The Facts
65 The only direct evidence of the conversation on 5 February 2016 between Fahour and Metcher was given by Fahour. Metcher was not called. At the time that he gave his evidence, Fahour was no longer employed by APC and was working as the Managing Director and CEO of a financial services company.
66 Fahour first commenced employment with APC in February 2010 in the role of Managing Director and CEO. That was the role he held at the time of the conversation with Metcher. Before dealing with the conversation itself, there are some background matters that Fahour and others gave evidence about which provide a relevant context.
67 APC utilised over 50,000 direct and indirect employees. It had, at the time, a 4 level management structure with about 10 people on an executive committee and a second layer of 30-40 managers at a management committee level. Walsh was at that level. There was a third level, the "senior leadership team" of about 200 managers, followed by a fourth level of some 1,000 managers. Michael Newton was at that fourth level. Whilst Fahour had regular contact with Walsh, he had no prior contact with or knowledge of Michael Newton before 5 February 2016.
68 Fahour deposed that in late 2013/early 2014, APC began to develop a reform program ("APC reform program") designed to save thousands of jobs and APC's business from looming significant financial loss. The APC reform program was designed to transform APC from being a letter delivery company to a parcel delivery company. It was described by Fahour as the largest reform in APC's history. The Commonwealth Parliament approved the APC reform program in late 2015 and the implementation of those reforms began in January 2016.
69 Of the 30,000 or so employees directly employed by APC, Fahour deposed of his understanding that around 22,000 were members of the CEPU. The primary contact with the CEPU was through its National Secretary but contact on State-based issues occurred with other officials. In relation to New South Wales, where the largest number of employees of APC resided, the contact for him and APC was largely with Metcher.
70 Fahour described his understanding of Metcher as someone who had a very long history in the CEPU. He said that what struck him most about Metcher when he met him was that he almost had an obsession with the everyday employee, those at the bottom of the income pile, for whom he felt a special connection. Fahour considered that he had very professional dealings throughout most of the time he interacted with Metcher until the APC reform program began, when Metcher seemed concerned about how management was going about the path of reform. He described Metcher as "cynical".
71 Fahour also felt that something happened in 2015 to Metcher which changed the nature of his interaction with APC. A number of communications were made by Metcher on "regular issues" in which Metcher seemed quite antagonistic and quite agitated. In about mid-2015, Fahour was notified by the National Secretary of the CEPU that he would no longer deal with Metcher who was taking a leave of absence and Metcher "disappeared" for the second half of 2015. Fahour's understanding of that absence was described by him as "a medical absence" which he later suggested was mental health related.
72 Fahour deposed that in late January 2016 he was conscious that pretty serious accusations were being made by Metcher about APC failing in its workers' compensation unit. He was conscious of various communications forwarded by Metcher on the issue. Metcher became particularly involved in the case of Ms Leanne White ("White"), which he viewed as a "primary case study to what [was] occurring within the [APC] workers' compensation department in how claims are being managed".
73 From 22 January 2016 to 3 February 2016 email correspondence ensued between Metcher and senior executives at APC, including Walsh, in relation to alleged defects in APC's workers' compensation system, and concerns relating to White's case. In that correspondence Metcher repeated an intention to publicly expose APC "in Canberra" in relation to those concerns and also the CEPU's intention to commence legal proceedings.
74 It is in the context of this communication that Fahour emailed Walsh on 3 February 2016 at 9.16am requesting that she get together with Blake, Nick Macdonald, General Counsel and General Manager, Assurance (Corporate Centre) ("Macdonald"), Darryl Newton, Chief Risk Officer ("Darryl Newton"), Paul Burke, Corporate Secretary and General Manager, Government Affairs ("Burke"), Blee and Laz Cotsios, Group Executive, Business Services and "lay out the allegations" made by Metcher and propose a "very quick review".
