Fair Work Act 2009

s.394 - Unfair dismissal

[1] This decision concerns an application made by Mr Robert Tiller (the Applicant or Mr Tiller) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Relationships Australia Western Australia Inc (the Respondent or RAWA).

[2] The Respondent objects to the application on the basis that Mr Tiller was not dismissed but rather resigned from his employment. In response Mr Tiller acknowledges he did tender a written resignation however he submits that he was forced to do so because of the conduct engaged in by the Respondent.

[3] At the hearing of this matter evidence was given by Mr Tiller. For the Respondent evidence was given by Ms Terri Reilly (Ms Reilly) the Chief Executive Officer of RAWA, Ms Susan Visser (Ms Visser) the Executive Director of RAWA and Mr Larry Chew (Mr Chew) the Senior Manager - Corporate Services and Human Resources of RAWA.

[4] Mr Tiller holds a Bachelor of Psychology from Texas A&M University, a Graduate Diploma in Counselling from Murdoch University and a Certificate IV in Relationship Education from the Australian Institute of Social Relations.

[5] Mr Tiller worked for Anglicare WA from mid-2007 until 2010 as a counsellor and couples counsellor as well as a domestic violence case manager and group facilitator for their Changing Tracks program for court-mandated men.

[6] From 11 August 2010 until 15 March 2018 he was employed by the Respondent as a counsellor and relationship educator.

[7] Mr Tiller worked as a counsellor in the RAWA's Counselling agency offering therapeutic support to individuals, couples, families and teens struggling with depression, anxiety, trauma, sexual abuse, relationship difficulties, communication breakdown and family functioning. He also worked as a relationship educator in RAWA's Community Education department where he facilitated adult-based psycho-education courses covering a range of personal development topics.

[8] Mr Tiller was also a men's counsellor and program facilitator for MensPlace which is a division of RAWA's Community Education department that offers services and programs for men.

[9] His evidence was that in his professional roles with men he has been privy to countless tragic stories of emotional and physical abuse from their partners including parental alienation from their children, strategic violence restraining orders and what they've seen as the loss of their lives and livelihoods resulting from family court decisions. He says he invested much personal time and professional training in learning how to work with men in ways that help them cope.

[10] Mr Tiller says he also always had an equal number of female clients on his RAWA counselling schedule as well as many long-term couples who've put their faith in his work and many have repaired their relationships as a result. He says he heard many of his female clients speak to the value of working with them specifically because he could offer a male perspective that they found useful and he received many glowing feedback forms from his female and male clients over the years.

[11] Mr Tiller engaged in monthly individual supervision and monthly group supervision in his counsellor role and quarterly individual supervision and quarterly group supervision in his relationship educator and MensPlace roles.

[12] Annually he participated in a minimum of 30 hours of professional development training offered in-house by RAWA. He supplemented this training with his own external continuing education all of which kept him informed of the latest academic research and evidence based treatments.

[13] He says his work performance was assessed annually in both the counsellor and relationship educator roles through a performance review process (two per year) which involved an in depth review of key performance indicators in a sit-down discussion with both his manager and supervisor present.

[14] Regarding performance review outcomes, his evidence was that he was always deemed competent in his respective roles by his managers and supervisors and he had never been performance managed for any reason during his employment at RAWA.

[15] In 2013 and late 2016 after his performance reviews Mr Tiller received pay rises signed off by Ms Visser, RAWA's Executive Director.

[16] Mr Tiller's evidence above regarding the regular supervision of his work, the periodic assessments of his performance, the positive outcomes of his performance reviews, the lack of any performance management of him during his employment and the pay increases he received was not challenged in cross-examination by the Respondent.

[17] I note there was evidence given by Ms Visser, when being re-examined, that Mr Tiller had been "...constantly under performance management...".[1] Surprisingly this was not mentioned in her witness statement. This evidence also seems inconsistent with Ms Visser having approved pay increases for Mr Tiller. Her evidence was also that Mr Tiller did not work with her on a day-to-day basis.

[18] No other evidence was given by any of RAWA's witnesses of any warnings or counselling of Mr Tiller of any kind throughout his employment.[2] Mr Chew, who amongst other things is the Respondent's Human Resource Manager, gave evidence that he was not aware of any performance issues at all concerning Mr Tiller and certainly was not aware he was under constant performance management as Ms Visser had said in her evidence. Mr Chew's evidence was that if this was the case he would ordinarily expect to be aware of that.[3]

[19] Considering all this evidence with regard to Mr Tiller's work performance I accept his evidence and I accept the evidence of Mr Chew. I reject the evidence of Ms Visser that Mr Tiller was constantly under performance management.

[20] Mr Tiller also gave evidence regarding his involvement with the Men's Focus Group. The Men's Focus Group is not a part of RAWA.

[21] Mr Tiller's previous MensPlace manager, from the beginning of his employment at RAWA until late 2016 when he retired, was Mr Cutler.

[22] Over those years Mr Cutler and Mr Tiller would attend a number of meetings of the Men's Focus Group each year. Some meetings of the Men's Focus Group were held at RAWA.[4]

[23] The purpose of the Men's Focus Group was to offer men working in the social services sector an opportunity to meet and discuss the challenges of working in the sector, ways of improving mental health service provision to men, information sharing and the occasional joke. Often guest speakers would present at meetings on their areas of expertise.

