FEDERAL COURT OF AUSTRALIA Laing O'Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323 Appeal from: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 File number: WAD 86 of 2024 Judgment of: SHARIFF J Date of judgment: 15 November 2024 INDUSTRIAL LAW – appeal from decision of Federal Circuit and Family Court of Australia (FCFCOA) in which primary judge found appellant liable for wrongful termination, adverse action contrary to s 340(1) of Fair Work Act 2009 (Cth) (FW Act) and a contravention of s 117(1) of FW Act – where appellant had summarily terminated employment of respondent for alleged serious misconduct arising from incident at after-hours gathering of work colleagues and subsequent investigation of incident – where primary judge found that appellant had not established serious misconduct on part of respondent – where primary judge found that respondent had exercised certain workplace rights and appellant failed to rebut presumption in s 361 of FW Act that appellant had terminated respondent's employment "because of" exercise of those rights – where primary judge found that appellant had contravened s 117(1) of FW Act by failing to give respondent notice of termination in authorised manner – consideration of principles of appellate review and remitter – whether primary judge erred in making various findings of fact, including that person identified by appellant as having made decision to dismiss respondent was not, in fact, person who made that decision; and that, where person who primary judge found had made decision to dismiss respondent was not called to give evidence, appellant had failed to rebut presumption in s 361 of FW Act – HELD: majority of alleged factual errors rejected; however, primary judge erred in specified respects; questions as to who was materially involved in decision to terminate respondent's employment and whether presumption in s 361 of FW Act rebutted to be remitted to different judge of FCFCOA – whether primary judge erred in deciding that respondent had not engaged in serious misconduct warranting summary dismissal – HELD: primary judge did not so err – whether primary judge erred in deciding that appellant took adverse action against respondent because it failed to call as witness person who primary judge determined had made decision to dismiss respondent – HELD: this question to be dealt with on remitter – whether primary judge erred in finding that appellant had contravened s 117(1) in way notice of termination was given to respondent – HELD: primary judge did not err in way contended for by appellant, but serious doubt expressed about correctness of finding of contravention for other reasons not advanced in appeal – whether primary judge denied appellant procedural fairness in proceedings below, including by reason of delay between proceedings and delivery of primary judgment – HELD: no denial of procedural fairness Catchwords: PRACTICE AND PROCEDURE – where outcome of appeal in large measure turned on forensic choices made by appellant in way it conducted proceedings below and on appeal – where no witnesses of fact to incident called other than respondent – where witness accounts and investigation report concerning incident tendered for non-hearsay purpose and relied upon for both hearsay and non-hearsay purposes – where appellant primarily relied on audio recording of part of incident – where appellant failed to engage with other substantial evidence in witness accounts which shed light on context in which incident occurred – where appellant alleged that respondent had engaged in conduct that was deliberately dishonest – where appellant failed to make out its case as to serious misconduct as pleaded and run in proceedings below PRACTICE AND PROCEDURE – application of Practice Note APP 2: Content of Appeal Books and Preparation for Hearing – expectations of parties in relation to compilation of Appeal Books Acts Interpretation Act 1901 (Cth) ss 28A, 28A(1), 29 Fair Work Act 2009 (Cth) ss 12, 44, 61, 117(1), 123(1)(b), 340(1), 340(1)(a), 340(1)(a)(ii), 341(1), 341(1)(c)(ii), 342(1), 360, 361, 361(1), 539 Legislation: Fair Work Regulations 2009 (Cth) regs 1.07, 1.07(1)(2)(b)(ii) Federal Court Rules 2011 (Cth) Div 36.5, rr 36.54, 36.54(c) Residential Tenancies Act 2010 (NSW) Adami v Maison de Luxe Ltd (1924) 35 CLR 143 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464 Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29 Civil Aviation Safety Authority v Boatman [2006] FCA 460 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 Community and Public Sector Union v Telstra Corp Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324 Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Crowley v Worley Ltd (No 2) [2023] FCA 1613 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421 Daynes v I-MED Central Queensland Pty Ltd [2024] NSWSC 1064 Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 Eldridge v Wagga Wagga City Council [2021] NSWSC 312 Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Frigger v Trenfield (No 3) [2023] FCAFC 49 Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179 Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; (2022) 403 ALR 498 Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 Cases cited: Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 Microsoft Corp v CPL Notting Hill Pty Ltd [2024] FCAFC 20; (2024) 177 IPR 389 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729 National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159; (2021) 392 ALR 252 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120 North v Television Corporation Ltd (1976) 11 ALR 599 Pilbrow v University of Melbourne [2024] FCA 1140 Pryde v Coles Myer Limited t/as K-Mart Auto (1990) 33 IR 469 Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 172 CAR 1073 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 Wong v National Australia Bank Ltd [2021] FCA 671 Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 Wood v City of Melbourne Corporation [1979] FCA 42; (1979) 26 ALR 430 Zong v Lin [2022] NSWCA 136 Eastwood A, "Corporations and the Aggregation of Knowledge" (2013) 87 ALJ 553 Reynolds D, "Corporate Knowledge: The Search for the Relevant Mind(s)" (2018) 92 ALJ 991 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 624 Date of hearing: 2, 3, 11 September 2024 Counsel for the Appellant: Mr G Hatcher SC and Mr K Brotherson Solicitor for the Appellant: Ferrous Advisory Counsel for the Respondent: Mr O Fagir Solicitor for the Respondent: Gadens ORDERS WAD 86 of 2024 BETWEEN: LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD Appellant AND: THOMAS HALEY Respondent order made by: SHARIFF J DATE OF ORDER: 15 November 2024 THE COURT ORDERS THAT: 1. Declaration 2 made by the primary judge on 28 March 2024 be set aside. 2. The proceedings be remitted to a judge of the Federal Circuit and Family Court of Australia other than the primary judge for determination in accordance with these reasons and in particular those set out at [277]-[454]. 3. The appeal be otherwise dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SHARIFF J: A. INTRODUCTION [1] B. A SUMMARY OF THE RELEVANT EVENTS AND THE LITANY OF FORENSIC CHOICES MADE BY LOR [16] B.1 The Incident – a summary [17] B.2 LOR's pleaded case and submissions below [31] B.3 LOR's forensic choices [38] C. AMENDED NOTICE OF APPEAL [56] C.1 Challenges to findings of fact [58] C.2 Challenge to conclusion of serious misconduct [59] C.3 Challenges to findings of law [60] C.4 Procedural fairness grounds [62] D. PRINCIPLES OF APPELLATE REVIEW [63] E. THE EVIDENCE BEFORE THE PRIMARY JUDGE AND UNCHALLENGED FINDINGS [68] E.1 Employment Contract and Position Description [69] E.2 Code of Conduct and Travel Policy [73] E.3 The Incident [76] E.4 Complaints received from the Pointons [77] E.5 Mr Haley is suspended and an investigation is commenced [82] E.6 First set of interviews conducted on 6 July 2020 [91] E.6.1 Mr Field's account [92] E.6.2 Mr Shaun Boyle's account [93] E.6.3 Mr Grierson's account [94] E.6.4 Interview with Ms Pointon [96] E.7 The primary judge's assessment of the evidence gathered to this point by LOR [98] E.8 The Audio Recording is sent to LOR [100] E.9 Further interviews on 6 July 2020 [109] E.9.1 Mr Byrne's account [111] E.10 Letter to Mr Haley setting out allegations on 6 July 2020 [113] E.11 Interviews on 8 July 2020 [119] E.11.1 Mr Shane Neely's account [120] E.11.2 Interview with Mr Haley on 8 July 2020 [121] E.11.3 Mr Adam Neely's account [129] E.12 Telephone discussion with the Pointons on 9 July 2020 [130] E.13 Letter to Mr Haley dated 9 July 2020 [131] E.14 Second interview with Mr Byrne on 13 July 2020 [134] E.15 Second interview with Mr Grierson on 14 July 2020 [137] E.16 First conversation between Mr Haley and Mr McDevitt [140] E.17 Mr Haley's letter dated 14 July 2020 responding to the 9 July Letter [143] E.18 Ms Haley complains on Mr Haley's behalf about the investigation [147] E.19 Finalisation of the investigation [154] E.20 Second conversation between Mr Haley and Mr McDevitt on 18 July 2020 [159] E.21 Reflection Email [161] E.22 Drafting of the Show Cause Letter [163] E.23 Final Show Cause Letter sent to Mr Chatwin [170] E.24 Show Cause Meeting on 22 July 2020 [174] E.25 Lead up to the Termination Letter [179] E.26 Mr Chatwin's consideration as to termination [188] F. ERRORS OF FACT ALLEGED BY LOR [194] F.1 First Alleged Factual Error: the owners of the Pambula Property did not hear or notice the Offensive Words [194] F.2 Second Alleged Factual Error: the owners of the property had no right to demand that the tenants leave the property [207] F.3 Third Alleged Factual Error: Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words [219] F.4 Fourth Alleged Factual Error: to the extent Mr Haley made statements in the Reflection Email with which he did not agree, he was unfairly induced to do so [228] F.5 Fifth Alleged Factual Error: Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words [246] F.6 Sixth Alleged Factual Error: there was no genuine investigation of the complaints against Mr Haley [252] F.7 Seventh and Eighth Alleged Factual Errors: Mr Chatwin did not make the decision to dismiss Mr Haley, and by failing to call the person who did make that decision, LOR failed to rebut the statutory presumption in s 361 of the FW Act [277] F.7.1 Relevance of the findings as to whether Mr Chatwin was the decision-maker [283] F.7.2 The evidence called by LOR [298] F.7.3 The primary judge's findings [304] F.7.4 Consideration [316] (a) Error in reasoning and finding that the decision to terminate was not Mr Chatwin's to make as the power to do so rested in the hands of Mr O'Rourke and that Mr O'Rourke made the decision [316] (b) Further errors in finding that Mr Chatwin was not the decision-maker or was not the only decision-maker [365] (c) An erroneous approach to the discharge of the statutory presumption in s 361 of the FW Act [426] (d) Did LOR discharge its onus on the evidence before the primary judge? [441] F.8 Ninth Alleged Factual Error: dishonesty was not alleged in LOR's response [455] G. THE SUMMARY DISMISSAL GROUND [458] G.1 Relevant principles [462] G.2 Consideration [471] G.2.1 The First Serious Misconduct Contention [473] G.2.2 The Second Serious Misconduct Contention [541] G.2.3 The Third Serious Misconduct Contention [560] G.2.4 Conclusion on the Summary Dismissal Ground [585] H. ALLEGED ERRORS OF LAW [587] H.1 The Adverse Action Ground [587] H.2 The Section 117 Ground [588] I. PROCEDURAL FAIRNESS GROUNDS [607] I.1 The Delay Ground [607] I.2 The Browne v Dunn Ground [614] I.3 The Absence of Evidence Ground [622] J. DISPOSITION OF THE APPEAL [624] SCHEDULE: GLOSSARY OF RELEVANT PERSONS AND ORGANISATIONS A. INTRODUCTION 1 This is an appeal from the judgment, declarations and orders of the Federal Circuit and Family Court of Australia (FCFCOA) in Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 (primary judgment or PJ). The event at the centre of the proceedings below, and the central subject matter of the primary judgment, was a so-called Incident that occurred some four years ago, late in the evening of 2 July 2020 and the early hours of the following morning, during a gathering at a property located in Pambula (the Pambula Property) on the South Coast of New South Wales. It was an after-hours gathering of work colleagues who were celebrating a milestone achieved on a work project. 2 As a result of matters that were said to have occurred during the Incident and in its subsequent investigation, the appellant (LOR) summarily terminated the employment of the respondent (Mr Haley) on the ground that he had engaged in serious misconduct. Mr Haley commenced proceedings in the Court below, essentially propounding three causes of action relevant to the present appeal which were in substance that: (a) his employment had been wrongfully terminated because he did not engage in misconduct warranting summary termination and was thereby entitled to damages; (b) his dismissal from employment was adverse action engaged in because he had exercised one or more workplace rights and therefore contrary to s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act); and (c) LOR contravened s 117(1) of the FW Act by failing to give him notice of the termination of his employment in the manner prescribed by that subsection. 3 The primary judge determined questions as to liability separately to the determination of damages, compensation and penalty (if any). In substance, the primary judge found that LOR had not discharged its onus of establishing serious misconduct, and that the summary termination of Mr Haley's employment was therefore a repudiation of the employment contract. Further, the primary judge found that Mr Haley had established that he had exercised workplace rights in some respects and that, in relation to the termination decision, LOR had not rebutted the presumption arising by operation of s 361 of the FW Act that that decision had been taken "because of" the exercise of those rights. The primary judge also found that LOR had contravened s 117(1) of the FW Act by failing to give Mr Haley notice of the termination of his employment in the (apparent) manner prescribed by that subsection. 4 LOR appeals from a number of factual and legal findings made by the primary judge and his Honour's ultimate conclusions as to liability. The primary judge has since made a determination as to the assessment of damages and compensation, which is now the subject of a separate appeal instituted by LOR: see Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 (Compensation Judgment). The penalty phase of the proceedings below has been stayed pending the outcome of this appeal. 5 The primary judgment is lengthy. It considers in detail a vast number of documentary materials, as well as the oral evidence given at trial, resulting in a judgment of 675 paragraphs and over 300 pages in length. Given the grounds of appeal that were advanced by LOR, the hearing and determination of this appeal has involved an extensive review of the evidence in the proceedings below. Regrettably, this has meant that this judgment is also a lengthy one. 6 For the reasons set out below, I have rejected the majority of the grounds of appeal advanced by LOR. 7 Much of LOR's case below as to Mr Haley's alleged misconduct rested upon the allegation that during the course of the Incident he had said and directed to the owners of the Pambula Property, Mr and Ms Pointon (the Pointons), the words, "go home you fucking silly old cunt… Go home old man, old lady. Go home, go home, go home, go home": PJ [142]. LOR ran its case below on the basis that it was the totality of these words which were the "Offensive Words". The primary judge found, and LOR does not dispute, that the case was never put on the basis that Mr Haley's conduct in saying the words "Go home old man, old lady. Go home, go home, go home, go home" were sufficient to establish misconduct. LOR's case in this regard required it to establish that Mr Haley had said the particularly vulgar and profane words "go home you fucking silly old cunt" to and directed them towards the Pointons. 8 The outcome of this appeal does not turn on whether the words "Go home you fucking silly old cunt" were offensive. Rather, in large measure, the outcome of this appeal turns upon whether error has been established based on a real review of the evidence. That evidence needs to be considered in the context of: (a) the specific case advanced by LOR; and (b) the deliberate forensic choices made by LOR in the way it conducted that case. 9 LOR called no evidence from any witness as to the facts of the Incident, including the Pointons. The only testimony given before the primary judge as to the facts of the Incident was that given by Mr Haley. Instead of calling any witnesses of fact as to the Incident, LOR tendered into evidence the accounts given by witnesses during LOR's internal investigation into the Incident, together with the final Investigation Report. This evidence consisted of the accounts given by other employees of LOR who were present during the Incident (the Witness Accounts) and the accounts given by the Pointons (the Pointons' Accounts). These documents were admitted into evidence for a non-hearsay purpose, over Mr Haley's objection (who was self-represented in the proceedings below). Thereafter, both Mr Haley and LOR relied upon those documents for hearsay purposes and the primary judge did likewise in the primary judgment: see PJ [10]. The primary judge found that LOR did not submit that the Witness Accounts should be accorded little or no weight, and made no submission about what credit should be accorded to those statements. It followed that the Witness Accounts were relied upon in the proceedings below as truthful accounts by both LOR and Mr Haley. LOR did not challenge these findings. 10 LOR principally relied upon an Audio Recording that Ms Pointon had taken during one part of the Incident which recorded Mr Haley saying (but not in immediate sequence) the Offensive Words. The Audio Recording was taken without the consent of any person who was present and did not purport to record the entirety of the Incident. LOR did not challenge the primary judge's finding that the particularly profane words "go home you fucking silly old cunt" are only audible on the Audio Recording with concentrated effort. My own assessment accords with the primary judge's finding and I would add that those words are barely audible without intentionally seeking to hear them out. LOR challenges the findings made by the primary judge that these words were not said or directed to the Pointons. However, LOR did not gainsay that not one of the Witness Accounts reported that Mr Haley had said these words, let alone that he had said them to or towards the Pointons. Nor did it gainsay that the Pointons did not say so in their accounts. More tellingly, during its investigation, LOR never asked a single witness, let alone the Pointons, whether they heard these words, and, if so, whether they were said or directed towards the Pointons. Yet, in the appeal, LOR invited me to make findings to the contrary by drawing inferences from the Audio Recording. 11 LOR did not engage with the sequence of events that occurred during the Incident that led up to the point at which the Offensive Words were spoken. In particular, LOR paid little regard to the fact that the Pointons had entered the Pambula Property unannounced well after midnight at a time when the occupants were seemingly intoxicated, made a line towards one of the occupants and wrested away a television remote from him, and came into physical contact with at least one of the occupants. Nor did LOR engage with the fact that on the Witness Accounts (that LOR itself tendered) Mr Pointon was yelling to and at all those present to "fucking get out" and when told that he could not do that, Mr Pointon's riposte was to say "I can do whatever the fuck I want". There followed a commotion with various expletives being exchanged by all those who were present. The primary judge set out at PJ [205]-[209] the serious deficiencies in LOR's submission as to what occurred during the Incident, which failed to engage with the other substantial evidence contained in the Witness Accounts. Importantly, this led the primary judge to reject the notion that what LOR submitted occurred at the Incident "[went] anywhere near to fairly representing the evidence about what occurred during the Incident, or Mr Haley's conduct in the course of that Incident": PJ [209]. LOR did not challenge these findings. 