2002 through the following meeting and its subsequent deliberations. The difficulty, however, is that having relied upon the history of the relationship between itself and the Applicant, there is no evidence that that history was `fully' investigated, as embodying one of the `issues', as Deputy President Hampton recommended, particularly so that Ms Allington on her own admissions knew next to nothing about the prior history of the relationship between the Applicant and the Respondent.

[132] The Commission is also of the view that the Respondent did not abide in strict terms with Deputy Hampton's Recommendation (b). The SDA instigated the application under section 170LW of 24 September 2002, had represented the Applicant in the lengthy meetings of 24 and 26 September 2002, and had corresponded with the Respondent in relation to the disciplinary investigation[44]. In that latter correspondence, it expressly sought an opportunity to fulfil the expectations expressed in Recommendation (b).

[133] This finding is consistent with evidence given by Ms Allington under cross-examination:

"Now, can I then turn to recommendation B? You see that that recommends that prior to implementing any decision to apply disciplinary action Woolworths advise the SDA of the conclusions reached and the nature of the proposed action?---Yes.

And the purpose of that was to afford the union an opportunity to respond to any proposal that Woolworths intended to make?---My understanding is these were recommendations. The advice that the company took or that the South Australian branch of the company took was that they were recommendations and we were not required to advise the SDA.

So you chose to ignore the recommendations of the Commission?---The advice that we received was that we were not required to follow the recommendations. We certainly followed the fully investigating and considered Mr - we considered what Mr Pitt had to say.

I think we've already established that you didn't comply with recommendation A. What I'm asking now is do you agree that the company ignored recommendation B?---The company's advice was that we were not required to comply with the recommendations.

Yes, and you ignored recommendation B?---It wasn't ignored, it was certainly considered and a decision was taken not to comply with that recommendation, is my understanding"[45]

[134] In Windsor Smith v Liu and others[46], a Full Bench of the Commission said:

"Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a " fair go all round" is accorded to both the employer and the employee concerned."

[135] The expression `a fair go all round' appears in section 170CA(2) of the Act. Section 170CA(2) provides:

"The procedures and remedies referred to in paragraphs (1)(a) and (b), and in the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a `fair go all round' is accorded to both the employer and employee concerned."

[136] Having regard to such an approach, the Commission finds that the Applicant's termination by the Respondent was harsh, unjust or unreasonable in that the Respondent, while possessing a valid reason for the termination of the Applicant under section 170CG(3)(a), was not afforded the procedural opportunities that were required to be given effect under the Act.

[137] Having so determined the application, it is now incumbent upon the Commission to consider the issue of remedy under section 170CH of the Act.

[138] Directions will be issued forthwith in this regard.

[139] If they can reach agreement, the parties may apply to have submissions in this regard dealt with `off-the-documents', rather than by formal proceedings and oral submissions.

[140] The parties, of course, are invited to attempt to settle the issue of remedy between themselves, at first instance, on the basis of the decision above.

Stanley T of Counsel appeared for the Applicant, instructed by Bourne Lawyers

Slattery P of Counsel appeared for the Respondent, instructed by Phillips Fox

Printed by authority of the Commonwealth Government Printer

4 See, for example, Exhibit R1 in these proceedings, witness statement of R Atkinson, attachment RJA31A for the period up to November 2000 only.

7 See Transcript of these proceedings, 30 April 2003 at PN 2643 - 2661.

10 See, for example, Exhibit R1 in these proceedings, witness statement of D Priestley, attachments DMP3 and DMP4.

11 For the relationship between this finding and section 170CK(2) of the Act, see Treadwell v ACCO Australia Pty Ltd (unreported, IRCA VG 538/97, 16 December 1997, Parkinson JR).

13 For example, see Transcript of these proceedings, 28 April 2003, at PN 134 - 161.

14 See Transcript of these proceedings, 28 April 2003 at PN 570.

15 See Transcript of these proceedings 28 April 2003 at PN 309 - 322.

16 See Transcript of these proceedings, 28 April 2003 at PN 256.

17 See, for example, Exhibit A2 in these proceedings, witness statement of P Gibson.

18 Re Dispute at Broken Hill Pty Co Ltd Steel Works Newcastle (No 2) (1961) 60 AR(NSW) 48 at 66.

19 See Exhibit R1 in these proceedings, witness statement of R Atkinson; see Transcript of these proceedings, 28 April 2003 at PN 730; see also Exhibit R1, witness statement of D Priestley, attachment DMP 3; and Transcript of these proceedings, 28 April 2003 at PN 923.

20 See Transcript of these proceedings, 28 April 2003 at PN 926.

21 See Exhibits A8, A9 and A10 in these proceedings as discussed above.

22 For example, see Transcript of these proceedings, 28 April 2003 at PN 952 - 956.

23 Exhibit R1 in these proceedings, witness statement of C Hogg, attachment CSH3.

24 The Commission has tempered, to the extent necessary its regard to Ms Allington's evidence on grounds that she was in attendance in the proceedings, in her role as instructor to the Respondent's advisors, at the time other witnesses gave their evidence. See Transcript of these proceedings, 28 April 2003 at PN 38 - 39 and 30 April 2003 at PN 2959 - 2967.

25 See Transcript of these proceedings, 28 April 2003 at PN 77 - 78.

26 See Exhibit A1 in these proceedings, witness statement of M Pitt at PN 105; see also Exhibit R1 in these proceedings, witness statement of L Allington at PN 32 - 33 and attachment LMA3.

28 See Exhibit R1 in these proceedings, witness statement of D Boswell at PN 13.

29 See Exhibit R1 in these proceedings, witness statement of D Boswell, attachment DJB2.

30 See Exhibit R1 in these proceedings, witness statement of D Boswell at PN 13 and 15.

31 Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff (1937) 3 All ER 67.

32 See Transcript of these proceedings, 30 April 2003 at PN 2483.

33 See Transcript of these proceedings, 28 April 2003 at PN171 - 173

36 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

40 Exhibit R1, witness statement of L Allington, attachments LMA3 and LMA4.

41 PR922774. This Recommendation was made following an application by the SDA under section 170LW of the Act regarding disciplinary action faced by the Applicant.

42 See Exhibit R1 in these proceedings, witness statement of L Allington, attachment LMA3.

43 See Exhibit R1 in these proceedings, witness statement of L Allington, attachment LMA5.

45 See Transcript of these proceedings, 30 April 2003 at PN 2330 - 3235.