[24] The members of the Men's Focus Group would often debate new research or articles such as one written by Ms Bettina Arndt (Ms Arndt) and published in The Australian newspaper in 2016.[5]

[25] Ms Marion Dunn (Ms Dunn) had been Mr Tiller's manager for over two and a half years, and they had been colleagues since the beginning of his employment. On 12 February 2018 Mr Tiller stopped by Ms Dunn's office and asked if she'd been contacted by a Mr Pule. Mr Pule was also a member of the Men's Focus Group who had recently told Mr Tiller that he had contacted Ms Dunn. Ms Dunn confirmed that Mr Pule had indeed contacted her.

[26] Mr Tiller says that he asked Ms Dunn "Is this something I need to worry about?" and she said "Leave it with me." He says he didn't detect a serious tone in her response. She had said Mr Pule was also a personal acquaintance of hers and that she had dealings with him in the past.

[27] The week of 19 February 2018 Mr Tiller again spoke to Ms Dunn and she said that she'd had two conversations with Mr Pule and he'd sent her a collection of documents which she had read. Mr Tiller says he understood these to be the Men's Focus Group emails Mr Pule had previously mentioned to him but had not seen.

[28] He says Ms Dunn assured him the situation would "blow over." Ms Dunn advised him she was obligated to pass Mr Pule's correspondence on to Ms Visser who was away on leave.

[29] The evidence of Ms Reilly and Ms Visser is that they were made aware of the emails sent to Ms Dunn by Mr Pule.

[30] Ms Visser says she had been aware for at least a year that Mr Tiller was a participant in the Men's Focus Group and that they circulated information to each other, shared ideas and had face-to-face meetings including meetings at RAWA premises.[6] Her expectation she says was that in that group he would be adopting the same views as RAWA's philosophy.[7]

[31] Ms Dunn showed Ms Visser some of the emails and the attached content. Ms Visser's evidence in chief was that she found some of the material and content offensive and wrong.

[32] She was concerned Mr Tiller was circulating via RAWA email views that were inconsistent with RAWA's philosophy. Her evidence was Mr Tiller appeared to be endorsing views that domestic violence was not a gender-based matter primarily but was gender neutral. This view is that any domestic violence does not arise from a gender power imbalance. Her evidence was this view had been promoted by people such as Ms Arndt. Her evidence was this view is not supported at all by RAWA and is contrary to its philosophy.

[33] Ms Visser then provided some of the emails sent in by Mr Pule to Ms Reilly. Ms Reilly's evidence in chief was that these contained posts, comments and attached articles sent by Mr Tiller to the Men's Focus Group.

[34] Having read and considered the material Ms Reilly says she believed the material sent by Mr Tiller to the Men's Focus Group expressed a view materially inconsistent with RAWA's view.[8]

[35] She believed she needed to meet with the Executive team to discuss this matter before she did anything further. She did not believe it was appropriate to act on her own on this issue. This was the first time she said she had encountered a circumstance of this nature and a policy breach of something so central and fundamental to RAWA's practice.

[36] Ms Reilly then convened a meeting with the three Executive Directors being Ms Visser, Mr Michael Sheehan (Mr Sheehan) and Ms Kylie Dunjey on Tuesday, 13 March 2018.

[37] Her evidence was that prior to the meeting the Executive Directors had viewed the emails and had a chance to read them.[9]

[38] She says they all agreed the emails expressed a view that was a complete breach of RAWA policy on family and domestic violence and showed a view that was entirely inconsistent with RAWA's philosophy.

[39] Her evidence was the views expressed are not supported by credible evidence and have the very real prospect of failing to help the families RAWA are providing services to.

[40] Her evidence was that views that propose that domestic violence is not gender-based are not only wrong but dangerous.[10]

[41] Her evidence was at its highest these views propose that domestic violence is a conspiracy promoted by feminists.

[42] Ms Reilly's evidence was that the view that domestic violence is not gender-based is simplistic and frequently fails to appropriately identify domestic violence, adequately protect victims and assist perpetrators to control their actions.

[43] She was disturbed and dismayed that Mr Tiller was endorsing and supporting these views.

[44] She says she was troubled he was doing so using RAWA's email. She viewed this as potentially damaging the organisation's reputation.

[45] Ms Reilly says the other members of the Executive expressed their agreement with her views. They stated it was "a complete breach of policy" and she recalls some saying the views expressed were offensive.

[46] They agreed it was a serious matter that needed to be dealt with and they needed to act with complete agreement.

[47] They agreed the next step was for her and Ms Visser to meet with Mr Tiller and hear from him.

[48] Under cross-examination Ms Reilly was clear that she was reserving judgement about Mr Tiller's actions although she viewed them as breaching RAWA's policy. She wanted to know why he was doing this. She wanted to give him an opportunity to explain himself and she was clear that she had not decided before the meeting with Mr Tiller that he had to go.[11]

[49] Subsequently a meeting was arranged for Mr Tiller to meet with Ms Reilly and Ms Visser on 14 March 2018.