12 The one substantive area in respect of which LOR's appeal has succeeded relates to the primary judge's findings in relation to Mr Haley's adverse action case, and, in particular, the primary judge's finding that Mr Simon Chatwin, a Commercial Director of LOR, was not the person who made the decision to terminate Mr Haley's employment, or did not make that decision alone. For the reasons that follow, I have concluded that the primary judge erred in reasoning to this conclusion and, regrettably, the question as to whether Mr Chatwin was the sole decision-maker has to be remitted to a different judge. 13 Another point needs to be made at the outset. It is most regrettable that, both in the proceedings below, and on appeal, findings and conclusions have been made about the conduct of the Pointons and others involved in the Incident, without any of them having been called to give evidence. That is a direct consequence of the manner in which LOR elected to conduct the proceedings. 14 In order to best deal with the issues raised and explain my reasons for making the orders that I have made, these reasons are organised as follows: (a) First, I provide a high-level summary of the relevant events and of certain forensic choices made by the parties below and in the appeal (Section B); (b) Second, I set out the grounds advanced by LOR in its Amended Notice of Appeal (Section C); (c) Third, I explain the principles of appellate review relevant to the determination of the appeal by this Court (Section D); (d) Fourth, I set out (in some detail) the relevant evidence before the primary judge and the unchallenged findings of fact made by his Honour (Section E); (e) Fifth, I turn to the various errors of fact alleged by LOR (Section F); (f) Sixth, I turn to LOR's claim that the primary judge erred in finding that Mr Haley had not engaged in misconduct warranting summary dismissal and that LOR had thereby repudiated his contract of employment (Section G); (g) Seventh, I address the errors of law alleged by LOR, namely that the primary judge erred in finding that: (i) LOR had engaged in adverse action as a result of failing to call as a witness the person who the primary judge determined had made the decision to terminate Mr Haley's employment (Section H.1); and (ii) LOR had breached s 117(1) of the FW Act in the way notice of termination had been given to Mr Haley (Section H.2); (h) Eighth, I address LOR's contentions that it was denied procedural fairness, including as a result of delay between the hearing of the proceedings below and the delivery of the primary judgment and for other reasons (Section I); (i) Finally, I conclude and dispose of the appeal (Section J). 15 For convenience, a glossary of relevant persons and organisations referred to throughout the judgment is attached as a Schedule to these reasons. B. A SUMMARY OF THE RELEVANT EVENTS AND THE LITANY OF FORENSIC CHOICES MADE BY LOR 16 Given the length of the judgment below, and these reasons, it is convenient to provide a summary of the relevant events and, as part of that summary, identify the forensic choices that were made in the proceedings below and in this appeal. B.1 The Incident – a summary 17 In January 2020, LOR had been engaged to undertake recovery works following the bushfires that had devastated the South Coast region in the Australian summer of 2019/2020 (Bushfire Project). In order to aid these efforts, LOR's employees had come to occupy various premises on the South Coast on a temporary basis so that they could manage and perform the works that were being undertaken. The Pambula Property was one such premises and the booking for it had been arranged through the website "stayz.com.au" by Central Travel Team (CTM), LOR's external travel provider. 18 As at 2 July 2020, the Pambula Property was, and was to be, occupied by five employees of LOR (Mr Andrew Byrne, Mr Shane Neely, Mr Adam Neely, Mr Shaun Boyle and Mr Jamie Boyle), who were referred to as the Pambula Property Residents, but the precise legal arrangement governing their occupation (lease, licence and whether it was LOR or the Pambula Property Residents that were the parties to that arrangement) was less than clear on the evidence adduced at trial. Neither party adduced evidence as to the terms upon which the Pambula Property came to be occupied by the Pambula Property Residents. As noted above, the owners of the Pambula Property were the Pointons. For reasons unknown, the Pointons were referred to in the proceedings below as "Mr P" and "Ms P" and they are referred to in this way in relevant extracts from the primary judgment, but I will otherwise refer to them as the Pointons, or Mr and Ms Pointon as the context permits. 19 In order to celebrate a "commercial milestone" on the Bushfire Project, the Pambula Property Residents had arranged for a gathering to occur at the Pambula Property on 2 July 2020 involving a barbecue (BBQ) and the consumption of drinks including alcohol. There was evidence before the primary judge that such gatherings had been organised and occurred previously at other locations including at another house in Batemans Bay on the South Coast of New South Wales. LOR did not contest this evidence. 20 There was evidence before the primary judge that the Pambula Property Residents had informed Ms Pointon that such a gathering would be organised. One of the Residents, Mr Byrne, told LOR that he had made Ms Pointon aware that a BBQ with work colleagues would be held at some point during the stay, and Ms Pointon had said that the gathering could go ahead and they could make "as much noise as [they] wanted" so long as the gathering was kept inside and out the front but not on the back balcony of the Pambula Property: PJ [128]. This was corroborated by other accounts: PJ [117]-[118]. LOR did not contest this evidence and I will return to the significance of this later in these reasons. 21 Among those invited to the gathering, and who attended, was Mr Haley. It was common ground that Mr Haley was the most senior employee of LOR who attended the gathering. 22 It was common ground that Mr Pointon's elderly mother resided in a separate part of the Pambula Property. However, it was also not challenged that, while this fact was known to the Pambula Property Residents, it was not known to the other persons who attended the gathering at the Pambula Property, including Mr Haley, until much later in the evening of 2 July 2020 or in the early hours of the following morning. 23 The social gathering was uneventful until much later in the evening of 2 July 2020. Mr Pointon received a call from his elderly mother complaining about the noise from the gathering. This initially led to Mr Pointon attending the Property and asking Mr Byrne to bring an end to the gathering, and later Ms Pointon also calling Mr Byrne and making the same request. The Pointons later attended the Pambula Property. By this time, it was well after midnight. There followed the events which came to be described as the Incident. The precise sequence of events, including what was said and by whom, were all apparently in dispute. However, the apparent dispute about the facts and circumstances relating to the Incident was, and is, a curiosity in circumstances where, as I have already observed, LOR called no evidence in the proceedings below from any witnesses of fact to the Incident. Despite LOR's position, there were significant aspects of the facts of the Incident that were in dispute. Precisely how these factual disputes were to be resolved was left unexplained and undeveloped by LOR both in the proceedings below and on appeal. 24 The following day, 3 July 2020, senior employees of LOR received notice (on a second hand basis) of a complaint made by the Pointons about the Incident including in relation to the conduct of Mr Haley. Thereafter, LOR made a decision to suspend Mr Haley and others from their employment and conducted an investigation. As part of that investigation, LOR obtained accounts from Mr and Ms Pointon, being the Pointons' Accounts, and Mr Haley, as well as the Witness Accounts. On the whole, the evidence (which is set out below) that LOR obtained from others who attended the gathering pointed towards the Pointons having been the initiators and, at least the initial, aggressors of the Incident. Despite the tenor of that evidence (which LOR had available to it), LOR not only did not call that evidence, it did not call evidence from the Pointons to seek to contradict it. LOR apparently did so on the basis that those involved in the investigation into the Incident had formed the view that the relevant witnesses may have spoken with each other. Other than an oblique suggestion to that effect contained in the Investigation Report prepared by LOR, there was no evidence before the primary judge as to any question of collusion amongst the witnesses and, as such, no finding was made to that effect. Accordingly, it is not a basis upon which the present appeal could be determined. 25 The Pointons later supplied to LOR the Audio Recording and a separate video recording capturing parts of the events of the Incident. The Audio Recording records Mr Haley uttering the words "go home you fucking silly old cunt" and also later on the words "Go home old man, old lady. Go home, go home, go home, go home": PJ [142]. LOR defined the whole of these words as the Offensive Words: PJ [142]. The primary judge did not accept that LOR's definition of the Offensive Words reflected the true sequence of events. The primary judge observed that it was not part of LOR's case that the words "Go home old man, old lady. Go home, go home, go home, go home" were of themselves offensive and that these words were not relied upon by LOR to summarily terminate Mr Haley's employment. Rather, LOR's case was that it was the whole of the words that constituted the conduct in respect of which Mr Haley's employment was terminated. In particular, it was critical to LOR's case that Mr Haley had said the words "go home you fucking silly old cunt" to and towards the Pointons. On appeal, LOR did not cavil with this characterisation of its case. 26 Thus, a critical factual integer of LOR's case below and on appeal was that Mr Haley had said the words "go home you fucking silly old cunt" to and directed them towards the Pointons. It was submitted that this conduct in all the circumstances was offensive and unbefitting of a person occupying Mr Haley's position, especially given that his conduct occurred in the presence of subordinate employees. 27 The Audio Recording was seized upon by those conducting the investigation as demonstrating misconduct on the part of Mr Haley. The primary judge found that Mr Haley had uttered the Offensive Words, but also in substance found that the particularly offensive words, "go home you fucking silly old cunt", could only be faintly heard on the Audio Recording due to foreground and other noise. As explained later in these reasons, these findings are not challenged and accord with my own assessment of the evidence. Further, as explained below, the acontextual and microscopic examination of the Offensive Words as recorded on the Audio Recording, detached from what else occurred and was occurring up until this point in time of the Incident and thereafter gives the Offensive Words a prominence that no one present at the time or at any time thereafter gave them (other than those involved in its granular assessment in the aftermath of the Incident). The fact is that no evidence was led from the Pointons or anyone else present that they heard the Offensive Words, or heard them being directed towards the Pointons. Nor did the Pointons complain to LOR that they heard the Offensive Words. And, no one as part of LOR's investigation team explored this fact, which became the centrepiece of LOR's case, in the communications, interviews and discussions that were had with the Pointons and the other witnesses during the investigation. 28 LOR's position in the appeal was that it did not matter that the Pointons did not hear the words, "go home you fucking silly old cunt", or did not complain about them because: (a) Mr Haley had put himself in a position where he had uttered those words including in the company of subordinate staff and members of the public (even if they did not hear those words being uttered); (b) there was a risk that the Pointons would hear those words if and when they played the Audio Recording and that the Audio Recording could be widely distributed; (c) Mr Haley had not sought to de-escalate the Incident; and (d) Mr Haley had intentionally lied during the course of the investigation by not admitting that he had said the Offensive Words. These are all matters that I deal with below. 29 After the preparation of several drafts, a final Investigation Report was completed and submitted to Mr Haley's manager, Mr Chatwin. The report concluded that the complaint made against Mr Haley was substantiated. This then led to a "show cause" process including the holding of a meeting with Mr Haley on 22 July 2020 (Show Cause Meeting). There was no evidence led from the author(s) of the Investigation Report or those who conducted the investigation, or who participated in the show cause process, including in the steps leading up to and including Mr Haley's employment being terminated, other than from Mr Chatwin. The absence of such evidence took on significance as part of Mr Haley's adverse action case, with the primary judge ultimately finding that Mr Chatwin was not the decision-maker or not the only decision-maker. 30 On 24 July 2020, LOR terminated Mr Haley's employment on the basis that he had engaged in serious misconduct, both during the Incident and in the course of the subsequent investigation. The termination letter dated 24 July 2020 (Termination Letter) identified the following three grounds as the basis for termination: 1. Lying to the investigator charged by Laing O'Rourke to undertake an investigation into the matter; 2. Serious breaches of company policies, including the Code of Conduct; 3. Engaging in conduct that caused imminent and serious risk to the reputation of Laing O'Rourke. B.2 LOR's pleaded case and submissions below 31 Mr Haley commenced proceedings on 26 October 2020 in the Court below, alleging (amongst other things) wrongful termination and adverse action in relation to the decision to terminate his employment. In those proceedings, LOR defended the claim as to wrongful termination on the basis of the three grounds identified above. Its pleaded position was as follows: (a) First, LOR pleaded that the investigator appointed by LOR to investigate the allegations made against Mr Haley found that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Pointons during the Incident, and that Mr Haley had breached section 1 of LOR's Code of Conduct and section 3 of its Travel Policy; (b) Second, LOR referred to the following statements from Mr Haley's statement dated 8 July 2020 (what I later refer to as the 8 July Haley Statement): (i) that he "didn't feel it was necessary to go outside" and had "remained inside and was at least 15-20 yards from [Mr Pointon] with the bi-fold doors also providing a physical barrier"; (ii) that he "continued to remain inside the property until the police arrived"; (iii) that he was "unsure what was said and what happened due to being inside"; (iv) that he "contributed to the commotion by saying things like you are out of order and you need to leave"; (v) that he believed that he and other attendees at the party "were in danger" of being "attacked" by Mr Pointon; (vi) that Mr Pointon "represent[ed] a risk and a danger to the safety and welfare of the residents" and that Mr Pointon had "caused [Mr Haley] physical harm"; and (vii) that the allegations made by Mr and Ms Pointon regarding Mr Haley's conduct and the "grounds for [Mr Haley's] suspension" were "untrue"; (c) Third, LOR referred to a phone interview with Mr Haley on 8 July 2020 by the investigator in which Mr Haley was asked whether, at any point during the Incident he had "address[ed] the owners", and that Mr Haley had replied "[t]hat's covered in my statement"; (d) Fourth, LOR stated that on 9 July 2020, the investigator had written to Mr Haley inviting him to explain and/or clarify "inconsistencies" between his written statement and information that had been provided by the Pointons and "other persons who attended the party", which included a sound recording of Mr Haley saying the Offensive Words; and that in response to that letter (in a document which I later refer to as the Response to the 9 July Letter), Mr Haley: (i) stated that he had been "subjected to a physical assault by Mr Pointon", in relation to which Mr Pointon was "seeking to avoid criminal charges"; (ii) described the person who could be heard in the sound recording saying the Offensive Words as "the individual", without admitting that it was him; (iii) stated that he had "no change to make" to his written statement regarding whether he said the Offensive Words; (iv) stated that Mr and Ms Pointon had made "false and malicious allegations" against him; and (v) stated that he "continue[d] to completely refute the allegations"; (e) Fifth, LOR stated that, in the course of the Show Cause Meeting on 22 July 2020, Mr Haley: (i) admitted that he had used offensive language toward Mr and Ms Pointon during the Incident by saying to them the Offensive Words; (ii) stated that he had not been subjected to a physical attack by Mr Pointon; and (iii) stated that he did not consider Mr Pointon's conduct during the Incident to be sufficiently serious to warrant criminal charges or reporting the matter to LOR; (f) Finally, LOR pleaded that: (i) by reason of the statements made in the Show Cause Meeting (set out above at [31](e)), the statements in the 8 July Haley Statement (set out above at [31](b)), during the phone interview on 8 July 2020 (set out above at [31](c)) and in the Response to the 9 July Letter (set out above at [31](d)), were false; and that Mr Haley knew that those statements were false at the time he made them; and (ii) Mr Haley was interviewed by the investigator on 3, 4 and 8 July 2020 and was "provided with numerous opportunities to respond to the allegations and findings made against him" including at the Show Cause Meeting. 32 In summary, then, LOR's pleaded position in relation to the termination of Mr Haley's employment was that it was justified because he had lied to the investigator (in the sense that there were said to be inconsistencies between his earlier statements and later statements, and that the earlier statements were known to be false at the time he made them); and that he engaged in wilful or deliberate behaviour that was inconsistent with the continuation of his employment and which caused imminent and serious risk to the reputation of LOR (in the sense that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards Mr and Ms Pointon during the incident; and had breached section 1 of the Code of Conduct and section 3 of the Travel Policy). 33 In its closing submissions in the Court below, LOR contended that the termination of Mr Haley's employment on the ground of serious misconduct was warranted on "one or more of the following grounds". 