75 The communication emphasised the urgency of the matter, requiring the review to "begin on Friday (very important that it is documented as beginning this Friday)". It stated that the questions "we need answered in the next 4 weeks" include the allegations made about workers' compensation and payments, the current process for handling claims and any improvements that can be made, whether there is any basis in the White case and also the best process "to handle Union escalation and deal with issues…distracting the whole Organisation". This "quick review" became what I will refer to as the "Leanne White Review".
76 Although chronologically out of order, it is desirable to here set out the conduct and findings of the Leanne White Review.
77 The Leanne White Review was carried out by Darryl Newton, who chaired the committee and had management accountability for the performance of the Review, Roger Sweet, Senior Manager, Internal Audit, BRM Risk Management, an external audit firm, and Tim Lyon ("Lyon"), former Assistant Secretary of the Australian Council of Trade Unions ("ACTU"), who was engaged as an independent reviewer.
78 The review was to investigate two matters: first, the conduct of White's workers' compensation case, and second, to consider the management activities of the workers' compensation unit. The review involved conducting interviews with ten APC personnel, including Blee and Michael Newton, interviews with White and Metcher, and the review of over 100 documents and over 200 emails. The final report was released on 20 April 2016 and was provided to a broader group of people, including Fahour, Metcher, Lyon and Michael Newton.
79 The report found that the management of her claim resulted in a "poor experience" for White and that she had experienced delays and errors, some of which resulted in "technical non-compliance with procedural requirements under the [Safety, Rehabilitation and Compensation Act 1988 (Cth)]", however none of which constituted a breach of that Act. The review found that all payments had been made to White and her sick and annual leave balances were correct and that there had in fact been a minor overpayment.
80 The report noted that the manner in which concerns had been raised by the CEPU "has often not been conducive to their resolution", and that the "volume, tone, timing and escalation of communications, along with demands for sometimes unreasonable timeframes for responses and regular threats of external action has hindered the ability for the claim to be effectively managed". The report further stated that this had also resulted in "significant negative personal impacts" to some APC staff.
81 Returning to events of 3 February 2016, Fahour agreed that he called for the Leanne White Review, in part, because Metcher was "ratcheting up his concerns" by raising his allegations with other union officials. Fahour said that he was concerned about the escalation of the issue and, in circumstances where APC was seeking to implement the APC reform program, the issue represented a "significant distraction". Fahour considered that APC may learn something from studying White's case to see if there were any wider implications.
82 Fahour's decision to have a review of workers' compensation practices occurred in the context that Fahour was aware that, before he joined APC and in 2009, APC's injury management unit and workers' compensation system was the subject of a Parliamentary review by the Senate. He described his understanding that that review had been preceded by a one-year campaign (presumably by the CEPU) which had made claims about failures in the way APC managed workers' compensation. He said that APC had agreed "to a bunch of undertakings" in relation to the Parliamentary review. In that context and in January 2016, when allegations made by Metcher of failures in APC's workers' compensation unit were being received, Fahour deposed that he and Walsh were "concerned deeply" because APC had just received approval from the Senate for the APC reform program. Fahour said this:
And, of course, in the back of my mind, I was deeply concerned about that, so what then I tried to do, without making this thing bigger than Ben Hur, rather than boiling the ocean, as such - what I suggested to [Walsh] is this Leanne White case seems to be becoming much bigger than what it really seems, but maybe we can learn something from that case by studying it to see if there's any wider implications. So we had developed, over time, this terms of reference to have a short, sharp review so that when I did face the Senate, I was in a position to be able to respond to the allegations if they were the case.
83 Earlier in his evidence, Fahour deposed that he had anticipated that the allegations that were being made by Metcher might find their way into the Senate estimates program and that he had suggested that APC had three or four weeks to prepare an answer to the allegations that he contemplated may be raised. That was a motivation for conducting the Leanne White Review and appears to have been the motivation for Fahour requiring, in his 3 February 2016 email, that the review be conducted urgently with answers "in the next four weeks".