[50] Mr Tiller attempted to have Mr Sheehan (an Executive Team Member) attend as his support person. Mr Tiller in an email to Mr Sheehan at 3:47 p.m. on 13 March 2018 explained as follows,

"The meeting has to do with a former friend who couldn't see the comedic irony in a couple of benign Facebook posts and decided to dob me in, as it were, to upper management. I'm reasonably sure it's going to be a "flogging" vs and "execution" but it would be reassuring to have another man in the room who know something of my professional character etc" (sic)[12]

[51] Mr Sheehan replied that evening at 8:06 p.m. advising Mr Tiller he would unfortunately be on leave and wouldn't be able to come.[13]

[52] Notably the same day Mr Sheehan participated in the Executive Team meeting, where according to Ms Reilly's evidence, the other members of the Executive one of whom was Mr Sheehan had expressed their agreement with her views that Mr Tiller's emails were a complete breach of policy and some of the Executive had said the views expressed by Mr Tiller were offensive.

[53] Mr Tiller's evidence was that he understood the meeting that had been arranged would be a discussion regarding the documents Mr Pule had sent. However Mr Tiller had not at that point seen what documents Mr Pule had sent to RAWA and as events unfolded he was never at any stage shown these documents by RAWA.

[54] Ms Visser's evidence was that before the meeting with Mr Tiller she was made aware by Mr Sheehan that Mr Tiller had by email asked if he could be his support person but he had advised Mr Tiller that he was unable to attend. Mr Sheehan had also told her Mr Tiller was anticipating a flogging rather than an execution.[14]

[55] The meeting proceeded as planned on 14 March 2018. Ms Reilly and Ms Visser where present and Mr Tiller was by himself without a support person.

[56] The meeting lasted 90 minutes. No notes or minutes where taken.

[57] Ms Reilly began the meeting by asking whether he knew about the documents they had received from Mr Pule. Mr Tiller responded that he was aware of the documents but hadn't seen them.

[58] Mr Tiller's evidence was that he knew the documents contained emails that had been circulated between members of the Men's Focus Group from 2016.

[59] Neither Ms Reilly nor Ms Visser gave Mr Tiller a copy of the emails they were referring to either prior to or during the meeting.

[60] In fact nobody from RAWA ever gave Mr Tiller a copy of the documents that were sent to RAWA by Mr Pule.

[61] Ms Reilly stated, "These are a problem" to which Mr Tiller asked, for clarification, "What is the problem?" She replied, "This goes against our policy."

[62] Ms Reilly said that because he had shared a link to Ms Arndt's article[15] from his RAWA email address, he was aligning RAWA with Ms Arndt's conclusions on domestic violence.

[63] Mr Tiller says he explained that the article was sent in the context of ongoing discussions and ideas sharing within the Men's Focus Group, where the purpose was to improve service delivery for men in the community some of whom have been victims of domestic violence.

[64] Mr Tiller's evidence was that he said that sharing the article was never intended as a political statement on his part or to bring disrepute to RAWA.

[65] He said that sharing links to articles was a common practice amongst all of his RAWA colleagues and information and ideas exchange was part of their daily work culture. Mr Tiller's evidence was that Ms Reilly didn't respond and appeared to grow agitated.

[66] Mr Tiller says at one point he observed Ms Reilly move to the edge of her seat, in a sharp tone she said "Bettina Arndt is right wing" and challenged her credibility as a journalist. Mr Tiller says he replied that the article had been printed in The Australian newspaper to which Ms Reilly rolled her eyes.

[67] Mr Tiller said that Ms Arndt was a clinical psychologist and that her article had referenced a number of academic studies. He added that some of her findings matched his observations as a couples' counsellor where the male partner can often experience different forms of abuse and violence from his female partner.

[68] Ms Reilly restated that RAWA's domestic violence policy was clear that "violence is gendered" and Ms Arndt's article directly opposes RAWA's position that violence is primarily experienced by women.

[69] Ms Reilly stated that this was a serious matter and any views that propose domestic violence isn't gender-based is "not only wrong but dangerous."

[70] Mr Tiller's evidence was that at this stage he recalled realising that the meeting was more serious than he had anticipated and started to feel anxious that it wasn't going to end well.

[71] He began to defend his professional reputation by pointing out his consistent positive client feedback over the years in the form of client evaluations, emails containing client testimonials and phone calls received by RAWA admin staff. He also mentioned his pay rise following his most recent clinical performance reviews which were signed off by Ms Visser.

[72] Ms Visser spoke up stating that this meeting wasn't about his clinical work or performance but was about his values.

[73] Ms Reilly then produced two cartoons that he had posted on his private Facebook account some time earlier. She claimed they were evidence of unconscious bias implying that he was sexist. Mr Tiller says he disagreed adamantly and said a couple of Facebook jokes didn't reflect on his ability to do good work.

[74] Ms Reilly said that the issue was not related to his performance as a practitioner but about endangering the reputation of RAWA.

[75] He says that at this stage he apologised if his actions had been inappropriate and stated that he would be willing to reconsider what he shared via RAWA's email or on social media in the future. He says he asked, "What can I do to correct this?"

[76] Mr Tiller's evidence was that Ms Reilly didn't respond to his question and informed him that she believed his views were incompatible with the views of RAWA.

[77] He disagreed, noting that his client work had always followed RAWA's guidelines. Ms Reilly shook her head and interrupted saying that if they don't defend their policies they're worthless.