34 First, LOR contended that, by his conduct in becoming intoxicated and saying the Offensive Words to Mr and Ms Pointon, Mr Haley committed "misconduct" within the meaning of cl 2 in section 4 of his employment contract. It contended that the language was obscene, highly offensive and directed to two members of the public whose property was being rented by LOR and used by its employees in connection with their work on the Bushfire Project, and that his conduct was "entirely unbefitting of someone who was employed in a senior management role" at LOR. 35 Second, LOR contended that Mr Haley's conduct also fell within the specific category of conduct that caused imminent and serious risk to LOR's reputation within the meaning of cl 2(b) in section 4 of the employment contract, because: (a) Mr and Ms Pointon knew that the persons staying at the Pambula Property were employed by, or affiliated with, LOR, such that Mr Haley's conduct was capable of reflecting poorly upon his employer in the eyes of the Pointons; (b) proof of actual damage to LOR's reputation was not required; rather, an "imminent and serious risk" to the company's reputation was sufficient to warrant summary dismissal. It was submitted that Mr Haley's behaviour gave rise to an imminent and serious risk to LOR's reputation in the eyes of Mr and Mrs Pointon and the other attendees at the party (including external contractors), including because the police were called to the property, and that it did not matter whether the conduct was witnessed by a larger audience or published to the world at large; and (c) this was especially so in light of the "commercial sensitivity" of the Bushfire Project and the "amount of publicity in the media regarding LOR's role as the lead contractor in that project". In this regard, LOR extracted a passage of cross-examination from Mr Chatwin where he stated (amongst other things): … So having a party, swearing at people, making allegations, changing those allegations, there's a high chance that Mr and Mrs Pointon will go and tell their friends and people. It will become public knowledge what happened. Someone will have a link to the story. Someone will make it into, you know, a big issue in the press and then suddenly all those fears that we have come true and materialise because of one crazy – you know, one crazy night and event… (Emphasis added). 36 Third, LOR contended that Mr Haley had engaged in "wilful or deliberate behaviour that was inconsistent with the continuation of his employment" for the purposes of cl 2(1) of his employment contract, because he had made certain "non-disclosures and statements during the investigation that he knew to be incorrect". In this regard, LOR relied upon the same apparent "inconsistencies" which it had pleaded in response to Mr Haley's claim (and which are set out in the summary of LOR's pleaded case at [31]-[32] above). As I will return to below, LOR's case as it was put was that Mr Haley had knowingly made false statements and had been dishonest. As I will also later explain, the case put on appeal was said to one based on "deliberate lies" made by Mr Haley. 37 As noted above, the primary judge upheld the majority of Mr Haley's claims. In coming to these conclusions, the primary judge largely but not exclusively accepted the evidence of Mr Haley, and although not rejecting outright the credit of Mr Chatwin, who LOR claimed was the decision-maker for the purposes of the decision to terminate Mr Haley's employment, did not accept Mr Chatwin's evidence in various respects. B.3 LOR's forensic choices 38 It will be apparent from the above that the parties, but especially LOR, made a number of forensic choices in the conduct of the proceedings below, and in the appeal. 39 First, there were only two witnesses called to give evidence, and who were cross-examined. These were Mr Haley in his own case and Mr Chatwin in LOR's case. 40 Second, despite accepting in the proceedings below that it bore the onus of establishing that Mr Haley had engaged in serious misconduct, LOR made the forensic choice not to call the Pointons, or any other eyewitnesses of fact to the Incident. 41 Third, in the proceedings below, LOR sought to tender the final Investigation Report which included schedules containing the Pointons' Accounts and the Witness Accounts: PJ [9]. Despite the matters I have already set out above at [9], and there being no grounds of appeal in this regard, LOR contended in the appeal that I should disregard the Witness Accounts and give them no weight. In the following exchange, Senior Counsel for LOR stated as follows (at T26.5-42): HIS HONOUR: Okay. So your submission is I should have no regard to any of the records of interview? COUNSEL: Yes, your Honour. For this purpose. HIS HONOUR: Including the complaints from [the Pointons]? COUNSEL: Yes, your Honour. It's not direct evidence. It's not been challenged in Court. It's admitted under the business records as the investigation report, which is part of the business records. That doesn't make it credible. It just makes it part of the evidence supportive of the case. 42 Counsel for Mr Haley made the contrary contention that I should have regard to the Witness Accounts as these were part of the evidence below and this was not challenged (at T117.1-26): HIS HONOUR: And there's no appeal ground from them on this point. And there's no cross appeal or notice of contention from you on this point? COUNSEL: No, there's not. And we - - - HIS HONOUR: Sorry, it wouldn't be a cross appeal. It would be a notice of contention. COUNSEL: Yes. HIS HONOUR: So, the question I had for Mr Hatcher and the question I have for you, is when I conduct a real review of the evidence, you say given that neither party raises this point on appeal and it was admitted…a real review of the evidence includes a review of all the records of interview. COUNSEL: Well, the records of interview - - - HIS HONOUR: Are part of the evidence. COUNSEL: Yes. Yes. They are. HIS HONOUR: And so, I would not be in error in referring to them. COUNSEL: No. 43 In the absence of any ground of appeal or notice of contention challenging the course taken by the primary judge in having regard to the Investigation Report and records of interview for the truth of their contents, I have proceeded on the basis that the Pointons' Accounts and Witness Accounts formed part of the unchallenged evidence before the primary judge for both hearsay and non-hearsay purposes. 44 Fourth, both by reason of the Termination Letter and its pleaded case, as well as the submissions it made in the proceedings below, to the extent that LOR contended that Mr Haley had misled or lied to it during the course of the investigation, LOR put its case on the basis that Mr Haley had made statements that were knowingly false and, therefore, that he had engaged in conduct that was intentionally dishonest. This was confirmed in the following exchange with Senior Counsel for LOR (at T62.8-29): HIS HONOUR: I was going to raise that with you. In various parts of your written submissions, you say that [Mr Haley] has deliberately lied. That's a very serious allegation – very serious. It's not just that the evidence he gave is false or untrue, but you say he's deliberate. He was deliberate in lying in the show cause meeting. Is that your submission? COUNSEL: Not in the show cause meeting. I don't think that we said that, your Honour. But, certainly, we say he was deliberately - - - HIS HONOUR: The termination letter says that: You have been dishonest. COUNSEL: Yes. HIS HONOUR: Well, how do I take that? COUNSEL: Well, that - - - HIS HONOUR: Deliberate? COUNSEL: Deliberately dishonest, yes. (Emphasis added). 45 It follows that the way I was invited to consider LOR's case below was that it had advanced a case of deliberate dishonesty. 46 Fifth, in the lead-up to the proceedings below, Mr Haley sought to issue subpoenas seeking that various persons attend to give evidence on the basis that he contended that there were some 20 people involved in making the decision to terminate his employment. LOR objected to the subpoenas and they were successfully set aside. The primary judge gave reasons for refusing to grant the application: Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 (Subpoena Judgment). As explained below, LOR was on notice that the question as to whether Mr Chatwin had made the decision to terminate, or was the sole decision-maker in that regard, was likely to be a critical issue in the trial. Despite this, it elected to call evidence only from Mr Chatwin, and not anyone else. 47 Sixth, the appeal was conducted on particular challenges to findings of fact and conclusions and certain matters of law but in other respects there was no challenge to the findings made by the primary judge. As would be expected, I have only determined those matters which were sought to be challenged. 48 Seventh, in the ordinary course, this Court's Practice Note "APP 2: Content of Appeal Books and Preparation for Hearing" (Appeals Practice Note) limits the parties' submissions in chief to 10 pages. However, allowing for the fact that the primary judgment was lengthy and LOR sought to challenge various findings of fact, I made orders directing each party to file submissions of up to 25 pages. Paragraph 4.3 of the Appeals Practice Note provides as follows: 4.3 Where a party intends to challenge any of the primary Judge's findings of fact, the outline must: (a) identify the error (including any failure to make a finding of fact); (b) identify the finding that the party contends ought to have been made; (c) state concisely why, in the party's submission, the finding, or failure to make a finding, is erroneous; and (d) refer to the evidence to be relied upon in support of the argument. 49 Further, paragraph 3.1 of the Appeals Practice Note requires compliance with Division 36.5 of the Federal Court Rules 2011 (Cth) in relation to Appeal Books. Rule 36.54 sets out the requirement for the Appeal Book to comprise Part A, Part B and Part C. Relevantly, Part B contains a "Comprehensive Reference Index" comprising a complete index of the record of the evidence from the proceedings below. It is important to note that Part B is an index. It does not contain the universe of evidence from the proceedings below. Instead, r 36.54(c) of the Rules requires the parties to produce Part C, "being only the exhibits and evidence to which the parties refer in the parties' submissions, arranged in the same order as the Comprehensive Reference Index…". 50 The combined effect of paragraph 4.3 of the Appeals Practice Note and r 36.54 is that the party seeking to challenge findings of fact must identify with precision not only the alleged error of fact, but also provide references to the evidence in support of its contentions which are then to be included in Part C. 51 Despite these requirements being made clear, several parts of LOR's submissions referred to materials in Part B. These were references to an Index. The materials were not included in Part C. There was an assumption made that this Court on an appeal had access to the underlying evidence from the proceedings below as contained in the Part B Index. It does not necessitate saying this, but the assumption was fundamentally wrong. Nor does it necessitate stating that the only material to be included in Part C are those materials to which the parties have referred in their submissions. 52 Prior to the hearing of the appeal, Mr Haley tendered, in effect, an addendum to Part C which it was submitted consisted of evidence from the proceedings below that he wished to rely upon, but which LOR had not agreed to include in Part C. Following the conclusion of the appeal, I granted leave for LOR to supplement the Part C documents with its own bundle of additional documents. 53 The result is that I had no confidence by the conclusion of the appeal, and I had no confidence when writing this judgment, that the parties had provided to the Court all of the evidentiary material from the proceedings below upon which they relied in support of their respective contentions. Despite this, I was invited to conduct a real review of the evidence. It suffices to note that the position is highly unsatisfactory. 54 Finally, several parts of LOR's submissions contended that certain factual findings be "quashed". It goes without saying that this Court does not quash factual findings; it corrects legal and factual error. If persuaded that those factual and legal errors affect or alter the ultimate findings and orders made as to liability as reflected in the orders and declarations made by the Court below, the Court may set aside those orders and declarations. 55 At times, LOR's appeal was conducted on the basis that the finding of a single factual error in the primary judge's reasons would result in the opposite finding of fact being made, or that it was thereby a sufficient basis to set aside the primary judge's orders and declarations as to liability. Neither of these consequences necessarily flow from a finding of factual error. In at least one other respect, LOR submitted that its ground of appeal was "not relevant" to the disposition of the appeal (a point to which I will return below when discussing that relevant ground). C. AMENDED NOTICE OF APPEAL 56 In the proceedings below, Mr Haley was self-represented while LOR was represented by Counsel. There were significant disputes as to the facts and law which fortunately do not need to be rehearsed because all that needs to be determined are the grounds set out in the Amended Notice of Appeal. 57 Relevantly, by its Amended Notice of Appeal, LOR challenges findings of facts and law, and claims that it was denied procedural fairness, as follows. C.1 Challenges to findings of fact 58 LOR claims that the primary judge made a number of findings of fact which were contrary to the evidence, contrary to the weight of the evidence or involved the primary judge misdirecting himself as to relevant issues, including that: (a) the Pointons did not hear or notice the Offensive Words: PJ [216](c) (First Alleged Factual Error); (b) the Pointons had no right to demand that the tenants leave the property: PJ [538](c) (Second Alleged Factual Error); (c) Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words: PJ [215](m) (Third Alleged Factual Error); (d) to the extent Mr Haley made statements in an email (which I refer to below as the "Reflection Email") with which he did not agree, he was unfairly induced to do so: PJ [416] (Fourth Alleged Factual Error); (e) Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words: PJ [409] (Fifth Alleged Factual Error); (f) there was no genuine investigation by LOR of the complaints against Mr Haley: PJ [18] (Sixth Alleged Factual Error); (g) the person identified by LOR (Mr Chatwin) as having made the decision to dismiss Mr Haley was not, in fact, the person who made that decision: PJ [503] (Seventh Alleged Factual Error); (h) where the person who made the decision to dismiss Mr Haley was not called by LOR to give evidence in the proceedings, the rebuttable presumption presented in s 361 of the FW Act had not been met: PJ [616] (Eighth Alleged Factual Error); and (i) dishonesty was not alleged in LOR's amended response: PJ [549] (Ninth Alleged Factual Error). C.2 Challenge to conclusion of serious misconduct 59 LOR claims that the primary judge erred in deciding that Mr Haley had not engaged in serious misconduct sufficient to justify summary dismissal, and that therefore LOR had repudiated Mr Haley's contract of employment, by, among other things: (a) misapplying principle and acting contrary to authority; (b) not addressing the actual conduct of Mr Haley; (c) disregarding the reasons relied on by LOR for the decision to summarily dismiss Mr Haley; (d) failing to recognise the senior position of Mr Haley and the responsibilities and obligations attached to that; and (e) failing to take into account relevant evidence and taking into account irrelevant considerations, (the Summary Dismissal Ground). C.3 Challenges to findings of law 60 LOR claims that the primary judge erred and acted contrary to authority in deciding that by "purporting" to summarily dismiss Mr Haley from his employment on 24 July 2020, LOR took adverse action against Mr Haley in contravention of s 340(1) of the FW Act because it had failed to call as a witness the person who the primary judge determined was the decision-maker (the Adverse Action Ground). This ground concerns the same subject matter as Alleged Factual Error Seven and Alleged Factual Error Eight (set out above). 61 LOR also claims that the primary judge erred in finding that it had contravened s 117(1) of the FW Act in the way notice of termination of employment had been given to Mr Haley, because his Honour did not consider that Mr Haley had been guilty of serious misconduct and therefore the exception in s 123(1)(b) of the FW Act could not apply (the Section 117 Ground). C.4 Procedural fairness grounds 62 Finally, LOR claims that it was denied procedural fairness in the proceedings below on the following grounds: (a) by reason of the delay between the giving of evidence in the proceeding (19, 20, 21 and 23 September 2022), the making of closing submissions (28 November 2022) and delivery of the primary judgment (28 March 2024) (the Delay Ground); (b) by reason of the primary judge's decision to reject Mr Chatwin's evidence that he was the sole decision-maker in relation to the decision to terminate Mr Haley's employment, and to find that LOR's managing director, Mr Cathal O'Rourke (Mr O'Rourke), likely made the decision to terminate Mr Haley's employment, in circumstances where it was never put to Mr Chatwin in cross-examination that Mr O'Rourke was the sole decision-maker in relation to the decision to terminate Mr Haley's employment (the Browne v Dunn Ground); and (c) that the primary judge acted in the absence of evidence by finding that: (i) the owners of the Pambula Property were not entitled to enter the premises during the Incident; and (ii) the owners' unlawful entry onto the premises incited the Incident, in circumstances where: (iii) the only evidence which supported the findings referred to in (i) and (ii) above was that some of LOR's employees had apparently shouted at the owners that they were not entitled to be on the premises; (iv) the contract pursuant to which LOR's employees were occupying the Pambula Property was not in evidence; and (v) the contract was unlikely to be a conventional landlord and tenant agreement, as: (A) it was entered into on the "stayz.com.au" website; (B) only part of the Pambula Property was to be occupied by LOR's employees, with the remaining part of the residence to be occupied by the owners' elderly mother; and (C) it was inherently unlikely that the owners would not have been entitled to enter the Pambula Property to visit their mother, (the Absence of Evidence Ground). D. PRINCIPLES OF APPELLATE REVIEW 63 The principles of appellate review relevant to the disposition of this appeal are well established. This Court's appellate jurisdiction involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20] (Allsop J, Drummond and Mansfield JJ agreeing). The task of the Court on appeal is to correct error: Branir at [22]. Where, as here, there are challenges to findings of fact, the appeal is governed by a correctness standard as set out in well-established authorities such as Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. In such cases, the appellate Court is generally in as good a position to determine those facts: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [41] (Gageler J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Warren v Coombes at 552 (Gibbs ACJ, Jacobs and Murphy JJ). However, in order for such an appeal to be successful, it is well-established that a finding of error is indispensable, and that a mere disagreement on a finding of fact is ordinarily insufficient: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [45] (Perram J, with whom Allsop CJ and Markovic J agreed). 