84 At 9.29am on 4 February 2016 Metcher sent a further email to Walsh, this time copying in Fahour, in relation to White's case. In that email Metcher stated that he intended to present White and other sick and injured APC workers as examples of how APC treats its sick and injured workers and manages their claims, when in Canberra on the following Monday and Tuesday.
85 Later, on 4 February 2016, Metcher attended a meeting of the APC Workers' Compensation Reform Forum via phone link from Sydney. Blee and Michael Newton were in attendance. It was at this meeting that Metcher informed Michael Newton that he was in possession of Project Dove documents. Michael Newton deposed that he told Metcher that he was happy to coordinate another meeting to discuss Project Dove to which Metcher laughed down the phone. Michael Newton deposed that Metcher's comments caused a "flurry of activity" and a "sense of panic" at APC.
86 At 9.03am on 5 February 2016, Walsh sent an email to Metcher detailing how APC was taking proactive steps to address the complaints that he had been making regarding White, and noting that Metcher's complaints about White and the workers' compensation system generally were being taken seriously. In response to the email, at 10.48am Metcher emailed Walsh (copied to Fahour) stating that APC management and himself were "embroiled in a bitter brawl" over APC's workers' compensation management systems. He concluded the lengthy email by stating that "Operation Dove" had been leaked to him, and that Michael Newton had confirmed to him that it existed, and further "this is all I needed to know to what is occurring with the present [workers' compensation] strategy and attack on sick and injured workers by [APC]." Metcher concluded the email with a threat of exposing APC. Fahour deposed that he hadn't read this email.
87 At 11.54am on 5 February 2016 Fahour sent Metcher a letter attaching an explanation about the Leanne White Review and its Terms of Reference.
88 At 12.32pm, less than an hour after Fahour sent his letter to Metcher, Metcher emailed Fahour. He expressed his disappointment that the proposed Leanne White Review was only an internal review, during which "life goes on as normal". He then added the following line:
In addition - Michael Newton's 'Operation Dove'!
Got to be kidding me.
89 The email was signed off by Metcher with: "Return to Sender".
90 Fahour deposed that he read that email sometime between 12.32 and 2.17pm on the day it was sent. When he read it, he did not know who Michael Newton was. Nor did he know what "Operation Dove" was. He said that, at that time, he had never heard of "Operation Dove".
91 At 2:17pm on 5 February 2016 Fahour forwarded the email he had received from Metcher to Walsh asking her "Who is Michael Newton and what is Operation Dove?"
92 Later that afternoon, and before Walsh had responded to Fahour, Metcher and Fahour spoke by phone. The call took place at some time between 2.17pm and 5pm.
93 Before recounting the evidence of the critical conversation between Fahour and Metcher on 5 February 2016, it is convenient that I express my reservations about the reliability of the evidence given by Fahour. In particular, those concerns attend the evidence Fahour gave about that critical conversation as well as the conversation Fahour later had with Walsh and the evidence given by Fahour as to what motivated the actions he took on 5 February 2016, including his decision to remove Michael Newton from his position.
94 In assessing the reliability of the evidence given, including that of Fahour, I have had regard to the following considerations conveniently collected by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [307]-[309]:
[307] Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness while giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest or unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence.
[308] Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. Other witnesses may be able to give evidence in an appropriately confident and direct manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see Fox v Percy (2003) 214 CLR 118 at [30]-[31] and the cases there cited.