[78] Ms Reilly said that this was not about his clinical work it was about his compatibility with RAWA's values.

[79] He challenged this stating he believed his values were centred on his client's welfare and therefore in alignment with RAWA's values.

[80] Mr Tiller's evidence was that the message he was receiving was that there was nothing he could say in his defence to change their position. He says it seemed there was no possibility to rectify the situation.

[81] Mr Tiller's evidence was that Ms Reilly advised that in order to preserve his professional reputation he would be "allowed to resign instead of having a dismissal on his record."

[82] He says he remembers this well because Ms Reilly's tone quietened down and was now deliberate and formal. He didn't respond as he was stunned by her last statement and felt she was rounding up the meeting.

[83] Mr Tiller says he was never provided any invitation "to reconsider his views" and at no point did he ever say "I guess I'll resign" as claimed by Ms Reilly in her witness statement.[16]

[84] Mr Tiller's evidence was that at this final stage of the meeting he understood that negotiation wasn't an option and that their minds were made up. This was very upsetting and unexpected as he had always been very committed to RAWA and his client work. He recalls becoming emotional, leaning forward in his chair and feeling confused and overwhelmed.

[85] He does recall being advised that he could collect his things from his office at a later date with an escort to be arranged.

[86] His evidence was that at this point Ms Reilly called Ms Cross who led him from the office to the elevator and consoled him in his distressed state.

[87] Mr Tiller says he remembers he sat down outside the corporate office building in a state of shock and phoned his partner and told her "I think I just got fired." She expressed her own disbelief of the situation and later that evening suggested he call the HR manager for clarification.

[88] With respect to the meeting held on 14 March 2018 Ms Reilly's evidence was that she told Mr Tiller that the emails he had sent to the Men's Focus Group were a complete breach of RAWA policy. She told Mr Tiller he was posting views that were fundamentally different and inconsistent with RAWA's views on domestic violence.

[89] Her evidence was Mr Tiller replied that the views being expressed were mainstream. She told Mr Tiller that she couldn't believe after all the training and experience he had that he would agree with that view.

[90] She says Mr Tiller replied "But it's what I think."

[91] She told him that his views were very different from RAWA's.

[92] Ms Reilly says he asked if there was something wrong with him and she told him no it was about the departure in their views.

[93] She says Mr Tiller became upset. At this time she says she said to him, "I just don't know where we go from here."

[94] He said he was not prepared to change his views.

[95] There was some discussion about the fact that he believed his views were mainstream because they were published in newspapers and were shared by Ms Arndt.

[96] She denies that she said Ms Arndt is right wing or that the problem with Mr Tiller is that he is right wing.

[97] Ms Reilly agreed that the issue was about Mr Tiller's thoughts and beliefs.[17]

[98] Ms Reilly says that she again asked "Where do we go from here?" She says at this stage Mr Tiller said, "I guess I will resign."

[99] Her evidence was that in reply she said this was something he should think about.

[100] Mr Tiller said that RAWA had been his life and was like a family to him and he didn't think it would come to this.

[101] Ms Reilly says he then said that "He got it." Which she understood to mean he recognised the significance of the difference between his views and RAWA's.

[102] He raised the fact that he was a good performer and she replied this was not an issue of performance.

[103] She told him he had breached their policies and this was serious and they had to stand up for their policies otherwise they were worthless. She told him the policies needed to be upheld otherwise staff would question why we had them.

[104] Her evidence was that at this point Mr Tiller again said "I will resign" and asked about his entitlements. She told him if he did resign all of his entitlements would be paid.

[105] She asked if he would like to access the Employee Assistance program. She says she then said to Mr Tiller "Do you want to resign now or do you want to go away and think about it?"

[106] Her evidence was that Mr Tiller then said "I'll go away and think about it" and she told him this was fine.

[107] Her evidence was that at no stage did she say they would terminate his employment. She did not ask him for his resignation nor did she say that if he did not resign his employment would be terminated.

[108] After the meeting she spoke to Mr Chew and told him that they had met with Mr Tiller and that he had said that he would resign but that he wanted time to think about it and that he would get back in touch with them.

[109] Ms Visser in her evidence generally concurred with the evidence given by Ms Reilly.

[110] She says Mr Tiller told them that he held the views that were being expressed in the articles he had emailed particularly those of Ms Arndt. She says he said he felt relieved that someone else, Ms Arndt, was acknowledging the views that he shared that domestic violence was mutual and not based on gender as proposed by a feminist approach.

[111] She says she recalls Ms Reilly replying that it was their policy and philosophy that domestic violence was essentially seen as a gender-based issue around the power, historically and currently, held by men.

[112] She says Mr Tiller affirmed that he adopted the position of Ms Arndt and would stand by it. She says Mr Tiller said that he did not agree with the RAWA philosophy and that this philosophy was flawed and that he would not change his views.

[113] Mr Tiller agreed with Ms Reilly that he had breached two RAWA policies.

[114] Her evidence was that Ms Reilly said something along the lines that their policies were very important and they needed to enforce them.

[115] She says she became concerned that Mr Tiller had a bias to gender difference and that this in her view had the potential to put some of his female clients at risk.