64 In respect of such an appeal, this Court must do a "real review" of the evidence that was before the primary judge: Fox v Percy at [25]; SZVFW at [32]. The appeal court must make up its own mind about the facts. However, it does not deal with the case as if trying it at first instance and has regard for the advantages enjoyed by the trial judge: Branir [28]; Aldi Foods at [47]. The proper approach is not to ask the court to survey all the evidence and to arrive at its own conclusions, or to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. The views and conclusions of the trial judge ultimately have to be shown to be wrong, and they should not be ignored and the case re-argued: Branir at [30]. 65 In assessing the evidence and the findings of fact, the appellate Court does so noting that the primary judge had all the advantages of making an assessment of the witnesses' evidence at trial, noting that findings of fact based on the credibility of witnesses can only be reversed by an appellate court "in exceptional cases": Fox v Percy at [94] (McHugh J). The "advantages of the trial judge" are not simply observation of cross-examination. They include "the advantages, subtle but real, of a trial judge hearing a long case and being able to assess and place all the evidence in its context as it unfolds and as witnesses (truthful, reliable, or not) deal with it": Frigger v Trenfield (No 3) [2023] FCAFC 49 at [142] (Allsop CJ, Anderson and Feutrill JJ); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at [89]-[91] (Kirby J). They include that the trial judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments; the trial judge hears and sees all of the evidence in a reasonably logical context; the evidence unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form; and during the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind: Frigger at [142]; Earthline at [90]. 66 Where findings are "based on a combination of impressions about the credibility or reliability of witnesses and other inferences from primary facts", they are liable to be reversed only if "shown to be contrary to 'incontrovertible facts or uncontested testimony' or be shown to be 'glaringly improbable' or 'contrary to compelling inferences'": Frigger at [141] and cases there cited including Fox v Percy at [28]-[29] and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ). 67 Having regard to the above principles, I next turn to set out the review of the evidence that I have conducted, and, in doing so, I set out those facts that were not challenged. E. THE EVIDENCE BEFORE THE PRIMARY JUDGE AND UNCHALLENGED FINDINGS 68 In this section, I have set out the relevant evidence and unchallenged findings about that evidence in essentially chronological order. I have also taken this course so that these reasons may be read as a self-contained whole, without unnecessary reference back to the primary judgment (other than where I have so stated). E.1 Employment Contract and Position Description 69 Mr Haley was employed pursuant to a contract with LOR signed on 25 July 2018 (Employment Contract) in the position of "Commercial Leader" and was appointed the leader of the Commercial Team for the Bushfire Project. Mr Haley was based in Sydney and worked out of LOR's head office in North Sydney, but was also expected to visit the areas where work was being carried out in connection with the Bushfire Project: PJ [48]-[49], [78]-[79]. 70 The Employment Contract contained terms that included the following (PJ [49]): (a) Mr Haley would report to "the Commercial Director, Simon Chatwin"; (b) Mr Haley would be required to work an average of 38 hours per week at times advised to him, and any reasonable overtime to meet the requirements of his role; (c) Mr Haley was required to familiarise himself with LOR's "Global Code of Conduct, as well as detailed policies, procedures, and other business rules… which are available through the intranet", although these policies did not form part of the Employment Contract. 71 Relevantly, in respect of summary termination, the Employment Contract contained the following clause (Termination Clause) (PJ [50]): Summary Termination If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you: (a) engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment; (b) engage in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company; … If you are terminated for misconduct, no payment will be made to you other than accrued entitlements up until the date of termination. (Emphasis added). 72 There was a document in evidence before the primary judge entitled "Position Description" for the position of "Commercial Leader" (Position Description). The Position Description stated that the person occupying that position reported to a "General Manager/Project Leader" and had a "[f]unctional supervisory responsibility for commercial staff, and other designated functional reports within a Region of the Hub": PJ [51]. Ultimately, the primary judge found that the Position Description was not relevant as LOR did not rely on it as part of the Employment Contract and did not rely on the standards set out in the Position Description in terminating Mr Haley's employment: PJ [58]. There is no challenge to these findings. Despite there being no challenge to the findings made by the primary judge in relation to the Position Description, there was no contest between the parties in the proceedings below or on appeal, that in his position as Commercial Leader, Mr Haley had a leadership role in respect of his subordinates. E.2 Code of Conduct and Travel Policy 73 One of the policies which was in evidence before the primary judge was a document titled "Doing the Right Thing Our Global Code of Conduct" (Code of Conduct). 74 LOR relied upon the part of the Code of Conduct that provided as follows: Relationships with other stakeholders We understand that our relationships with all stakeholders are important to delivering a successful outcome for our customers. What it means: Other stakeholders may include local residents and businesses, adjacent construction projects, community groups, approving organisations, funding bodies, trade unions and the media. During all of our interactions with others, including through social media, we must remember that we are representing our business, our customers, and our projects and we have a duty to maintain our professionalism at all times. We always: * treat members of the public and all other stakeholders with respect * listen to concerns raised and proactively seek a satisfactory resolution to any issues. … We never: * forget that our reputation depends on how we interact with all stakeholders * forget that when carrying out our work, we are guests in a local community … 75 LOR also relied upon a document titled "Travel Policy, Australian Hub" (Travel Policy) to the extent that it stated that: Employees are required to act in accordance with directions from Laing O'Rourke and to observe the Code of Conduct whilst traveling between their home office location and project/alternative work location. E.3 The Incident 76 As noted above, the Incident occurred late on the evening of 2 July 2020 and into the early hours of the following morning. The facts of the Incident emerge from the various accounts of witnesses which were before the primary judge and which are set out below. The primary judge concluded that the facts of the Incident were as set out at PJ [215]-[216]. Other than the specific allegations of factual error raised in the Amended Notice of Appeal, LOR does not challenge the facts of the Incident as found by the primary judge. E.4 Complaints received from the Pointons 77 On 3 July 2020, a person identified as "Amy" who apparently held the position of "Corporate Consultant, CTM Laing O'Rourke Team", sent an email to a person identified as "Tarsh". "Tarsh" was identified as being Ms Tarsh Woodford who occupied the position of "Hub Travel Coordinator, Central Travel Desk - Australia Hub": PJ [112]. In the email, Amy stated as follows: Disappointing news to start the day I'm afraid. I received the below message from [Ms Pointon], property owner of the 5 Bedroom Home that we have Boyle, Byrne & Neely guys staying. [Ms Pointon] has called me to discuss her version of events and reserves the right to cancel the booking. Hi Amy, It's 1:45 am and we have had to have the police to the house after noise complaints from neighbours. There is a strict no party policy, clearly stated in the Terms and Conditions and the tenants are in breach of this. I will call you during work hours to discuss. Regards, [Ms Pointon] Last night at least 10 people were at the property including the 5 booked guests. Visitors included Tom (surname unknown but [Ms Pointon] believes is Andy's boss), David (believed to be boss of the 5 guys, a bit older than the others) and a couple of girls in a QLD plated vehicle thought to be working on the project. The first noise compliant [sic] was raised just after midnight by 85 year old neighbour which is the owner's mother. The guys are aware she lives next door. The owner [Mr Pointon] visited property and asked that the party be shut down due to noise complaint and reminded them that no parties are permitted at the premises. At 12.45 am, [Mr Pointon] phoned and spoke to Andy, asked again that noise stop and visitors that were not house guests to leave premises. At 1.00am [Mr and Ms Pointon] arrived at premises and party was still going. Due to the noise the occupants could not hear knocking at main entrance door, it was open, so [Mr and Ms Pointon] entered the property and spoke with Andy again asking the party to be shut down. [Ms Pointon] has stressed that Andy was respectful and is very apologetic however did not appear to have any authority over the other guests. At this time, Shaun, Shane and Tom became aggressive. They physically threatened both [Mr and Ms Pointon], saying they had paid for the property and could do as they wish and to go away (cursing). Tom needed to be restrained by visitors to the property. At this point the Police were called, [Mr and Ms Pointon] left the premises along with the girls that were visitors. Photos were taken by the owners of the amount of alcohol consumed and are concerned about the state of their property as the house was only cleaned yesterday. Laing O'Rourke are paying for weekly servicing of this property. The booking is valued at $775 per night (before weekly servicing fee). The guests have been at the property 11 nights. The owners are willing to continue the booking subject to Shaun Boyle & Shane Neely being removed from the property this weekend not return for the duration of the booking to 30 August and Tom (surname unknown) not to access property again due to the physical threats. Andy Byrne has apologised in writing to the owners and acknowledged wrongdoing. The remaining 58 nights is valued at $44,950 before weekly servicing so it is in best interests to work with the owners. Can you please advise how I may return to [Ms Pointon]. She has offered her number should Laing O'Rourke wish to speak with her about the incident… These owners as you may recall have been very accommodating, 10% discount on long stay rate, allowed the guys to store work equipment prior to their arrival and an extra night free of charge . (Emphasis added). 78 In the proceedings below, the primary judge referred to the above as the "First Mr/Ms P Account" (PJ [113]) and I will refer to it as the First Version of the Pointon Complaint. 79 Later that day (3 July 2020), Ms Woodford sent an email to Mr Paul Barrie (Project Director for the Bushfire Project) and Mr Jeff McAuliffe (Project Leader for the Bushfire Project), copied to Mr Murray Curnow-Rose (Human Capital and Industrial Relations Lead) and Ms Michelle Salisbury (Senior Human Capital Advisor). In that email, Ms Woodford pasted an extract from the email "Amy" had sent to her that morning, including the First Version of the Pointon Complaint, but replaced the words "go away (cursing)" with the words "Fu*k off" (as set out at PJ [114]). Ms Woodford's email stated she had spoken to the Pointons and referred to a "video recording (link sent in separate email) of the owners [sic] conversation with Andy Byrne whilst they were waiting for the police, screen shots of Andy's conversation and also photos of the property – noting the house rules state no parties". Ms Woodford then added the following account: [Ms Pointon] (the owner) passed on again (in my second conversation with her) her concern of how aggressive Tom Haley was and believes it might have been Adam who had to restrain him (as he wanted to f*ck up the old man and his Mrs) but between the 3 employees (Shane/Shaun and Tom) they were "egging" each other on. (Emphasis added). 80 In the proceedings below, the primary judge referred to this as the "Second Mr/Ms P Account" (PJ [114]) and I will refer to it as the Second Version of the Pointon Complaint. 81 Later on 3 July 2020, Mr Curnow-Rose sent an email to Mr Barrie, copied to Ms Helen Fraser (General Manager, Human Capital), Mr Chatwin and Mr Dane Bates (Head of Industrial Relations and Human Capital Operations), in which he stated (PJ [222]): Based on the brief outline of the incident and the serious behaviours exhibited by our staff, firstly we need to stand down the core group, undertake an investigation, then pending the investigation outcome seek disciplinary action if deemed proportional. The aggressive and inconsiderate behaviours show little regard for the communities in which we operate and bring the negative publicity to LORAC. Statements will need to be collected and the full circumstances understood. (Emphasis added). E.5 Mr Haley is suspended and an investigation is commenced 82 Sometime after 5:11 pm on 3 July 2020, Mr Curnow-Rose sent an email to Mr Haley attaching a letter dated 3 July 2020 that stated as follows (PJ [225]): Laing O'Rourke Australia (Laing O'Rourke) has recently received allegations against you of aggressive and inconsiderate behaviours that show little regard for the communities in which we operate and bring negative publicity to Laing O'Rourke (Allegations). Laing O'Rourke takes these matters seriously and intends to investigate the Allegations. Investigation You will be contacted next week in relation to the investigation. As part of the investigation process, you will be provided with details of the Allegations and an opportunity to respond. I want to stress that at this stage Laing O'Rourke has not formed any view in relation to the Allegations. This includes whether any disciplinary action may be warranted. If Laing O'Rourke considers that such action is warranted following the investigation, you will be advised of this and again be given an opportunity to respond. Suspension In the meantime, we have decided that you should not attend for work while the investigation is being carried out. Accordingly, your employment is suspended (with full pay) effective immediately until further notice. While suspended, you are not required (or permitted) to attend for work, however, you will still receive your normal pay. (Emphasis and additional emphasis added). 83 Early on 4 July 2020, Mr Curnow-Rose sent an email to the Pointons, apologising "for [the] action of our staff Thursday evening", and stated that LOR would be fully investigating the Incident. Later that day, Mr Curnow-Rose sent a further email to the Pointons attaching a letter dated 4 July 2020 confirming that LOR "is undertaking an investigation into matters raised by [you] as set out in your email and telephone call with Natasha Woodford on Friday 3rd July 2020". The email stated that (PJ [227]): The investigator is not the decision-maker- they will provide their findings to the Head of Employee and Industrial relations who will then determine the outcome of the investigation in consultation with the relevant decision makers. 84 The email then outlined the investigation process as follows (PJ [228]): I will advise the Respondent that a complaint has been made by you and of the general nature of the Complaint. The investigator will then: * meet with you to clarify any questions they may have about your Complaint; * provide the Respondent with details of your Complaint and seek a response; * meet with any identified witnesses who are relevant to the matter; and * provide you with an opportunity to respond to any relevant new information raised, before the investigation concludes. (Emphasis added). 85 Also on 4 July 2020, Mr Curnow-Rose sent a letter to Mr Haley informing him about, among other things, the "investigation process". Mr Curnow-Rose stated (PJ [229]): I will: * meet with the Complainant to clarify any questions they may have about the Complaint; * provide you with details of the Complaint and seek your response; and * meet with identified witnesses who are relevant to the matter. If new information arises during the course of the investigation, it may be necessary for me to conduct follow up interviews with witnesses, and to seek further responses from you and the Complainant. . . . . I plan to complete their [sic] interviews with the Complainant and other witnesses as soon as possible. I will then arrange a meeting with you and your support person (if any) to obtain your response. I may also provide you with details of the allegations about your conduct in writing. If you believe there are witnesses who may be relevant to the investigation, please let the [sic] me know when I meet with you. You must not speak to any potential witnesses about this matter. 86 On 4 July 2020, Mr Haley telephoned Mr Curnow-Rose. Mr Haley recorded this conversation with Mr Curnow-Rose's permission. In that call, after stating that he was "very concerned about the implications" of the letter Mr Curnow-Rose had sent to him, Mr Haley said he wanted Mr Curnow-Rose to confirm "whether the allegations made… amount to a misconduct offence or a serious conduct offence". Mr Curnow-Rose said that he was "unable to answer that question at this moment, until I fully understand the situation that took place". In a finding that was not challenged, the primary judge found that this was not a responsive answer to Mr Haley's question, stating (PJ [231]): Mr Curnow-Rose had recommended that Mr Haley's employment be suspended, and LOA had accepted that recommendation by suspending Mr Haley from his employment; and presumably he had done so because he had formed the view that, prima facie, Mr Haley had engaged in misconduct. 87 Mr Haley then told Mr Curnow-Rose that he was "flabbergasted" that he had been accused, and said he wondered what was going on. Mr Curnow-Rose responded as follows (PJ [233]): [T]here has been accusations made, there's alleged behaviours that I have broadly relating to both the letters. I understand that I need to know what the situation was to understand that and expand on that, but at the moment there is no accusations of anything. (Emphasis added). 88 The primary judge found that this part of what Mr Curnow-Rose said was difficult to understand given that Mr Curnow-Rose had already recommended that Mr Haley be stood down on the basis of allegations of "serious behaviours exhibited by our staff" and "aggressive and inconsiderate behaviours" and had apologised to Mr and Ms Pointon for the "action of our staff". In those circumstances, the primary judge stated that "it is difficult to see how Mr Curnow-Rose could reasonably have said that he 'need[ed] to know' what the situation was": PJ [234]. There is no challenge to these findings. 