[309] Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events. As Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') (1924) 20 Ll L Rep 140 at 152; cited in Fox v Percy at [30]:
… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
95 The events Fahour gave evidence of occurred some two and three quarter years prior to him giving that evidence. It would be understandable if the detail of what was said and the detail of Fahour's reactions and his own thought processes were lost or diminished by time. That is particularly so given that Fahour was a very busy CEO of a very large corporation and, it may be assumed, most of the events in question were not of much significance to a person in that position at the time they occurred. But my concern with Fahour's evidence is not about any professed inability to recall the detail. To the contrary, most of Fahour's evidence on these matters was given by a person who gave the impression that he mostly had very good recall. However, the evidence was so plagued with implausibility and contradictions, including that the same events were described differently from one day to the next, that it was clear to me that the detail of these events was often being reconstructed rather than being accurately recalled. Many of the inconsistencies are recorded in the submissions made by Michael Newton. I refer to some of those inconsistencies below. As will also be apparent shortly, there were direct and substantial inconsistencies between Fahour's pleaded case and the evidence he gave about his critical conversation with Metcher on 5 February 2016. I have reached my view about the reliability of Fahour's evidence without the need to rely on those inconsistencies. I accept, however, that in the absence of any attempt made to explain those inconsistencies (including, if it were relevant, some explanation as to why an explanation could not be given), Michael Newton was entitled to rely on those inconsistencies to impugn the reliability of Fahour's evidence.
96 In my view, the evidence given by Fahour was peppered with speculative and often self-serving reconstructions of the detail of conversations and motivations, many of which are critical to the issues I need to determine. I do not reject all of Fahour's evidence. Some of it I accept as reliable. To some extent documentary corroboration has assisted. In other respects, I have regarded some of the evidence as plausible. I have used the apparent logic of events as a strong guiding consideration in assessing the reliability of Fahour's evidence. My general approach has been to only accept Fahour's evidence where it is corroborated by other evidence or is sufficiently consistent with objectively established events for me to regard the evidence as plausible.
97 The references to the evidence which Fahour gave which now follow are not intended to necessarily suggest my acceptance of that evidence. So much of Fahour's evidence which I do accept, and which is necessary for me to make findings about, will be set out later in these reasons.
98 Fahour's evidence was that he was sitting in his car on the afternoon of 5 February 2016, possibly in Sydney, when he participated in the call with Metcher. He was not sure who called whom and he did not know how long the call lasted. His evidence was that White and the proposed Leanne White Review, Project Dove, Michael Newton and the APC reform process were all discussed. Fahour deposed that the majority of the conversation was about "the workers' compensation system". He said that Metcher was obsessively concerned about what he perceived to be the injustice in relation to White. Fahour then said that towards the back end of the call the conversation turned to Project Dove and Michael Newton. Given the importance of the conversation it is best that the account given in chief by Fahour be set out largely in full. For ease of reference I have emphasised some elements I consider to be most significant:
he - he raised once again - he said - and really he said, 'You know, [Fahour], you know, you've gotten through the Parliament this reform program of yours and you've made all these promises about saving people's jobs and it's all about, you know, transferring them over and that's what your intention - that you told them was, but here you are in the background working out how you're going to hurt the most vulnerable of your employees and our members and those that are injured.' And I said, 'What are you talking about?' He said, 'Operation Dove.' And I said - I said, 'Is this a joke? What is Operation Dove?' He said, 'You know what it is.' I said, 'I have no clue. I haven't heard what it is. You know, I - I tried to get hold of [Walsh] to find out and I have not been able to get an answer. So what are you talking about?'
And what did he say?---Well, he said, 'You're - I've got some slides and it shows that you're planning, through this operation, to fire 3000 or so people so that you can save a tonne of money and you think by saving that money, you're going to save [APC] but you're going to do it on the back of the most vulnerable, injured, hurt people in the company. These are the posties, the staff members.' He - and - and he said some, you know, some words against me.
Doing the best you can, what can you remember the words - about the words he used and what he said?---Well, when - when Mr Metcher is angry, his language can be quite vile and he was upset because he thought - he thought, and I might say completely wrongly, that I was somehow secretly plotting behind the scenes to - to - to fire the people that I have spent five years working on to help and support and to take care of. And he - he - he then said words to the effect, 'You know, do you not have any morals? Do you have any values? How could you do this to these people? These are - these have given their heart and soul to the company and look what you're doing to them', blah, blah, blah, blah, blah. And then the first time, you know, he mentioned any other name - then he said - then the next person he went after was Catherine Walsh and he said, 'I've worked with her for all these years and I can't believe that she's turning her back, as the head of HR, on these injured people.'