[116] Her evidence in chief was that Ms Reilly said words to the effect of "Where does this leave us Rob?" At this point he said "I will resign."

[117] She took his statement to be an acceptance by him that he did not agree with RAWA's long held traditional philosophy and views and that he could no longer work at RAWA.

[118] She says Ms Reilly asked if he would like her assistant, Ms Cross, to draw up a letter of resignation but he said he would like to go away and think about it.

[119] There was then some discussion about his performance and Ms Reilly explained this was not a performance management meeting.

[120] She says towards the end of the meeting he again said "I am going to resign."

[121] Her evidence was that at no time did she or Ms Reilly say to Mr Tiller that his employment was going to be terminated nor that if he did not resign his employment would be terminated.

[122] Under cross-examination Ms Visser agreed that RAWA encourage debate, encourage discussion of domestic violence and differing views.[18]

[123] Ms Visser acknowledges that the emails that she provided to the Commission with her witness statement were just a portion of the emails that were given to RAWA by Mr Pule.[19] Ms Visser also acknowledged that the emails sent by Mr Pule would only have been a subset of Mr Tiller's communications with the Men's Focus Group.[20]

[124] Ms Visser agrees that in in a minority of cases gender is not a factor in domestic violence.[21]

[125] The evidence from Ms Reilly and Ms Visser is somewhat confused as to which of the materials that Mr Pule provided to RAWA she and Ms Reilly relied upon during the discussion with Mr Tiller. This is further compounded by the fact that they never provided Mr Tiller with copies of the materials they talked to him about in the meeting.[22] Whilst Ms Visser and Ms Reilly say the discussion with Mr Tiller was limited to the emails he had forwarded to the Men's Focus Group using his RAWA email[23] Ms Visser clearly was aware of some cartoons and Facebook posts and she agrees that some of these materials informed her opinion of Mr Tiller.[24] During the meeting with him however these were not raised with him, she says only the emails were mentioned.

[126] A number of the emails that Mr Tiller sent which Ms Reilly and Ms Visser were concerned about were dated 2016 and 2017. Obviously in practice this made it difficult for Mr Tiller to know which of all the emails he had sent since those dates Ms Reilly and Ms Visser were referring to in the discussion with him. Indeed the most recent email they had considered was dated May 2017.[25]

[127] Ms Visser agrees the issue was what Mr Tiller was thinking.[26]

[128] Ms Visser denied that Ms Reilly at any time said to Mr Tiller that he had to resign. Under cross-examination she confirmed that Mr Tiller on a couple of occasions in the meeting said he was going to resign. Her evidence was that Mr Tiller had indicated he was going to resign but he hadn't resigned because he hadn't at that point written a resignation letter.[27]

[129] Both Ms Reilly and Ms Visser were unshaken during cross-examination and consistent in their evidence that what occurred during the meeting with Mr Tiller was that it became very clear that his views were different to RAWA's policy on domestic and family violence. Mr Tiller agreed his views were consistent with those expressed in articles written by Ms Arndt that he had attached to emails he had sent to the Men's Focus Group.

[130] Under cross-examination both Ms Reilly and Ms Visser were unshaken that eventually Ms Reilly said words to the effective of "Where to from here Rob?" and it was Mr Tiller who then replied by saying that he would have to resign. Their evidence was that he said this twice during the meeting.

[131] Ms Reilly and Ms Visser were also unshaken in cross-examination that Ms Reilly at no stage said Mr Tiller would be given the opportunity to resign to protect his professional reputation or that he was told his employment would be terminated or he would be dismissed if he didn't resign.

[132] Mr Chew's evidence was that on 14 March 2018 at about 4:00 p.m. Ms Reilly spoke to him and told him that Mr Tiller had resigned. He asked if Mr Tiller had provided a written resignation and she told him that he would be making contact to send a resignation.

[133] I note this is different from Ms Reilly's evidence in chief as to what she told Mr Chew. Under cross-examination she explained that Mr Chew was mistaken that she had told him that Mr Tiller had resigned. Her evidence was that Mr Chew's statement that she had told him that Mr Tiller had resigned was an error of his memory. She was adamant that when Mr Tiller and she departed the meeting Mr Tiller had said he was going away to think about it and so she knew he hadn't yet decided finally to resign and she conveyed this to Mr Chew.[28]

[134] Whilst during these proceedings it became a point of difference in the evidence as to whether Ms Reilly said to Mr Chew that Mr Tiller had resigned or rather that she told him Mr Tiller had said he would resign but he wanted time to think about it, it is easy to understand that at the time this discussion occurred Ms Reilly may not have chosen her words with great care or that Mr Chew misunderstood her meaning or that both occurred. Both witnesses on this point were credible and my conclusion is that what Ms Reilly intended to convey to Mr Chew was that Mr Tiller had said he would resign but was going to think about it.

[135] The next day Mr Tiller rang Mr Chew and arranged to meet with him at 10:30 a.m.

[136] The evidence of Mr Tiller and Mr Chew are similar as to what they then discussed, but not identical.

[137] After some discussion about the meeting with Ms Reilly and Ms Visser Mr Tiller's evidence in chief was as follows,

He said if I was dismissed it would leave a "black mark" on my work record which would make it difficult to find another job.