89 There was then a discussion as to the policies it was alleged Mr Haley had breached. The conversation was as follows (PJ [235]): TH — just the policies that I have allegedly breached, that's what I am looking for.. I am looking to understand what I am being held to account against, erm, I am looking to get the context to the allegations and what I have done wrong. I think, I think what I am trying to understand is what I've done wrong and why I have been formally suspended because I don't understand it, so I am scratching around now trying to work out why I am involved in the process, so that's why I need to gather information and understand it. MR — as the first, sorry tom, to interrupt you there. As the first paragraph says of the letter, Laing O'Rourke Australia is undertaking an investigation to the matters of your conduct. The Complainant has alleged aggressive and inconsiderate behaviours that show little regard to the communities in which we operate and bringing negative publicity to Laing O'Rourke. That's the broad context of that, there are no other details, because the investigation has not started. As part of an investigation the first stage is, to stand people down or suspend them, with full pay, so we can get this all cleared up and give us time. (Emphasis added). 90 The primary judge found that Mr Curnow-Rose's statement that "there are no other details, because the investigation has not started" was incorrect because, by that time, he was aware that the Pointons had alleged more specific matters as set out in the emails from "Amy" and Ms Woodford on 3 July 2020: PJ [236]. There is no challenge to this finding. E.6 First set of interviews conducted on 6 July 2020 91 On 6 July 2020, Mr Curnow-Rose interviewed Mr David Field (Procurement Manager and visitor to the Pambula Property on the night of the Incident), Mr Shaun Boyle (one of the Pambula Property Residents), Mr David Grierson (Senior Superintendent and visitor to the Pambula Property) and Ms Pointon. I summarise and extract relevant portions of those interviews below. E.6.1 Mr Field's account 92 Mr Field said he left the Pambula Property before midnight. As he walked out, he saw a gentleman who looked agitated and who asked him to turn the noise off and said that this was the first and final warning and that his mother was on the premises. Mr Field went back inside and spoke to Mr Andy Byrne, saying that there was a man outside who he believed was the owner of the property and who asked that the noise be turned down and the music off. Mr Field left the premises and recalled that the music was turned off when he left: PJ [115]. E.6.2 Mr Shaun Boyle's account 93 Mr Shaun Boyle said that there was a BBQ at the Pambula Property with food and drinks, and later on there was participation in singing karaoke using YouTube. Mr Shaun Boyle stated that such an event had been held previously with the company team and was a good team bonding exercise. At one point, he was seated on the sofa and Mr Haley and Mr Adam Neely were standing up and singing. Mr Shaun Boyle looked up and saw "Tom being pushed to the side" by a man he did not recognise. He recognised Ms Pointon who he had met once before. The balance of the account as relevant was set out in the primary judgment as follows at PJ [117]-[120]: … They stormed through and pulled the remote off Adam. Started shouting for everyone to get out. In shock. We started saying we were renting the house and they were not allowed to enter house. There was a couple more exchanges. We moved outside towards the door. They said they would call the co[p]s, we said call them we are not doing anything wrong and we aren't making much noise. Adam said to the owners you said we can make as much noise. After an interruption, the interviewer asked: "So Tom and Adam were signing [sic]?", in response to which Mr Shaun Boyle said (emphasis added, and errors in original): Tom and Adam were singing. I was sitting on the sofa, looked up and the owners come through door. I seen Tom get pushed to the side, both went towards Adam and grabbed remote, they turned off tv. We all stood up and started arguing. Said couldn't come into house the way we they did. Moved to door, argument continued. Adam said to [Ms P] she told us we could make as much nose as we wanted to. The day we viewed house with Andrew and Adam, [Ms P] told us about resident downstairs. We locked the balcony before the BBQ so no one could go out there. Found strange as it was not too loud. Husband shouted at Adam don't speak to my wife and grabbed him aggressively. Then Andy and Dave told everyone to go inside and they talked to them outside. That was my last interaction with couple. The cops came, no damage to house, just drinks. The cops left happy enough. In response to the question whether Mr Shaun Boyle could give a "timeline for events that night", Mr Shaun Boyle said: BBQ at 6pm / food, eating and chatting. The music around 9 or 10pm not 100% sure went on for 1–2 hours. Maybe rafter [sic] 12 the couple entered the house. Not 100% sure. Later in the interview Mr Shaun Boyle gave the following answers to questions Mr Curnow-Rose asked (emphasis added, and errors in original): MCR — Do you believe the actions appropriate that night of the group? SB — Reacted the way. Not the way we accused of. Not aggressive, intimated. They barged through aggressively. MCR — Who barged through? SB— Tom pushed out of the way, ran towards Adam. MCR — So they pushed past Tom towards Adam? SB— Yes MCR — What was he doing? SB — Singing MCR — Where were they? SB — We were sitting down, they were in front of us, they barged through Tom to get remote off Adam. MCR— Who barged through? SB— Both of them (Emphasis added). E.6.3 Mr Grierson's account 94 Mr Grierson gave the following overview as set out at PJ [121]: Majority of people rocked up at 7pm. Commercial team did BBQ, food, alcohol. We stood in kitchen area, eating, having a few drinks. Around 10:30–11ish we went into the lounge area, had karaoke. Initially around 20 people in kitchen and karaoke was 10–12 people max. I would say 11:30am [sic] owners rocked up come in to the lounge and basically told everyone to get out. Everyone went into the kitchen, all talking collectively around the bench in the kitchen and then basically the owners said she had called the police, told everyone to get out. I said everyone move way as they were all stood there. I tried to get everyone out of the way, myself and Andy tried to diffuse the situation with the owners. We went outside, had a conversation with her and husband, asked not to ring police, she said she already did it. Police came into house, we explained what happened and they left 95 In response to questions from Mr Curnow-Rose, Mr Grierson gave the responses set out at PJ [122]-[124]: In response to the question, "[w]hat was [the] emotion in the room?", Mr Grierson said (emphasis added): There was shock from the commercial boys that live there as the owners said get out. In the kitchen during the conversation, there was to-ing and fro-ing. Someone said why you want us out, the owner went fucking get out. I can't remember who said it, but they said we rented this place, the owners said we know, we want you out. When conversation happened, Andy and I tried to diffuse it, tried to appease the owners as they were agitated as they just walked into the house. At that point, Mr Curnow-Rose is recorded as asking: "[w]hat was the reaction of Tom Haley?", in response to which Mr Grierson said (emphasis added): Tom was sort of further back than most people. It was a heated discussions [sic], I can't recall what was said. I was in there talking, it was so quick to be honest. They wanted everyone out of the house. I introduced myself to try and sort things out. The owner [Mr P] was agitated, I think Tom felt that he didn't want to see the young lads being intimidated . . . . During the conversation, Tom said you "can't do this". Mr Grierson also gave the following information (emphasis added): MCR— Coming back to Tom, you saying word like intimidation was there any heightened emotions displayed during incident while the owners were there? DG — Depends how you interpret it — you could say aggression. I didn't want owners to feel intimidated. There was no one walking towards them threatening them. They said get out, Tom said you can't do that, owner said I can do what I fucking want. Heated conversation swear words used. The women [sic] turned around and said I called the police. . . . MCR — Police turned up, what time? DG — 15/20 minutes after owners left, they came into the house as well. MCR — What did they say? DG — Myself and Andy spoke with them, explained 2 people singing karaoke, owners turned up, told us we were being too loud, he said it's not a problem. The police didn't seems [sic] too phased about it. MCR — Why were the owners so aggravated? DG — In light if [sic] what I know now, I can understand. Apparently an older lady lives underneath the house, only found that out after the incident. MCR — Do you feel the behaviour was overtly emotional? DG— They bowled in, snatched the remote control off someone. We all walked into the kitchen, they said we want you fucking out of here. The guys live there, not doing anything wrong, don't want to piss you off etc, that's why Andy and myself said a couple of us speak with the owners and diffuse the situation. DG — They were upset because their mother lives underneath. There wasn't obsessive [sic] noise, only 1–2 people signing [sic] at the one time. MCR— Did at any point a Laing O'Rourke employee restrain another Laing O'Rourke employee? DG — Um, restrain, I might have barged people to get out of way, barged is the wrong word, I put my arms out to advise them to move out of way to have a decent conversation. MCR — Where [sic] there any comments that were made that were overtly aggressive to the owners that stick in your mind? DG — Don't recall, no. MCR — Did at any point a Laing O'Rourke employee make physical treats [sic] towards the owners of house? DG — Don't recall words or physically threats, conversation between Laing O'Rourke people and the owners, I can't remember what was said. MCR — Understand that private location, BBQ and alcohol provided, was anyone overtly intoxicated? DG — No one blind drunk, people have a few bottles of beers and eating food. No one out of order/out of control. MCR — Are you comfortable in times you have recollected? DG — Approximates, wouldn't put my house on it. MCR — Can we go back for a moment, one of the owner's grabbed remote control? Can you please explain? DG— Took it out of someone's hands, as they were using it as microphone. MCR — Male of female home owner? DG — Can't recall, sorry (Emphasis added). E.6.4 Interview with Ms Pointon 96 The interview conducted by Mr Curnow-Rose of Ms Pointon was referred to by the primary judge as the Third Mr/Ms P Account and I will refer to it as the Third Version of the Pointon Complaint. The primary judge set out this account as follows at PJ [125]: At 12:10 am my husband received call from his mother . . . who lived downstairs. She said there was a, loud party upstairs and it had been going since 8:00pm and she had enough. We live 10–15mins away, so [Mr P] drove there and saw what he thought was a senior Laing O'Rourke person. Thought he was senior because of age. [Mr P] explained the no party policy, asked for him to shut it down. [Mr P] had taken photo of the event. He saw the man walk back into the house and saw all people turn around and look at him. That man left. [Mr P] continued watching from the Hill. There was no change and the party was continuing, so [Mr P] spoke with Andy. Advised him of the no party policy, and that it needed to cease immediately, said it was the first and final warning. Andy apologised and [Mr P] left. Andy was the person who booked with us and he seems decent and respectful, so thought he would handle the situation so [Mr P] left. When [Mr P] got home around 12:46am, I had gotten up looking for him and he told me what happened. I called Andy's mobile. He answered and the party noise was still evident. I told him to stop it, he apologised and told us he would sort it out. At around 12:53am, he sent text, 1:05am we stood out the front of the house, near [Mr P's mother's] bedroom. We went to the back of house, they appeared to be gathering the lounge room. In the lounge room there is a surround sound system with base [sic], they had the music very loud and we tried knocking on the door, they didn't hear us. We entered the hose [sic] and went into lounge room, no one saw us initially. Andy was on the lounge and he saw us. Shane had remote, I took it off him, he turned around and struck me, he then apologised when he realised it was me. Everyone was swearing and we asked for the party to be shut down. Shaun got up into my Husband's face, told him to fuck off, we have paid for this house, get out and take your wife. Tom was there and there was 5 of them around [Mr P] and he was feeling threatened. I said I'll have to call the police and someone responded call the f-ing police. I left [Mr P] in there. There is limited phone reception in the house so I had to go onto the backyard. Because it's a regional town I don't have much faith in the Police as they usually send from Batemans Bay and it can take a few hours. But it was manned this night. Walking through the house, the amount of alcohol empties, cake on floor, obvious that it was quiet a party. They followed us out the back of the house. Shaun appeared to be main ringleader saying, we f-ing we paid for this, get out. Tom started chanting, go home old man, old lady and had to [sic] restrained, said he was going to f-up the old man and lady. I don't know who was restraining him. Maybe Adam or someone. Shane was with him, he was aggressive. I had to ask Tom and Shane for their names. They didn't want to give me their names, but they eventually did. We were standing outside with Andy and Dave Grierson. David was very intoxicated, trying to reintroduce himself, he said he only arrived and that he didn't know what [sic] going on. He message yesterday. I'll send that message through. Andy kept apologising. A driver arrived to take girls away, one of the girls tried to stop Shane and Tom and apologised. Andy kept apologising, appeared distressed. At no time was he disrespectful. Apparent he didn't have authority of anyone at the party. Police arrived and they could only do a noise abatement. Said we were crazy to go into the house. [Mr P's mother] had a pacemaker fitted a couple of weeks ago and we have a no noise policy. No noise on deck, Andy knew this. Before that evening everyone was very respectful leaving at 5:00am, [Mr P's mother ] hadn't heard them. He sent us text the next morning, asking if he could do any jobs to make a mends [sic]. He took [Mr P's mother] some chocolates. I didn't response [sic] until later that evening and it went to voicemail. Text me asking me if we could meet on Sunday, agreed to meet at 11 am. That's when we meet. Said I wanted to inspect the house. … That's the best of my recollection, it was very frightening at the time. It was a pack mentality at the time going on in there. MCR - Thank you it's very helpful. 97 Ms Pointon also said that she had "another recording, it's a voice recording", which Mr Curnow-Rose asked her to send through. Ms Pointon then added the following (as recorded at PJ [126]): Andy told us that everyone involved have never acted like this before. I do feel their remorse is only because they are in trouble. Anyone in senior position that was there and didn't shut it down, it's no acceptable. I come from a corporate background. If in your investigation you find out they didn't do the right thing, I ask that you remove them. If they weren't part of it ok then I'm ok for them to come back. E.7 The primary judge's assessment of the evidence gathered to this point by LOR 98 The primary judge found that, by the time Mr Curnow-Rose completed his interview of Ms Pointon, it would or ought to have been apparent to him that Ms Pointon had somewhat expanded the First Version of the Pointon Complaint, to the extent it related to Mr Haley. On the Third Version of the Pointon Complaint: (a) Mr Haley was among five people around Mr Pointon that made Mr Pointon feel threatened; (b) Mr Haley started chanting "go home old man, old lady"; (c) Mr Haley had to be restrained; (d) Mr Haley said he was "going to f-up the old man and lady"; (e) Mr Haley was asked his name, but after not wanting to give his name, eventually informed Ms Pointon of his name; and (e) one of the girls tried to stop Mr Haley: PJ [238]. This finding is not challenged. 99 The primary judge also concluded that, by the time Mr Curnow-Rose completed his interview of Mr Grierson, it would or ought to have been apparent to Mr Curnow-Rose that there were significant discrepancies between the Pointons' Accounts, and those given by others. On Mr Shaun Boyle's and Mr Grierson's accounts, which were substantially to the same effect, Mr and Ms Pointon barged into the Pambula Property, Mr Pointon pushed Mr Haley aside (on Mr Shaun Boyle's account), Mr and Ms Pointon shouted for everyone to "fucking get out", and Mr or Ms Pointon grabbed the remote control from an employee: PJ [238]. This finding is not challenged. E.8 The Audio Recording is sent to LOR 100 At 1:55 pm on 6 July 2020, Ms Pointon sent to Mr Curnow-Rose an email that attached the Audio Recording. The email stated (as extracted at PJ [127], [133] and [239]): The attached voice recording was made after I rang the police and we were waiting outside on the back deck for them to arrive. It took 15–20 minutes for the police to arrive. From where we stood we had a clear view of the kitchen where they had all moved to, as it opened out to the back deck. I remember Shaun [Boyle] kept coming outside to where we stood, I think I started recording after he continued entering my husband's personal space (within cms of his face) and had to be restrained but it is a bit of a blur now. We regret engaging at all while we waited for the police. After this recording I changed to video and the video (previously sent) was recorded. (Emphasis added). 101 The primary judge referred to the above email as giving rise to the Fourth Mr/Ms P Account. 102 The Audio Recording is 5 minutes and 6 seconds long. It was played in the hearing before me. I listened to it intently without the aid of any transcript. Despite my concentrated effort, I could not hear the Offensive Words being uttered on the first three occasions. On a fourth occasion, after the Audio Recording was played back from the relevant portion (i.e., 1 minute and 16 seconds onward), I could make out the Offensive Words being said. 103 The primary judge set out a transcript of the Audio Recording by way of an aide memoire. The primary judge stated that (at [135]): … The transcript is inaccurate to the extent it suggests the words it records were said sequentially. In truth, parts of the audio recording record words being spoken at the same time by different people. That means that it should not be assumed that Mr [Pointon] or Ms [Pointon] heard everything that is recorded on the audio recording. Moreover, a number of the words the audio recording records were exchanged between persons that did not include Mr [Pointon] or Ms [Pointon]. 