And did he mention anyone else from [APC]?---He mentioned very much in passing - and he said something to the effect, 'And your henchman,' something - some word to that effect, 'Michael Newton's doing all your dirty work for you in this analysis that I've got here or in these spreadsheets that I've got here or these slides,' or something to that effect.
And did you say anything in response to that?---I said, 'How can I have somebody doing my dirty work for me in the background when I don't even know who he is?' He said, 'You know who he is. He's done all this work for you.'
And I said, 'I don't.' And then because he could see that I actually [sic] no answer, he then went back at that point to accusing [Walsh] and I of all sorts of accusations that, quite frankly, are a bit unfair and, well, that are wrong, but just not very nice.
Again, what can you recall about the words he used in making any accusations?---He was just really, really angry that we were lying, that we were deceiving the Australian people about our true intention of how we were going to save [APC]. He thought that we were going to fire and hurt the livelihoods of all these injured people who were the most vulnerable. He - he was deeply and emotionally - beyond anything I've ever seen in my life felt that he was the last man standing to take care of these 3000 people. And I said to him, '[Metcher], I remind you these are my staff and I don't need you to tell me this point. I will take care of my own people.'
Can you recall anything else that he said during the call, anything else that you said to him?---I raised several times an opportunity to do this - this - the - a more thorough review about how we can do this, about how we can tackle the Workers' Compensation review. And then, he said to me along the lines, you know, you -'You're about to launch this Operation Dove and I'm going to make sure that I expose you and all your staff for what you're about to do.' And I said to him, 'I think you're exaggerating, and there's nothing going to occur about this because I don't know anything about it.' So he was very focused on - he thought there was something imminent that he had stumbled upon that we were about to do, and he couldn't be further from the truth.
99 Fahour was reminded by his Counsel about the evidence he had given that Metcher's language can be vile and was asked whether there was any swearing during the phone call. Fahour confirmed that there was. He then gave the following evidence about Metcher's language and how the call ended (emphasis added):
Well, you see, he - he was really, you know, you fucking bastards, you have - you're going to fuck these people over, and how fucking dare you, you know, treat injured people this way, you know. They're - they're hurt. They're at home and they can't pay their mortgages. You're going to fucking ruin their lives. You're going to - you're - you're going to send people to, you know, suicide and things like that. And it - it really - the language was one thing, but it was quite emotionally distressing. Really emotionally distressing actually.
100 Despite the admission made in his pleading, Fahour denied that Metcher had made a demand that he shut down or cancel Project Dove, or said anything that he interpreted as a demand made by Metcher that he shut down or cancel Project Dove. Fahour denied that he had agreed with Metcher that he would shut down or cancel Project Dove. He was also asked by his Counsel whether, during the phone call, Metcher had demanded that he remove Michael Newton from his position or from the workers' compensation unit or whether Metcher had said anything which he had interpreted as being a demand to that effect. Fahour denied that such a demand had been made or that so much was suggested by what Metcher had said. He also denied that he agreed with Metcher that he would remove Michael Newton from his position or from the worker's compensation unit. He added that one of the statements made by Metcher was something along the lines of "I don't give a fuck what you do, you do what you do and I will do my job".