He then said but if you resign no one will find out about what happened and you can "start fresh" somewhere else.

I asked Larry if those were my only options and he said "yes"."[29]

[138] Mr Tiller says they then discussed the likely amounts of his entitlements and some specifics of what to include in the resignation letter in terms of requesting that RAWA wave the four weeks' notice he would be required to give.

[139] After the meeting Mr Tiller drafted and emailed a letter of resignation.[30]

[140] Mr Chew's evidence was that when they met they discussed the meeting of the previous day. Mr Chew says he asked Mr Tiller a number of questions about what he had done. Mr Chew expressed his view that it might have been less serious if he was just in administration rather than as a counsellor. Mr Chew told him that RAWA do hold its beliefs strongly and with a view that its beliefs were in the best interests of the clients. Mr Chew said to him that if Mr Tiller publicly held views contrary to RAWA this could damage RAWA's reputation.

[141] His evidence was that Mr Tiller said to him that he understood the wider implications of the breaches of policy and Mr Tiller said to him that he had made a mistake and shot himself in the foot.

[142] Mr Chew's evidence was that after some time Mr Tiller said to him that he had therefore decided to resign.

[143] Mr Chew's evidence was that he explained that he needed a written notification and that Mr Tiller was required to give four weeks' notice or forfeit four weeks' pay.

[144] His evidence was that Mr Tiller asked how things would be different if he was dismissed rather than resigned. Mr Chew told him that if he was dismissed his employment separation certificate would note that his employment was terminated.

[145] Mr Chew's evidence was that Mr Tiller said to him that it was all clear to him and confirmed that he wanted to resign. He said he would send a written notification by email.

[146] Returning to the critical issue of how the meeting between Mr Tiller and Ms Reilly and Ms Visser concluded. There is obviously a conflict between the evidence of Mr Tiller and that of Ms Reilly and Ms Visser that goes to whether Mr Tiller was forced to resign. Having observed the witnesses give their evidence I found all three witnesses generally to be credible. Given that Ms Reilly and Ms Visser have similar recollections of the critical points in the meeting, which differ from Mr Tiller's evidence, I am satisfied that what occurred towards the end of this meeting was as they said. That is I find that Ms Reilly did not say to Mr Tiller that he would be given the opportunity to resign to protect his professional reputation. Nor did she say that his employment would be terminated, nor that he would be dismissed if he did not resign. I accept the evidence of Ms Reilly and Ms Visser that when asked "Where do we go from here?", or words to that effect, Mr Tiller volunteered that he would resign and he repeated this a second time towards the end of the meeting.

[147] In addition what was discussed the next day between Mr Tiller and Mr Chew was consistent with Mr Tiller considering whether or not he would resign and voluntarily choosing to do so.

[148] To understand the central issue being discussed in the meeting, that RAWA believed Mr Tiller's views were at odds with RAWA's views on family and domestic violence, it is necessary to appreciate the philosophy RAWA operates under.

[149] Ms Reilly's evidence was that the Respondent operates under a clear philosophy around family and domestic violence which is detailed in their policy. Her evidence was that the Respondent's position and government policy is that domestic violence is gendered and is predominantly against women.

[150] Her evidence was that while there are alternative views, including those that view domestic violence as not gender-based, these are a minority view and RAWA does not agree with those views or claims.

[151] Ultimately I accept it is for RAWA to determine what policies operate in its business.

[152] Mr Tiller's Employment Agreement[31] at clause 7.1 states that the policies and procedures form part of his Employment Agreement.

[153] The Employment Agreement provides at clause 7.5 that Mr Tiller as the employee,

"...agrees to abide by, and carry out with diligence his or her duties in accordance with all relevant policies."

[154] The relevant RAWA policies for the purposes of this matter are the "Family and Domestic Violence Policy and Procedures"[32] and the "Social Media Policy and Procedure".[33]

[155] The specific detail of the Social Media Policy and Procedure are not relevant suffice to say the policy seeks to ensure that employees are aware of their personal accountabilities and the potential pitfalls in using online social networking and that the image of RAWA is not negatively impacted by the social networking activities of employees.

[156] The Family and Domestic Violence Policy and Procedures document provides that,

The purpose of this policy is to build a common understanding of family and domestic violence across all RAWA program and service delivery areas, and to provide a consistent approach to family and domestic violence screening, risk assessment and risk management.

The definition, principles and guidelines referred to in this policy are to be used to inform the development of family and domestic violence procedures relevant to each program and service delivery area.

RAWA's family and domestic violence policy is historically framed by a feminist analysis of gendered power relations. This analysis argues that men have had status and privileges in society that have generally been unavailable to women, because of men's control of social structures and practices. Within this cultural context men have relatively 'more power' than women and children, and this frequently means they also have 'power over' women and children. In this social context family and domestic violence is often referred to as gendered violence or violence against women, and has largely been hidden and private.

It is recognised that a number of definitions of family and domestic violence exist.

The definition adopted by RAWA is referenced in the CRARMF:

Family and domestic violence is considered to be behaviour which results in physical, sexual and/or psychological damage, forced social isolation, economic deprivation, or behaviour which causes the victim to live in fear.

Family and domestic violence is the repeated use of violent and controlling behaviour by an individual against a family member, or someone with whom they have, or have had, an intimate relationship.