104 In relation to the first portion of the transcript (from the beginning through to 1 minute and 30 seconds), the primary judge recorded that the aide memoire disclosed the following (PJ [136]): The audio recording is approximately 5:06 minutes long. It begins with "AB" (Mr Andrew Byrne) telling "AN", namely, Mr Adam Neely, to "[g]et in there now". Mr Adam Neely states "She's telling lies and he's telling lies"; and DG (Mr Grierson) states: "I'll come and grab you in a minute mate. Trust me I understand your point of view". The recording continues as follows: 0:00-0:15 . . . . AB - These guys are a really nice couple and we have fucked this up here AB - and I accept that and I apologise and we will be gone in the morning if we have to, that's fine 0:16-00:30 Female - Woo good luck [Ms P] – No they need to go now. I'm not having it. You can all get out now. [Ms P] - The police are coming now *Hear the door slam Female - sorry, that's my bad [Ms P] - This is not ok Female l - Were going 0:31-00:45 Female 2 - We are going now DG - Oh you're off hey Female - Yeah AB - See you in the morning Female l – Yeah Female 2 - Yeah, alright AB - The thing is, there is nowhere else for us to go. [Ms P] - Well that is your problem 00:46-1:00 AB - Ok [Ms P] – You're still going in there, they're still drinking, they're still raising their voices SB (Mr Shaun Boyle) - Yeah like what's the problem, if ya don't like it DG - no no no no Shaun, Shaun, Shane, Shane SB - No, can I just. If you're going to rent the house DG - Shaun, Shaun, Shaun SB - Like what's the point. Like if 1:00-1:15 [Mr P] - We have been renting this house for two years and have had no problems [Ms P] - Zero SB - What's wrong tonight then [Ms P] - Because people are respectful [Mr P] - You are being extremely noisy *Inaudible SB - We paid the 60 grand 01:16-01:30 SN - Can't have a bit of fucking noise, can we not [Ms P] - Just don't engage with him SN – Can't have a bit of a laugh like. Can we not have a crack 105 It is at or about this point of the Audio Recording that the primary judge found that the Offensive Words were uttered, and that they were uttered by Mr Haley: PJ [137]. In relation to this part, the primary judge stated as follows (PJ [137]-[139]): To this point, the foreground noise, as recorded on the audio recording, is dominated by "SB", (which I find to be a reference to Mr Shaun Boyle) and "SN" (which I find to be a reference to Mr Shane Neely) arguing with Mr and Ms P, and Mr Grierson attempting to dissuade them from doing so. In the background, and while Mr Shane Neely says "Can't have a bit of a laugh like. Can we not have a crack", one hears, if one directs the concentration away from what Mr Shane Neely is saying, the words: "go home you fucking silly old cunt". I find that the voice uttering these words is that of Mr Haley. I also find, however, that it is only if the listener consciously directs attention away from the words that constitute the foreground noise that the listener can begin to detect that words are being spoken in the background at the same time as the words that constitute the foreground noise are being spoken; and that it is only with additional effort that the listener can detect that the background words are "go home you fucking silly old cunt", and conclude that it is Mr Haley that is uttering them. The audio recording then records that, in the course of Mr Shaun Boyle saying: "Fuck, Like it's fucking, I guess; you know what I mean, like it's fucking, it's", and Mr Grierson saying "Shaun do me a favour and just go", one hears more clearly the words "Go home old man, old lady, go home, go home, go home, go home". I am satisfied that the voice uttering these words is also that of Mr Haley. The audio recording continues as follows (emphasis added): . . . . DG - Shaun do me a favour and just go [Ms P]- And what's that one's name TH - Go home 01:31-01:45 [Ms P] - What's your name? (Phase 1) TH - Go home [Ms P] - What is your name? DG - Go in the house and let me speak to the owners TH - What's your name? [Ms P] - My name is . . . and I'm the owner, so what's your name? TH - My names is Tom [Ms P] - Tom, thank you Tom DG - Seriously, oooi SB - We can't have a fucking TH - Go home 01:46-02:00 DG - Shane, Shane, Shane (Phase 2) TH - Go home DG - Guys, guys, guys, do me a favour SB - Like how much are we paying DG - No, no, no, do me a favour, go in the house SB - I'm just want DG - No, no 106 There is no challenge to the finding made by the primary judge that it is only if the listener consciously directs attention away from the foreground noise that one can detect that words are being spoken in the background and that it is only with additional effort that the words "go home you fucking silly old cunt" can be heard on the Audio Recording. This also accords with my own assessment of the Audio Recording, however, in my opinion, at least on the first hearing, those words are barely audible. 107 The primary judge further found that (PJ [140]): Ms [Pointon]'s question 'And what's that one's name?' does not appear to be, and I am not satisfied that it is directed to Mr Haley; Ms [Pointon]'s question appears to be directed to Mr Grierson. That may imply that Ms [Pointon] did not understand that Mr Haley was saying anything to her or to Mr [Pointon]. Mr [Pointon] first addressed Mr Haley when she asked his name; and Mr Haley first addressed Ms [Pointon] when he responded to that question; and their conversation ended when Ms [Pointon] said "Tom, thank you Tom". 108 The remainder of the transcript is set out in full in the primary judgment at PJ [141] and it is unnecessary to reproduce it here. E.9 Further interviews on 6 July 2020 109 On the afternoon of 6 July 2020, Mr Curnow-Rose interviewed Mr Andrew Byrne (one of the Pambula Property Residents), Ms Amy Lovell (Assistant Quality Surveyor and visitor to the Pambula Property on the night of the Incident) and Ms Lisa McKeever (Commercial Administrator and visitor to the Pambula Property). 110 Each of Ms Lovell and Ms McKeever's accounts are recorded at PJ [130] and [131]. Both recalled "the owner" coming up to the house and attempting to get the music turned down. Ms Lovell stated that everyone's behaviour was "fine" before she left, while Ms McKeever stated that she did not observe any "altercation" or see any behaviour that was "aggressive or in anger" before she left. E.9.1 Mr Byrne's account 111 Mr Byrne had prepared a statement for the purpose of his interview. It is recorded at PJ [128] as follows: When viewing/moving into the house [Ms P] (The owner) made me aware of the resident downstairs, I made her aware that I would be having a BBQ with work colleagues at some point over the next two weeks. [Ms P] informed me that if we were inside, out the front and not in the back balcony we could make 'as much noise as we wanted' (were the exact words used). Therefore, I believed there was an agreed rule that noise from a BBQ could be contained inside and out the front with no nuisance to the resident below. At no point in the evening was anyone on the back balcony. The cause of the noise was the group participating in karaoke — which in my time with the business has a been a frequent activity to welcome new staff and create a team atmosphere. This had happened previously with many other staff members at the BBQ and also others that did not attend this BBQ. It is important to note that the [sic] was a very well natured evening, everyone was in good spirits and there was no negativity at all within the group at all — gathering was in control. There were two points to note with the owners, the first of which at circa11.30ish was a conversation with myself and [Mr P] (owner) where I agreed to close the doors. I am not certain that everyone in the group was aware of this. Half the group were leaving via designated drivers taking them into town. There are no taxis, busses or any other form of transport that would enable the group to leave quickly. Very shortly after that both [Ms P and Mr P] entered the property unannounced and forcibly removed TV remotes from two people participating in the Karaoke. Following this, there was a couple of exchanges between the group. These were along the lines of the owners insisting everyone left the house and members of the group responding by saying we had rented the house and they should not be here, and they had not been warned about the ants in the house was I think one comment made. I convinced the owners to come with me to the front of the house to calm them down as they were very agitated and to diffuse the situation. There were some more words exchanged between both sides and the only act of aggression I saw was [Mr P] grabbing one member of the group I believe Adam. That is when myself and Dave Grierson decided to leave me to speak to owners as everyone else was inside with the doors closed. This lasted no more than 3–5 minutes. I want to be clear form [sic] my prospective [sic] there was no aggression from myself or any member of the group that I saw, from my perspective my focus was on calming the resident down that's where I saw aggression. At this point the situation was over and had been diffused, no further noise was being made to my knowledge. [Ms P] informed me that they had contacted the Police before entering the property and I thought it best I wait for them to arrive and speak directly to them. Very shortly afterward they arrived and after liaising with the owners I spoke to them; they looked into the house briefly and spoke to the other members of the group before quickly ascertaining that the situation was clam [sic], there was no aggressive behaviour of any sort and no noise and were happy to leave us at the property with the residents still down stairs. Since the event I have taken the responsibility of apologising to the owners both [Ms P] and [Mr P] and the resident below for the noise compliant [sic] and the subsequent argument as I had the positive relationship with them at the end of the night. The apologies had been accepted and I visited the resident downstairs and spoke with her in the morning with some chocolates and I believe that was the end of it of the matter and need no further involvement from anyone in the group. (Emphasis added). 112 Mr Byrne responded to questions asked of him by Mr Curnow-Rose that are recorded at PJ [129] as follows: MCR — At any time did a Laing O'Rourke employee have to hold back another Laing O'Rourke employee for fear of being aggressive towards the home owners? AB — At one point Dave Grierson got everyone back. …. MCR — Please in your words, explain the temperature/mood of the group when owners entered the home? AB — When they came in, there was surprise, they didn't know who the people were when they grabbed the remotes off them, next they were telling us to get out. Not much aggression, definitely aggression from [Mr P]. I didn't see any aggression from our group from my point of view. Sole focus was on the owners. … MCR — What were some of the comments between the people in house towards owners in that period? AB — Comments were we have rented and paid for this place, you shouldn't be here. Leave us alone. Didn't warn us about the ants. I couldn't tell you every single comment. Didn't hear anything else — but that's the level of comments. Maybe about us paying and they shouldn't be here. MCR — So to reconfirm, you did not observe any adverse aggression towards the owners? AB — No, not that I saw. Only aggression was from the owner [Mr P] — my focus on him. MCR — Why are you are saying he was aggressive? AB — The way he was speaking and near the door he grabbed Adam. MCR — Can you explain? Where did he grab him? AB— He grabbed his arm. MCR — Why? AB — May have been the comment around the ants. That's when I said leave me with the owners. MCR — So in the house, there were 7 males is that correct? AB — At that point definitely just us. MCR — And you had been drinking all afternoon since 4:30pm? AB — Since 7pm. MCR — Who was holding the remote? AB — I'm not 100%, could have been Tom, can't 100% say. MCR — Again your saying there was no threatening statement made against owner? AB— No, no, not that I heard. … MS — Have you spoken to the owners of the property since the incident? AB — Friday morning text her to apologise, they wanted to inspect the house, so we arranged for 11am yesterday. We spoke about it. I didn't bring up the aggression, I said I was sorry on a personal level. His mother is an older women, so the tension in [Mr P] is understandable. I spoke to them yesterday as they wanted to inspect the house. There is just myself here. E.10 Letter to Mr Haley setting out allegations on 6 July 2020 113 On 6 July 2020, Mr Curnow-Rose sent Mr Haley a letter that stated as follows: To assist me in the investigation, you are required to respond to the following allegations: 1. Allegations 1.1 Aggressive and inconsiderate Behaviour Allegations (a) On Friday 3 July 2020, around 1 am in the morning. while at a social gathering at the [Pambula Property] you acted in an aggressive and inconsiderate manner towards [Mr and Ms P]. [Mr and Ms P] felt your behaviour was deplorable and they felt intimidated by you. … Next steps At this stage. the matters raised in this letter are allegations only. No view has been formed about the truth or otherwise of the allegations. However, you should be aware that if the alleged conduct is substantiated, this conduct: * could be serious misconduct; * may amount to abusive and threatening behaviour; * could damage Laing O'Rourke reputation as an organisation; * could be in breach of Laing O'Rourke's Code of Conduct and the terms and conditions of your employment with Laing O'Rourke. Depending on the findings of the investigation, you could be subject to disciplinary action, including termination of your employment. Meeting You are required to meet with me on Tuesday, 7 July 2020 time] [sic] to provide your response to the allegations. (Emphasis added). 114 The primary judge made a number of findings in relation to this letter and an earlier draft of the letter: PJ [241]-[245]. Those findings were relevant to the primary judge's evaluation as to whether the investigation that was conducted was a "genuine" one. 115 Notably, the primary judge found that certain words had been removed from the earlier draft of the letter in the section headed "1.1 Aggressive and inconsiderate Behaviour Allegations". Those changes were recorded in the primary judgment in mark-up at PJ [243] as follows: 1.1 Aggressive and inconsiderate Behaviour Allegations (a) On Friday 3 July 2020, around 1 am in the morning. while at a social gathering at the [Pambula Property] you acted in an aggressive and inconsiderate manner and verbally threatened towards [Mr and Ms P] and had to be restrained by another Laing O'Rourke employee. … 116 Based on these unexplained changes, which removed references to what the primary judge considered to be a "fair reflection of the behaviour [Mr and Ms Pointon], in the First, Second, and Third Mr/Ms P Accounts, complained Mr Haley had engaged in", the primary judge stated that he could not be satisfied that the object of the investigation Mr Curnow-Rose purported to carry out was to determine whether complaints the Pointons in fact made were to be substantiated, partially substantiated, or not substantiated: PJ [244]. 117 The primary judge then made the following findings at PJ [245]: There are two other aspects to Mr Curnow-Rose's description in the letter dated 6 July 2020 Mr Curnow-Rose sent to Mr Haley of the "Aggressive and inconsiderate Behaviour Allegations". (a) The first is that, to the extent it may be assumed by stating in the letter he sent to Mr Haley on 4 July 2020 that he would "provide [Mr Haley] with details of the Complaint and seek [Mr Haley's] response" once he met "with the Complainant to clarify any questions they may have about the Complaint", Mr Curnow-Rose in fact held an actual intention to provide to Mr Haley. It is difficult to see, however, that he held that intention after Mr Curnow-Rose had deleted from the draft of the letter he sent to Mr Haley on 6 July 2020 any reference to Mr Haley having "verbally threatened" Mr and Ms P, and the reference to Mr Haley having had to be restrained "by another" LOA employee. For this reason, and given LOA has not called Mr Curnow-Rose to give evidence, I am not prepared to assume that Mr Curnow-Rose intended to convey to Mr Haley the details of the complaint Mr and Ms P actually made. (b) Second, Mr Curnow-Rose's description of "Aggressive and inconsiderate Behaviour Allegations" contained in the letter Mr Curnow-Rose sent to Mr Haley on 6 July 2020 is entirely bereft of factual content. It does not identify the behaviour it is alleged Mr Haley engaged in which constituted the "[a]ggressive and inconsiderate" behaviour. This is relevant to assessing the responses Mr Haley made to the allegations, as Mr Curnow-Rose communicated them to Mr Haley, and in particular whether Mr Haley was dishonest. It may also be relevant to the extent LOA claims Mr Haley manifested a lack of candour in the course of Mr Curnow-Rose's purported investigation of Mr and Ms P's complaints. (Emphasis added). 118 Although LOR challenged the primary judge's conclusion that the investigation(s) conducted by it were not genuine, there was no specific challenge to these findings. E.11 Interviews on 8 July 2020 119 On 8 July 2020, Mr Curnow-Rose interviewed Mr Shane Neely (Quantity Surveyor for the Bushfire Project (South Region) and one of the Pambula Property Residents), Mr Haley and Mr Adam Neely (Assistant Quantity Surveyor and another of the Pambula Property Residents). (There is a reference at PJ [247] to Mr Shaun Boyle having been interviewed on 8 July 2020, however this appears to be an error. As recorded above, Mr Shaun Boyle was interviewed on the morning of 6 July 2020). E.11.1 Mr Shane Neely's account 120 Mr Shane Neely's account, as relevant, is set out at PJ [132] as follows: MCR — Can you take me through your recollection of the BBQ after approximately 11pm? SN — There was food and drink in kitchen, then karaoke in the living room, went into the sitting room to do karaoke. The owners arrived into the sitting room and aggressively grabbed remote out of Adam's hand. MCR — Can you go over that again? SN — During karaoke, the owners aggressively grabbed the remote out of Adam's hand. We were shocked, didn't know who they were at the time. Random people, I didn't know who they were. There was a verbal argument and we told them they can't come into house in that manger [sic] and tell us to leave. The argument lasted 5 minutes. MCR — What happened then? SN — Andrew Byrne took the owners outside of the house. The owner was aggressive. Once outside the verbal argument last 3 minutes. Telling them they can't barge into the house. Can't just barge in being aggressive. The owner grabbed Adam Neely by the tee-shirt in an aggressive manner. Andrew tried to calm down the situation with the owner. MCR — So Andrew Byrne had owners outside in the BBQ area. Who else was outside? SN — Andrew and the owners and the police. MCR — Can we go back a moment to the outside on the patio, you said the owner grabbed Adam? SN — Yes, Adam was standing tin [sic] the doorway and he grabbed him. MCR — What was he doing? SN — There was a verbal argument was still going once they were outside. Same thing being said over and over again. … MCR — Going back as you said to the verbal argument, can you please outline what was said and by whom? SN — The main argument, we felt that they couldn't just walk in aggressively and start shouting at people. From what I recall, we said you can't barge in, they said we can, we want everyone to leave and we can do what we want. I remember it being said over and over again. MCR — Can you give me a sense of the atmosphere at that time? SN — I'd say it was heated, it wasn't aggressive. It wasn't going to turn violence [sic] or aggression [sic] or no threats being made. MCR — Did you at any point start chanting at the owners of the house? SN — No MCR — Did you have direct conversation with the owner? SN — Very little contact with the owners . . . … MCR — Who was the main agitator from Laing O'Rourke? SN — No main agitator. It was the owners who were aggressive? Laing O'Rourke people trying to get them out of the house. No main agitator. MCR — Are you aware of previous request from owners to cease the party? SN — No first time when they came in. … MS — Can you explain some of the comments made by Laing O'Rourke employees when speaking with owners? SN — Andrew Byrne's was trying to calm them down and David Grierson tried to do the same. The remarks said from everyone was that they can't barge in like that. MS — What was the tone of language? SN — Some curse words said at the time, but can't recall exactly. (Emphasis added). E.11.2 Interview with Mr Haley on 8 July 2020 121 At 9:46 am on 8 July 2020, Mr Curnow-Rose interviewed Mr Haley. 