101 Although not mentioned by Fahour in the initial account of the conversation given by him in chief and set out above, in cross-examination, Fahour agreed that during the conversation Metcher had made a number of "threats". Fahour deposed that Metcher said that he would do certain things, that he had uncovered this conspiracy and that he was going to stop it. One of the "threats" made by Metcher was that he would organise protest rallies. Metcher also threatened industrial action. Fahour thought that Metcher was referring to the taking of "legal" industrial action that APC could not stop. He agreed, however, that it was most likely that all that Metcher said were words to the effect "we are going to take industrial action". Based on that threat about industrial action, Fahour came to the view that there was "an impending disaster looming from an industrial point of view". Another threat raised by Metcher was publicity that could be instigated - publicity about Project Dove. This threat made Fahour concerned that Metcher would spread misinformation about the APC reform program. Metcher also raised, as another threat, instigating legal action against APC. Fahour said that Metcher mentioned "some legal threats, because he seemed to have some information that could prove that we had breached the Act".
102 Later in his cross-examination (on the next day of the trial) Fahour sought to deny that Metcher had uttered any "threats" saying that Metcher "did offer a number of actions that he would take". Despite having himself used the word "threat" several times on the previous day, Fahour disagreed with that characterisation on the basis that a threat meant "if you don't do A, I am going to do B", whereas he deposed that what Metcher was saying was "I don't care what you do". Fahour insisted that Metcher had said he would do a number of things "anyway", irrespective of whatever Fahour did.
103 In cross-examination, Fahour described Metcher as having got "extremely emotional" during the conversation. Metcher accused Fahour of lying and got "quite verbal. The language really escalated". Fahour described Metcher as being absolutely convinced that he and Walsh and the management team "were up to some big, massive program to fire 3,000 people". To Fahour's protestations that Metcher was wrong and that there was no conspiracy, no secret plan, Metcher said "I've got slides". Fahour described the issue that Metcher "got most distressed about" was that he thought that Fahour and his team were working to fire 3,000 people. It was then that Metcher "got emotional and his voice really elevated. And he used some language which was quite profane".
104 Fahour agreed that Metcher had expressed very strong negative views about Project Dove and when asked whether it was clear to him that Metcher didn't want Project Dove to proceed, Fahour said "[h]e didn't tell me that. But I can assume that that's something he wouldn't want done."
105 When it was later suggested to Fahour that Metcher's focus was on Project Dove, Fahour said that his focus was "on exposing me and [APC]…that we were doing something - breaching the Act". Fahour said that Metcher had some legal action that he was going to take to expose APC and that he was going to organise political rallies against APC. Fahour accepted that Project Dove was part of the focus but stated that the mismanagement of White's case as well as Metcher's view that the APC reform program "was flawed and not true" was also at the heart of the discussion.
106 Fahour confirmed that Michael Newton was mentioned during the conversation. He was reminded of his evidence that Metcher had referred to Michael Newton as "your henchman". Fahour was asked what he understood by that. He said "I just assumed he meant he was the guy doing my dirty work" and that the "dirty work" was the secret plan to sack 3,000 employees.
107 Fahour denied that Metcher had said he would do "those things", unless Fahour cancelled Project Dove or unless Fahour removed Michael Newton from his position as National Compensation Manager. Fahour also denied that Metcher had said during the conversation, that he considered Michael Newton to be the cause of the problems with APC's workers' compensation system.
108 Despite the admission made by his pleading, when asked whether Metcher had raised during the course of the telephone call that he could not work with Michael Newton anymore, Fahour said "I don't recall him saying those words". To the suggestion that Metcher had said words to the effect that his working relationship with Michael Newton had broken down, Fahour said "No, he didn't say it like that". When asked if Metcher had said anything about whether he was prepared to continue working for Michael Newton, Fahour said that what Metcher said about Michael Newton was that he was "your henchman". Fahour stated that Metcher described Michael Newton as one of Fahour's underlings out there doing his dirty work for him, trying to fire 3,000 injured workers. Fahour also denied that Metcher expressed any dislike for Michael Newton.