Violent and controlling behaviour does not only include physical assaults, but covers a wide range of behaviours that violate the rights of another person to safety, autonomy and wellbeing.

These violent and controlling behaviours include, but are not limited to, direct or indirect threats, sexualised assault, emotional or psychological abuse, economic control, property damage and social isolation (see 1.3.A1- Forms of family and domestic violence.pdf). These behaviours can be both criminal and non-criminal.

There is also an understanding that an Aboriginal' definition of family and domestic violence extends to include physical, emotional, sexual, social, spiritual, psychological and economic abuse, and can occur within families, intimate relationships, extended families, kinship networks and communities. Aboriginal family violence must also be understood within a historical context of colonisation and dispossession.

Central to this policy is the understanding that those experiencing violent and controlling behaviour are predominantly women (and children), and that those using violent and controlling behaviour are predominantly men.

It is acknowledged that in a minority of cases family and domestic violence can be broader than violent and controlling behaviour from a male to his intimate female partner. Violent and controlling behaviour can occur from females to males in intimate relationships, between same sex couples, between siblings, from adolescent children to parents, from adult children to parents, or from carers to people with a disability."

[157] Self-evidently the philosophy, at 1.3, which is the foundation of RAWA's Family and Domestic Violence Policy and Procedures, only concerns cases of family and domestic violence perpetrated by men against women or children. These are the majority of cases RAWA deals with. Whether and how this philosophy applies to the minority of RAWA's cases concerning violence perpetrated by women against men and children, violence between same-sex couples, violence between siblings, violence by adolescent children towards parents, violence from adult children to parents or violence from carers to people with a disability, all of which are acknowledged by the policy to occur,[34] is uncertain. This uncertainty will be problematic for RAWA's employees when undertaking their duties in accordance with this policy as they are obliged to.

[158] The policy document provides Guidelines at 2.1 that deal with a range of matters under the following headings, Screening, Risk Assessment, Risk Management, Determining the Level of Risk, Responding to the Level of Risk, Managing the Risk from the Man Using Violent and Controlling Behaviour, Safety Planning and Finally Confidentiality and Privacy. Where these Guidelines refer to the sex of the adult experiencing family or domestic violence or the sex of the adult perpetrator the former are on every occasion identified as a woman and the latter as a man, which on the evidence will be the case in the majority of cases where such violence occurs. However framing the Guidelines exclusively in this way is also likely to be problematic for RAWA's employees when dealing with the minority of cases where a man is not the perpetrator and/or the person experiencing the violence is not a woman or a child.

[159] Mr Tiller, and assumedly other employees of RAWA, is obliged by the terms of the Employment Agreement with RAWA to abide by and carry out his duties with diligence in accordance with all RAWA's policies. In this context RAWA's Family and Domestic Violence Policy and Procedures are not entirely satisfactory given the internal inconsistencies and deficiencies identified above.

[160] Whilst Mr Tiller is obliged to carry out his duties in accordance with the Family and Domestic Violence Policy and Procedures his Employment Agreement does not, on its terms, have the effect of denying him the freedom to hold personal views and beliefs that are at odds with RAWA's policies.

[161] Ms Reilly when asked under cross-examination whether there was any evidence that when seeing clients Mr Tiller had breached any RAWA policy she answered with a generalised statement that management did have some issues with him during his work with clients but the issues were worked through and were training matters as opposed to fundamental departures from policy and beliefs.[35]

[162] Whatever views and beliefs Mr Tiller did hold I find there is no evidence he had not been carrying out his duties in accordance with RAWA's policies.

[163] Section 385 of the Act provides that there are a number of elements that must be proven for a person to be found to have been unfairly dismissed. The first of these is that the person has been dismissed.

[164] Section 386 of the Act, set out below, defines when a person has been dismissed.

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

[165] This section of the Act prescribes that a person has been dismissed where they have resigned from their employment but were forced to do so because of conduct or a course of conduct engaged in by their employer.

[166] In this case there is no dispute that Mr Tiller tendered his written resignation, he submits however that he was forced to do this because of the conduct of RAWA and so for the purposes of section 385 of the Act, by virtue of section 386, he has been dismissed.

[167] A Full Bench of the Commission in O'Meara v Stanley Works Pty Ltd[36] considered the circumstances in which an employee's resignation can constitute a termination at the initiative of the employer as follows,

"Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term "initiative" and the convention giving rise to the statutory provisions, the Full Court said:

"These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment': Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

'I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that "initiate" means "to begin, commence, enter upon; to introduce, set going, or initiate": see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression "termination" in the Act, read in conjunction with Art 3 of the Convention which speaks of "termination ... at the initiative of the employer", a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.'

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because 'he felt he had no other option'. His Honour described those circumstances as:

'... a termination of employment at the instance [of] the employer rather than of the employee.'

'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'"

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

"However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous."

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (References omitted)

[168] In this case the onus is on Mr Tiller to prove that RAWA forced his resignation; that he had no real choice but to resign and so he did not resign voluntarily.

[169] Further relevant considerations were explained by the Full Bench decision of Doumit v ABB Engineering Construction Pty Ltd,[37]

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."