122 At the commencement of the meeting, Mr Haley read from a statement that he had prepared (the 8 July Haley Statement). Extracts of the 8 July Haley Statement were recorded at PJ [156]. The full 8 July Haley Statement was as follows: I arrived at the property in Pambula on Thursday early evening (02 July 2020). It was dark. I was on the phone dealing with a client matter when I arrived at the property and did not take full cognisance of the property grounds or layout. I did notice that it was a large property at the end of a road and seemed to be in a very private location. I entered the split level property from the rear and assumed the building was all one residence; there was nothing to suggest otherwise… I was not aware, until after the incidents occurred, that the property was actually split in to two residences (one upstairs and one downstairs) and neither was it apparent. We were there to recognise the achievement of a significant milestone by the team in the south who had over delivered against their June milestone to submit the progress claim at $58m. The team achieved $65m. This achievement was significant in the context of the commercial strategy to protect the financial position on the project… I had no involvement in the arrangements for the evening which were fully taken care of by the residents (Andy Byrne, Adam Neely, Shane Neely, Shaun Boyle and Jamie Boyle). As I understood it, we were in a private location to celebrate success with the team and this was a safe place to relax and enjoy the evening. We had a similar event the previous month in Batemans Bay which was a great success. I had no concerns about the evening which was fun, good natured and fully in control. This event was no different to the previous month. The evening was coming to an end around midnight and the process of shutting down the event commenced. I discovered there were no taxis in that location, something that had not occurred to me earlier; during previous visits to Batemans Bay this was never an issue. Nisham was designated driver and was taking the attendees in groups of four due to the person limit in the car. These are 25-30 minute round trips to the accommodation in Merimbula. The mood of the night changed significantly at around 12:30 when an Intruder, who was completely unknown to me, entered the property. I was stood at the head of the sofa when the man came up from behind me on my left, barged past me, knocking me to the side with his arm. I was stunned and in shock. I had no idea who the individual was and my initial concern was that he was a random attacker who was there to cause harm; I did worry that he may be carrying a weapon. He was red in the face and very angry. The man wasn't fully coherent and his behaviour seemed very erratic; I couldn't believe what was happening. Fearful of being attacked again, I stepped back out of arms reach. The man proceeded towards Adam Neely, who was sat on the sofa end near to where I was stood, and grabbed the remote from Adam's hand. There was a verbal exchange between the two and it became apparent to me that the two individuals knew each other. There was a commotion with the group who were saying things like he had no right to be in the property and should leave. The man was very angry making statements like it was his house, he could do what he wants and he would throw us all out. At this point I realised that he might be the owner. He was very aggressive towards the group and his behaviour and demeanour were intimidating. I was at the back of the commotion and only saw the intruder. I didn't notice anyone with the intruder and at no point did I come in to contact with the intruder's wife, who has jointly made the complaint, to the extent that I could not even tell you what she looks like. I remained close by as I was concerned the man would attack someone in the group but far enough away that I couldn't be attacked; something I did fear could happen. From my part, I contributed to the commotion by saying things like you are out of order and you need to leave. I felt it was necessary to speak up for myself and others in the group, who I believed were in danger. I was still a bit startled and in disbelief at what was happening. Andy managed to convince the intruder to go outside in an attempt to calm him down. I didn't feel it was necessary to go outside so I remained inside and was at least 15-20 yards from the intruder, with the bi-fold doors also providing a physical barrier. There was further commotion outside between the group and the intruder. I am unsure what was said and what happened due to being inside. I approached the door to see what was happening and Dave Grierson shepherded me back inside. Dave closed the door and asked me to leave Andy to calm down the intruder. It was only at this point, when we were inside talking with the group, that it was revealed to me that there was another property within the building which was occupied by another resident; a relative of the intruder. I was not aware there was another resident prior to the commotion. Up until this point it was also my understanding that the intruder who entered the property was merely dissatisfied that an event was being held. It became apparent from the group that this was a noise complaint, which was the first time I had been made aware. It was also raised in the discussion that Adam Neely had been grabbed by the intruder in the commotion outside. I did not witness this event. Andy returned inside the property and advised that the police had been called and were on their way. I continued to remain inside the property until the police arrived. The police arrived and spoke to Andy Byrne outside. The police officers took no action, and did not even speak to me. If my behaviour was in any way aggressive, deplorable and intimidating, as alleged by the complainants, then this would have been dealt with by the police officers at the scene. I spoke to Andy in the morning to understand whether there was any action I needed to take following the events of the previous night. Andy informed that he had been in contact with the owner to offer his apologies for the noise and planned to call round later in the day with a token gift and an offer the walk the owner's dog (something Andy has done in the past). Andy had dealt with the interface the previous evening and had successfully calmed down the intruder, so seemed best place to reach out. Following the events on 02 July 2020, my wife (Shaunna Haley) noticed a bruise on the left side of my lower back (picture evidence will be provided). These physical injuries were caused by the Intruder's elbow and arm when he barged past me during the prior mentioned incident. I am appalled to have received these physical injuries, which were completely unjustified, and feel I have been violated. (Emphasis and additional emphasis added). 123 Mr Haley concluded the 8 July Haley Statement as follows (PJ [157]): In conclusion, I completely refute the allegations of aggressive, intimidating, deplorable and inconsiderate behaviour on the following basis: * I was not aware of the second residential property and that there was another resident within the building until after the incident had occurred; * It is noted that the resident in the second property has not made any allegations; * The intruder entered the property without permission being verbally and physically aggressive; * I was not intimidating and my behaviour was neither deplorable or aggressive; * I consider that my behaviour was totally proportionate to the unwanted physical harm I received from the intruder, the threats he made to the group and the risk posed to our safety and welfare; * I was not aware that the intruder was the property owner until there was an exchange between the group and the intruder; * I was not aware of any noise complaints that had been made and, during the commotion, understood that the intruder's issue related to the taking place of the event; and * The police attended and if my behaviour was in any way aggressive, intimidating, deplorable or inconsiderate they would have taken action at the scene - no action was taken and they did not even speak with me. I am still shocked that these allegations have been brought against me. I have worked tirelessly on the Bushfire recovery project sprinting for 20 plus weeks, in many cases working 7 days per week and long hours, to drive performance and protect the interests of Laing O'Rourke. The allegations made, and the grounds for my suspension, are untrue and I urge Laing O'Rourke to lift this suspension and let me get back to doing my job at this critical stage of the project. (Emphasis and additional emphasis added). 124 Mr Curnow-Rose then asked Mr Haley some limited questions. Relevantly, those questions and responses included the following (PJ [158]): MCR - Reflecting on the night itself. Can you explain the atmosphere in the house when the owners came into the house? TH - What do you mean by the atmosphere? MCR - The confrontation. TH – Don't think I can comment, only how I felt. MCR - At any point did you address the owners. TH – That's covered in my statement. (Emphasis added). 125 In the proceedings below, Mr Haley was cross-examined about the answer he gave to Mr Curnow-Rose's question as to whether he had at any point "address[ed] the owners". The cross-examiner put to Mr Haley that his response (that that subject matter was "covered in my statement") was not honest. Mr Haley answered this question by saying that the record of interview of what he said to Mr Curnow-Rose on 8 July 2020 was not a true record, and then he said he did not recall the question being asked, and he did not recall the answer he gave. Later, Mr Haley gave the following evidence (PJ [159]): And do you accept that it was not honest of you not to reveal that information in the interview?---No. I couldn't recall that particular part of the incident, and I recalled and recorded as much as I could remember about the incident to Murray Curnow-Rose, and it was only on receipt of the recording and it being played at sufficient volume — I mean, I still can't hear all of the words, but we've dealt with that — that that was reminded to what — thinking of the right word — but I didn't recall, at the point I made this statement, that part of the incident, and I still don't recall that part of the incident, Mr Jedrzejczyk. I see. So I just want to make sure I'm understanding correctly. Your evidence is that at the time of this interview on 8 July 2020, you could not recall that you had said the offensive words to [Mr and Ms P]?---Yes. And you say that's a reason why you didn't refer to it in the interview; is that correct?---Yes. (Emphasis added). 126 LOR submitted to the primary judge that Mr Haley's evidence as to these matters should be rejected. LOR also submitted that Mr Haley's responses to Mr Curnow-Rose, and at trial, were intentionally dishonest. The primary judge rejected both contentions including on the fundamental premises set out at PJ [160]-[165]. These findings are challenged by LOR. One of the bases upon which LOR challenges the primary judge's findings is that Mr Haley's account as contained in the 8 July Haley Statement was detailed in many respects, but did not address the fact that Mr Haley had uttered the Offensive Words. In substance, it was submitted in the proceedings below and on appeal that Mr Haley had intentionally failed to disclose to LOR that he had uttered the Offensive Words. 127 For the reasons set out below, I reject these challenges. It is convenient that I make some observations at the present juncture. First, in the account that he gave in the 8 July Haley Statement, Mr Haley admitted that there was a "commotion" between those who had attended the gathering and Mr and Ms Pointon. Second, Mr Haley had admitted that for his part, he "contributed to the commotion by saying things like you are out of order and you need to leave. I felt it was necessary to speak up for myself and others in the group, who I believed were in danger. I was still a bit startled and in disbelief at what was happening". Third, he had also admitted that there was a further commotion outside and that when he made an effort to go outside, Mr Grierson had shepherded him back inside. Fourth, true it is that Mr Haley did not admit in the 8 July Haley Statement or during the interview with Mr Curnow-Rose that he had used profanities or uttered them towards the Pointons, but equally that was not put to him at the time. That he should have disclosed these matters even if he was not asked about them assumes a premise that he could recall precisely what he had said. Fifth, by the time of the interview with Mr Haley, LOR and, specifically, Mr Curnow-Rose, were in possession not only of the Pointons' allegations that Mr Haley had said very specific words to them and threatened them, but also the Audio Recording. Sixth, despite being in possession of very specific allegations made against Mr Haley and the Audio Recording, the entirety of the questions asked by Mr Curnow-Rose of Mr Haley at the 8 July Meeting were as follows: MCR - thank you to for your statement. Please submit to Michelle and myself as part of investigation. As we spoke on Saturday and Monday, I would like the recorded call to be sent through. TH - I'll send through with picture evidence. MCR - That was a full statement there, lot of things to unpack. We may come back with additional questions. MCR - At the moment, we have other questions, not about the incident but form part of the investigation. MCR - I sent you a series of letters, do you understand the letters that clearly outline process and privacy? TH - Yep MCR - Do you recall that I requested that you were not to have any contact and discussion with anyone associated with house or evening? TH - Yes MCR - Have you spoken with Andy after our conversation on Friday evening? TH - No MCR - Did you request that Andy speak with owners on your behalf the situation? TH - No MCR - Did you speak to Andy about children and school? TH - No MCR - Did you request anyone to speak on your behalf with Andy? TH - No MCR - Have you discussed the situation and event with anyone associated with the investigation? TH - No MCR - Have you requested anyone to act on your behalf to discuss with anyone associated with the incident or investigation? TH - No MCR - Are you aware that Andy Byrne approached the complaints on your behalf to arrange a conversation with you and wife, regarding schooling and remediation of the investigation TH - No MCR - The evening was a Laing O'Rourke staff event to celebrate a commercial milestone. The house was rented on behalf Laing O'Rourke for Laing O'Rourke employees associated with the Bushfire Project TH - Wasn't aware of that but now understand that was correct. MCR - The Letter refers to global code of conduct and refers to the travel policy and your letter of employment and how we act and behave in communities we work in. TH - Yep MCR - Reflecting on the night itself. Can you explain the atmosphere in the house when the owners came into the house? TH - What do you mean by the atmosphere? MCR - The confrontation. TH - Don't think I can comment, only how I felt. MCR - At any point did you address the owners. TH - That's covered in my statement. MCR - As part of the investigation we will speak with everyone in house as part of the investigation to gather information. Michelle will supply copy of the statement for you. Any additional questions? TH - Plenty, but none relate to this call, so no. MCR - Michelle and myself are available for you to contact at any stage. The EAP available and you will remain stood down TH - Understood. MCR - We are compiling information, we are not the decision makers. This will go on for a few more days. Please continue to keep confidential,. TH - Of cause. MCR - Not speak to another party about investigation. TH - Understood MCR - Can you please send through your statement? TH - As long as I can update the recording, I'll send straight away. MCR - I have no more questions at this stage, may come back to you with additional questions. MCR - thank you for your time. (Emphasis added). 128 As I will return to below, I reject LOR's challenge to the primary judge's findings that Mr Haley was not being deliberately dishonest at the 8 July meeting. E.11.3 Mr Adam Neely's account 129 In his interview with Mr Curnow-Rose on 8 July 2020, Mr Adam Neely is recorded as giving the following information (PJ [166]): MCR - Please take me through recollection of last Thursday evening. AN - Basically we had a BBQ, after that went into the in sitting room for karaoke. Everyone had a go. It was my turn and when I was up signing, I was interrupted by [Mr P] and [Ms P] who grabbed the remote out of hand and turned the tv off and told everyone to get out. Someone started saying we were renting the house and they can't be aggressively barging in. [Mr P] was heated and the back and forth us telling u that they could do what they want. Andy got them outside. I was speaking to [Ms P], and said when we first meet she said it was ok to be noisy. Then [Mr P] grabbed me by the tee-shirt and said not to speak to his wife like that. That was basically it. Police arrived, they were happy and left. MCR - Few points, just to confirm. You were signing karaoke and who grabbed remote off you. [Mr P] or [Ms P]? AN - I think it was [Ms P]. MCR - Explain what happened for me? AN - Myself and Tom, me one side, Tom on the other. They went pass Tom and then onto me. No one else apart from Andy know who they were. MCR – [Mr P] walked past Tom and grabbed the remote? AN - Came past Tom, I had the remote and they grabbed it and turned the tv off. MCR - Where were you and Tom? AN - Next to each other MCR - so it's big room? AN - Yes. MCR - Was Tom, 1 metre or 2 metres away from you? AN - 70 inch tv. We were at opposite sides of it, fair distance. MCR - And what happened? AN – [Mr P] and [Ms P] walked past, grabbed it out of my hand and starting telling everyone to get out. MCR - You said [Mr P] grabbed by the shirt. Is that correct? AN - Andy took them outside, I said to [Ms P] she told us we could make noise to do but not on the entertaining area outside, which we did. He was fairly heated and then grabbed me. We were standing at the doorway MCR - That is quiet an escalation, can you frame the atmosphere? AN - Not bad, pretty tame. They came in aggressively, very heated, they were being aggressive. What we were saying wasn't aggressive, we were told we could have BBQ. MCR - Were you talking to [Ms P] outside? AN - Yeah on the way out, he grabbed me near the door. MCR - Did you go outside with them? AN - I was at the doorway, stayed inside. MCR - What were you saying in the doorway? AN - Told her we could have BBQ. [Ms P] was happy with that. All that was said. And that we rented the house and you can't come in there. That's all. MCR - And your brother Shane Neely. Are you aware Shane is stood down, suspended on pay? Do you understand that? AN - No MCR - Have you spoken to him? AN - No, only Andy and we spoke about work. MCR - With Shane being stood down, could we have yourself and Shane incorrect? AN - I wouldn't think so. MCR - There are a few cross over that we are experiencing. AN - Neither of us said anything aggressive. MCR - Once police showed up? AN - Andy spoke with them, happy not too noisy, they left happy. That was it. MCR - Was there any swearing and crud language? AN - Not from my behalf. Didn't hear anything. Might have been, not saying there wasn't. Nothing threatening. (Emphasis added). E.12 Telephone discussion with the Pointons on 9 July 2020 130 On the morning of 9 July 2020, Mr Curnow-Rose had a telephone conversation with the Pointons. The primary judge reproduced the record of this call in full at PJ [167]: [Ms P] returned MCR's phone call at 9:44am. [Mr P] was in the background. MCR — Thank you for the opportunity to talk again. I want to confirm