109 There was evidence of Fahour's reaction to his conversation with Metcher and the actions he took in response to it. Fahour deposed that once he was able to compose himself after the conversation with Metcher, he sat in his car and thought through "how do I avoid what seemed to be an impending disaster looming from an industrial point of view". He said that he was concerned that Metcher was going to use a political rally, and that there was a political meeting of some sort in the lead up to "the Senate that was going to derail the reform". By that, I understand Fahour to be referring to committee hearings held as part of the Senate estimates process which he feared would be used to derail the APC reform program. He also said that he had "the industrial actions looming" and that he thought about how "do I get this [workers' compensation] review done". He said that he then called Walsh.
110 Fahour deposed that he told Walsh of his conversation with Metcher. He paused to ask her "who is Michael Newton?" To that, Fahour said that Walsh described Michael Newton as a mid to lower-level manager who works in the workers' compensation unit. Fahour deposed that he then mentioned that Metcher had said something about Operation Dove and the firing of 3,000 injured workers and asked Walsh what all that was about, to which Walsh replied "its some desktop analysis that one of my staff, Emma Blee, is working on with the team to identify some opportunities of how can we deal with…the injured employees". Fahour stated that he then told Walsh that he did not know anything about it; that it had never been raised with him and it was the first time he had heard of it. He stated that Walsh replied that "it's just some analysis that somebody is doing". Fahour then said that he responded to Walsh as follows (emphasis added):
'Okay. Well, that's useful to know.' I said, 'But it seemed to me, from what I gathered, [Metcher] was very agitated, very concerned that we are secretly plotting to do this and that Michael Newton was leading this analysis and he had it in for these 3000 people, it seems. That's my impression that I've gathered. And I'm concerned that if Michael [Newton] is just doing his job, that somehow, he's going to, you know, be targeted in ordinary course of doing his job and I'm really concerned about that.'
111 Asked whether in the phone call he gave Walsh any instructions or directions, Fahour referred to four things as follows (emphasis added):
Well, after she had explained to me what was going on, I said to [Walsh], 'Look, [Walsh], I've thought this thing through, and I'm doing this a little bit on the fly, but I need to do something today because I'm worried about what's going to happen over the weekend, and misinformation is going to be spread about our reform program and this Operation Dove.' And I said, 'If this is just an analysis, the numbers don't sound right to me at all. As if we would ever, ever fire 3000 injured employees, let alone if it's even legal to do such a thing. We - this is completely in contrast. So do you agree with me that there is nothing to be lost by just stopping this analysis so that we can demonstrate unequivocally, at least to Greg Rayner, the national secretary of the union, that there is no substance to this secret project to fire 3000 people?' And she said, 'That - that is no problem at all. We can easily close that analysis,' is what she said to me. So I said, 'Fine. Well, that's an easy decision.' The second one of what I communicated - and I think was very clear in my mind - I said, 'Look, it's really important that the health and wellbeing of the people who are surrounding this area is protected, including you, [Walsh], because I've noticed you've been copping a lot with me, as you know, [Metcher's] fury, and I'm really worried about you and your health and wellbeing.' I said, 'I can handle it; I'm the CEO, and so, therefore, I can take this pressure. We've got 1000 things we're doing. I need you to get some help for yourself and any support, so let's talk about that.' So we talked about that. And then thirdly, I said, 'This review that we have to do on workers' compensation that we need to do, given that this person whom I don't know, Michael Newton, is heading it, can we park him aside somewhere else just temporarily while we sort out what's going on here and how we handle this because I don't want him to cop any flak from [Metcher] or anybody else. So just move him somewhere. Just don't let him be affected by this - this situation.' And then last, 'Can we catch up some stage early next week and talk about ideas that I've been developing of how we can do this workers' compensation review so that we can get agreement with the union movement that we would do that.' They - they were the - essentially the four or five things that I had come up with on the spot to defuse and to protect the organisation and the individuals within the organisation to the best of my ability.
112 Fahour also added that he asked Walsh to "by the close of business to discuss this with her team and to cease this Operation Dove analysis". He said that Walsh agreed she would do that.