[170] As the Full Bench noted it will often be a narrow line distinguishing conduct that leaves an employee no choice but to resign from conduct that cannot be held to cause a resignation and separately where the employer's conduct and the bearing it has on an employee's decision to resign is based on the perceptions and subjective response of the employee, caution should be exercised in treating a resignation as forced.

[171] In this case the evidence is that during the meeting on 14 March 2018 when Ms Reilly asked "Where do we go from here?", or words to that effect, Mr Tiller volunteered that he would resign and he repeated this a second time towards the end of the meeting.

[172] Ms Reilly did not say to Mr Tiller that he would be given the opportunity to resign to protect his professional reputation. She did not say that his employment would be terminated nor that he would be dismissed if he did not resign.

[173] Both Mr Tiller's and Mr Chew's evidence was that the next day they discussed the differences between him being dismissed and resigning. It can be argued this shows he had been told by Ms Reilly he should resign rather than be dismissed, however in my view it can equally be taken to show he was considering his options one of which was to resign. It may have been the case that Mr Tiller's subjective belief was that his ongoing employment was untenable and that his dismissal was certain. However that is not the same as him objectively having no choice but to resign because of RAWA's conduct.

[174] Asking Mr Tiller during the meeting "Where do we go from here?" even in the context where Ms Reilly had strongly expressed her concern and disagreement with his views and beliefs did not leave him with no other choice but to resign and nor was his resignation the probable result of asking this open-ended question.

[175] Mr Tiller could simply have waited to see what RAWA did about the situation.

[176] I note that prior to the meeting with Mr Tiller, Ms Reilly had not sought advice from Mr Chew, RAWA's HR Manager. If Mr Tiller had not resigned after the meeting perhaps an approach other than dismissal might have been considered by RAWA. Mr Tiller might not have thought about it but it is possible alternatives could have being considered for him to remain employed but working under changed arrangements that alleviated RAWA's concerns. Instead Mr Tiller tendered his resignation which relieved RAWA of the burden of deciding how to deal with the situation.

[177] Considering what occurred there is no evidence that there was an ultimatum given to Mr Tiller during the meeting on 14 March 2018 that he would be dismissed if he didn't resign or that he should resign in order to preserve his professional reputation. Considering what occurred objectively whilst it was reasonable for Mr Tiller to understand that his employment was precarious his employer's conduct was not such that his resignation was a probable result. Mr Tiller was not forced to resign; rather Mr Tiller voluntarily exercised a choice to do so.

[178] My decision is that Mr Tiller was not dismissed by RAWA. Consequently this application will be dismissed.

[179] For completeness is appropriate to make some observations about how RAWA have dealt with this matter.

[180] According to Ms Reilly the critical meeting on 14 March 2018 was called to hear from Mr Tiller and to understand from him his thoughts and his actions.

[181] For the following reasons if Mr Tiller had not resigned as he chose to the next day that meeting would have been a precarious foundation on which to base any later decision to dismiss him.

[182] Firstly, Ms Reilly and Ms Visser had the view before the meeting that what Mr Tiller had done was a complete breach of policy and entirely inconsistent with their views. However Ms Visser also knew Mr Tiller believed the meeting would amount to at worst a flogging, but not an execution. Knowing this, before the meeting, no one advised Mr Tiller they viewed the issues as serious and his employment was possibly at risk. In addition they knew his support person was unable to attend but took no practical steps, such as adjourning the meeting, to ensure he had a support person present for what was such a serious meeting.

[183] The seriousness and intensity of the meeting with Mr Tiller is demonstrated by the fact that it lasted 90 minutes and was attended by the Chief Executive Officer and the Executive Director.

[184] Secondly, holding the Executive meeting to consider the issue before having heard from Mr Tiller gave every appearance of RAWA having prejudged this matter before meeting with him.

[185] Thirdly, Mr Tiller was never shown the documents RAWA was concerned about and which were referred to during the meeting. Even at the hearing of this matter there was confusion as to which of the documents Mr Pule had sent in that RAWA were concerned about.

[186] Fourthly, Ms Visser had been influenced against Mr Tiller by Facebook posts and two cartoons which she personally found offensive but RAWA say it was only the emails that were of concern. Whilst individuals will react differently to attempts at humour, judged objectively these Facebook posts and cartoons were innocuous.

[187] No consideration was given to the fact Mr Tiller had been employed for nearly eight years and that he had an unblemished employment record with RAWA.

[188] Accepting that Mr Tiller had personal views and beliefs inconsistent with RAWA policy, Ms Reilly and Ms Visser refused during the meeting to engage with the important point Mr Tiller raised that there was no evidence that this had negatively affected how he had performed his duties.

[189] Regrettably RAWA's approach to this meeting was highly prejudicial to Mr Tiller in all of these ways. Had Mr Tiller not resigned and had he been dismissed after only this meeting Mr Tiller would have been unfairly dismissed.

[190] I have decided as explained above that Mr Tiller was not dismissed and so an Order [PR700022] will be issued dismissing this application.

R Greig of Greigs Safety and Employment Lawyers for the Respondent.

[5] Respondent's documents at R4-8 and R4-9.

[14] Exhibit R2 at paragraphs 58 to 61.

[16] Exhibit R1 at paragraphs 86 and 102.

[29] Exhibit A1 at paragraphs 19 to 22.

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