and clarify the situation and go through some additional question and give you the right of reply. MCR — This isn't a legal investigation, only Laing O'Rourke internal investigation but there has been some allegation raised during the investigation. I would like to talk through these with you. Is that ok? [Ms P] — We want this to be over. MCR — I understand and appreciate e any information you can give me. MCR — We have a few questions to understand if [Mr P] was involved in an altercation. [Ms P]— Hell no. He is a passive person and never been into a fight in his life . [Mr P] was in the background of the conversation. MCR — Thank you [Mr P] for being available. MCR — There is an allegation that [Mr P] shoved someone in the house [Ms P] — There is a question, did you shove someone? [Ms P] — He did, because he was surrounded by 4–5 staff. [Mr P]— I shoved, the bald headed guy. He was right in my face. He was very aggressive, and in my face it was self-defence. I couldn't see my wife and I was concerned for her safety. MCR — Can you explain to me who grabbed the remote? [Ms P] — I grabbed it MCR — Could you have been mistaken between Adam and Shane and who you grabbed the remote off? [Ms P] — I can can't recall MCR — Was there 1 or 2 people that had the remote. [Ms P] — 1 person, 1 remote grabbed it and stopped sound . MCR — Where was Shane standing, was he in the far side of the 70in TV? [Ms P] — Shane was on the closest side of the tv. We didn't have to walk past anyone. MCR — Said you didn't pass a Laing O'Rourke person? Tom was standing there. She said not he was not there, that she recalls in the position he was saying. [Ms P] — We were very scared, I was fearful. It was very aggressive. [Ms P]— Tom was aggressive, 4–5 metres away and was held back from tall and slight person. [Ms P] — There is only one remote to turn off the tv off, which shut down sound system [Ms P] — [Mr P] did not grab anyone outside, he grabbed someone inside and it was part of the same incident when we were surrounded. [Mr P] pushed at arm's length to get out of space so they could get out of his space. [Ms P] — We walked outside all surround by the guys. Didn't touch anyone on back deck [Ms P] — Shaun is an obnoxious and aggressive person. Hopefully the guys are different when not full of alcohol, Andy was always polite throughout the event. [Ms P] — Through the event we only thought of our mother [Mr P's mother's]. [Ms P] — Everyone was aware not party. [Ms P] — [Mr P's mother's] lives at the front of the house, they were at the front making noise. They could have sat at the back of the house and had a conversation, but this wasn't that the case. E.13 Letter to Mr Haley dated 9 July 2020 131 On 9 July 2020, Mr Curnow-Rose sent a letter to Mr Haley that had significance to LOR's case (9 July Letter). The 9 July Letter opened with the statement that "an investigation is underway in relation to your alleged conduct… in the early morning of Friday, 3 July 2020 arising from a complaint made by [Ms and Mr Pointon]": PJ [265]. The letter then identified the allegations that comprised "the complaint" as follows: That on Friday, 3 July 2020, at around 1am in the morning, while at a social gathering at the River Mouth Beach House with colleagues, you acted in an aggressive, inconsiderate deplorable and intimidating manner towards the Complainants. (Emphasis added). 132 The letter then indicated that following a review of the responses received from Mr Haley and other information obtained during the investigation, certain contradictory evidence had been identified. The letter stated: Contradictory evidence We have reviewed your witness statement and other information obtained during the investigation process and have identified some inconsistencies and contradictions between different versions of events in relation to key factual matters. These are set out below and you are required to respond to each of the matters highlighted. 133 The letter then proceeded to set out seven "matters" that were said to have amounted to contradictory evidence. The primary judge set these matters out and addressed each of them at PJ [269]-[289]. To the extent that these matters are relevant to LOR's challenge to the finding that Mr Haley did not engage in serious misconduct, I have addressed them below in Part G.2.2. E.14 Second interview with Mr Byrne on 13 July 2020 134 Mr Curnow-Rose conducted a second interview with Mr Byrne on the morning of 13 July 2020 in which he asked Mr Byrne questions about the statement he had previously given. A record of the interview was extracted by the primary judge at PJ [168] as follows: MCR - Apologies were made (by SMS) the next morning talking about unacceptable conduct. What was unacceptable in several ways? AB - The whole thing. What I was getting at was the behaviour on both sides. Apologises to get out of the way. Spoke with . . . and apologised to try to nip it in butt. Not apologising for aggressive behaviour, apologising for what had happened. To be honest, I though the apology, may have made them realised that it wasn't that bad. I still don't get why got to this level. MCR - In your statement, you stated that both [Mr and Ms P] forcibly removed remotes from people. Their view is there was only one remote which Adam was holding when [Ms P] took it from him. Do you stand by that version of events? AB - Yeah I can't tell you exactly who they took it off, had remote on them using as microphone, not 110% sure, that's why I haven't written it in my statement. MCR - One or two people? AB - Not sure, definitely one, could be two. MCR - in your statement you state the "only act of aggression was [Mr P]". AB - Yes. MCR - Do you think there was any other aggressive conduct? Physical? Nonphysical? Verbal? AB - There were verbal exchanges. I don't believe we were aggressive, from our side, Laing O'Rourke's side. It was a verbal argument "get out, you shouldn't be here". It wasn't aggressive. Only proper aggressor was [Mr P] grabbing Adam. You may have a different view, but that's what I believe. MCR - Was there swearing or abuse towards [Ms and Mr P]? AB - Yeah, there was swear words, I don't know whether it was abusive. My back was turned and I don't know who said what. It was along lines of my statement, I can't remember verbatim. Don't think I heard aggressive words. I don't consider swear words aggressive. MCR - You state that your focus was calming the residences down where you saw the aggression. Is that correct? AB - Yeah in particular with [Mr P] MCR - You state there was an argument. What was the argument about? Who participated in it? AB - As in the general argument, or one particular? Inside or outside? MCR - Both. Let's start with inside. AB – [Mr and Ms P] were saying get out immediately and the other group was saying you can't do this. I'm not going to remember verbatim what was said and by who. It was along the lines of "you get out, you can't stay here". No more than that from what I heard. 135 Mr Byrne was then played the Audio Recording and asked whether he wanted to make any changes to his statement, to which he said (PJ [169]): I don't think any of that was aggression. It's a 5 minute voice recording at the end. A few things said, not aggression, from my point of view. If anything the recording reinforces what I said. 136 Mr Byrne was asked whether he could identify who said certain things on the recording. He was then asked why he told Mr and Ms Pointon that "we F*** this up here and I accept that". The interview continued as follows (PJ [170]): MCR - . . . . Why did you said that? AB - I'm saying that to calm them down, you are taking that out of context. I was trying to calm both parties. If they recorded 5 minutes before that it would have shown something different. I don't think it's fair they have taken this recording, I hadn't given permission. Bang out of order if you ask me. Completely out of context. I was in the middle trying to calm everyone down. MCR - So you maintain there is consistently between your statement and the version of events you just heard? AB - My statement, yeah. The argument was along the lines of get out, swear words from what played. Exactly what I said in my statement, along those lines. E.15 Second interview with Mr Grierson on 14 July 2020 137 On the afternoon of 14 July 2020, Mr Curnow-Rose conducted a second interview with Mr Grierson, which is relevantly set out at PJ [171]. The purpose of this interview appears to have been directed at identifying the voices heard on the Audio Recording. It is apparent from the record of this interview that Mr Grierson had to listen to the recording on at least two occasions to identify some of the persons recorded on the Audio Recording and, in particular, only identified Mr Haley as having said the Offensive Words after he was told by Mr Curnow-Rose to go to the "1:00" mark and "you'll hear it just then". 138 Relevantly, Mr Grierson made the following observations: … DG - The voice that said "old man and old lady", that was Tom [Haley] if I recall. … MCR - If you go to 1:00 you'll hear it just then. DG - played the voice recording DG - At the 1 minute mark it is Shane Neely saying "come we having a bit of a laugh, having a crack." The person in the background saying "c u next Tuesday" is obviously Tom [Haley]. MCR - Thank you. DG - After that he says go home old man old women that is Tom [Haley] … (Emphasis added). 139 The primary judge recorded the balance of the account given by Mr Grierson as follows at PJ [172]-[173]: A little later Mr Curnow-Rose is recorded as stating that "[w]e have also established [Mr P] grabbed Adam [Neely]", and that Mr Adam Neely said that Mr P had grabbed Mr Adam Neely by the shirt, and said not to speak to his wife like that. The following was then said (emphasis added, and errors in original): MCR . . . . Did you witness that? DG — I did. I'm sure that's when [Mr P] went to grab him and I put myself between them. MCR — The husband [Mr P], for a husband to get that riled up to grab someone by the shirt, by the arm. Did Adam say or do something to rile him up? DG — No I don't know mate. Listening to the video there are so many people talking at one time. MCR — Do you remember [Mr P] speaking at all? DG — I spoke to him because I was there. I can't recall. I can remember him saying it's my house. MCR— But it didn't stand out? DG — Not in my eyes. MCR — Where you there the entire time? DG — Yeah. MCR — He didn't stand out to much, he wasn't saying that much then? I'm not trying to put wording into your mouth, just trying to figure it out. In the house where you part of the conversation [Mr P] was having or saying? DG — Not really, no. More interested in what our lot was saying, trying to get them to be quiet. Finally, Mr Curnow-Rose referred to Mr Grierson's having previously stated that Mr Grierson "had to hold people back", and asked Mr Grierson whether that was correct. The following was then said (emphasis added, and errors in original): DG — Yeah of you can imagine people getting around the owners and I can remember saying to everyone to move back when we were in the kitchen area. MCR— Everyone crowded around? DG— Not crowed around. Two people with 8 people standing in front of them. Said to Shane [Neely] I'll come to you in a minute, understand point of view E.16 First conversation between Mr Haley and Mr McDevitt 140 On 11 July 2020, Mr Curnow-Rose had sent an email to Mr Haley stating that, as "we progress to the second week of the investigation, we would like to offer the opportunity for you to reach out to a [LOR] employee as a confidential support person". Ultimately, Mr Haley nominated Mr Kevin McDevitt, who was an executive engaged by LOR or one of its related entities in the United Kingdom. Mr McDevitt had been Mr Haley's Commercial Director in Hong Kong and had also worked in the Australian market. 141 Mr Haley said that he had spoken to Mr McDevitt on 14 July 2020 and produced a handwritten note to that effect: PJ [311]. The primary judge found that a conversation occurred to the effect recorded in the note and essentially found that this conversation prompted the Reflection Email referred to below: PJ [312]. 142 These findings are not challenged. E.17 Mr Haley's letter dated 14 July 2020 responding to the 9 July Letter 143 At 5:21 pm on 14 July 2020, Mr Haley sent a letter to Mr Curnow-Rose which responded to the 9 July Letter (Response to the 9 July Letter). In that letter, Mr Haley took issue with the legality of the Audio Recording and provided responses to the seven contradictory matters that had been raised in the 9 July Letter. 144 In the proceedings below, and on appeal, LOR focussed upon aspects of Mr Haley's response in support of its contention that Mr Haley knowingly made false statements and was deliberately dishonest, which it claimed amounted to serious misconduct warranting summary termination. Specifically, LOR pointed out that Mr Haley had asserted that Mr and Ms Pointon were seeking retribution for their grievance at the occupants of the Pambula Property and referred to their allegations as being "false and malicious" and having had a shattering impact on him and his family: PJ [317]. Mr Haley also asserted that he had been "subjected to a physical assault" by Mr Pointon and received physical injuries: PJ [318]. He elsewhere stated that the Pointons were seeking to protect their financial interests and seeking to avoid criminal charge for the physical assault on himself and Mr Adam Neely: PJ [320]. In relation to the allegation that he had uttered the Offensive Words, Mr Haley responded that "[t]he individual noted in the illegal recording at 1 minute 24 seconds is neither aggressive, intimidating or threatening" and that the tone of the voice, comparable with others recorded, indicates that the "individual stood some distance from where the listening device was located": PJ [319]. 145 LOR contended that Mr Haley was knowingly dishonest by not admitting that he was the "individual" and by referring to the person in that way. It made other contentions as to the contents of the Response to the 9 July Letter as demonstrating that Mr Haley had provided knowingly false statements. 146 The primary judge dealt with the Response to the 9 July Letter at PJ [313]ff. I deal below with those aspects of the findings made by the primary judge in relation to the Response to the 9 July Letter and whether Mr Haley had knowingly made false statements and was deliberately dishonest. E.18 Ms Haley complains on Mr Haley's behalf about the investigation 147 At 11:36 pm on 15 July 2020, Mr Haley's wife, Ms Shaunna Haley, sent an email to Ms Sarah Boulter, a Human Capital Business Partner at LOR, copied to Mr Haley and Mr Chatwin. Ms Haley stated that she and Mr Haley wished to raise a number of issues that were being "overlooked and ignored". These issues are set out at PJ [383]-[387]. 148 Ms Haley sent a follow-up email to Ms Boulter at 4:16 pm on 16 July 2020: PJ [388]. Ms Boulter responded by email at 6:07 pm on 17 July 2020, stating (PJ [389]): You can expect a response to matters raised in your emails in the near future. I cannot give an exact date. It may not be me that responds to your emails or it may be I am able to respond to some but not all parts of your email. Some of the matters you have raised are related to the investigation process. 149 Ms Haley responded at 4:25 pm on 17 July 2020 stating, relevantly, that "[t]his is a formal complaint I am raising and should be investigated, not responded too [sic]. This a [sic] formal complaint that should run separate to Tom's investigation… I look forward to this being followed up in accordance with the Group Investigation Guidelines…": PJ [390]. 150 At 6:39 pm on 17 July 2020, Ms Boulter forwarded Ms Haley's email to Mr Bates and Mr Daniel Sleeman (Senior Employee and Industrial Relations Lead). 151 I was taken to little evidence as to how this complaint was dealt with by LOR. My attention was drawn to an email to Mr Haley from Ms Fraser on 28 July 2020 (after Mr Haley's employment had been terminated) titled "Without Prejudice – Repatriation and Finalisation of Employment". That email advised that "I have reviewed the investigation and disciplinary process in relation to your conduct and I am comfortable that both were carried out in accordance with the Group Investigation Guidelines and the Misconduct Management Guidelines". 152 Mr Haley submitted that this was a "nominal and uninformative reply" and did not establish that this complaint was investigated in accordance with LOR's investigation guidelines, nor that the investigation and disciplinary process more broadly was carried out in accordance with those guidelines. 153 Mr Haley also drew my attention to an email sent by Mr Chatwin to another LOR staff member after the termination that said that Mr Haley had "left the business following an incident relating to the code of conduct that we as a business could not align with Tom on in terms of his view of the incident and approach to the investigation of the incident". It is unclear to me whether this evidence was drawn to the attention of the primary judge. His Honour appears not to have dealt with it because his Honour rejected LOR's case on adverse action on other grounds. E.19 Finalisation of the investigation 154 As noted above and dealt with in detail in the primary judgment, the primary judge concluded that there were in fact two "final" Investigation Reports. The first investigation report, described by the primary judge as the "First Purported Investigation Report", was found to have been finalised and submitted (to Mr Bates and Mr Sleeman) on 8 July 2020: PJ [248]. A submission by LOR that the First Purported Investigation Report was in fact a draft of what ultimately became the "Second Purported Investigation Report", was rejected: PJ [250]-[251]. Whilst I have some difficulty following the primary judge's reasoning on this point, the finding was not directly challenged and, in the final analysis, nothing much turns on it. 155 In any event, as is clear from the events already summarised above and which continue below, on and after 9 July, there continued a process involving Mr Curnow-Rose, Mr Sleeman and Mr Bates which led to the completion of the Second Purported Investigation Report, which I have simply referred to as the Investigation Report. A full account of the preparation of the Investigation Report is set out at PJ [334]-[375], but I refer to the following salient events. 156 On the evening of 16 July 2020, Mr Curnow-Rose sent the (then) draft version of the Investigation Report to Mr Chatwin and Mr Cashin (Director, Major Projects): PJ [360]. On the morning of 17 July 2020, Mr Chatwin replied to Mr Curnow-Rose and Mr Cashin as follows (PJ [362]): Thanks for this, I have read the report twice now and am going to read it again just to form my recommendations. I won't comment on any conclusions yet, other than the lack of acknowledgement from the Respondents and compassion/ sympathy/ remorse is not what you would have expected for such a terrible incident, the recording is just terrible in terms of what was said and the way the individuals were just making the situation worse rather than calming it down (noting Dave and Andy were trying to calm it down but clearly very drunk). A question I do have that I would like to understand more is are there any more notes from people's observations of what happened when the Complainants entered the property — it's quite sketchy and I don't feel I have a good enough picture of what actually happened, were they any view points/ observations from the other attendees? I can see Neely, Neely, Boyle, Hayley, Byrne have all pivoted in their statements from being apologetic to changing to blaming the Complainants, what have the others said? The response from them all is terrible, but I'd like to know more if we have anything on the lead up to the point where they are outside. The Complainants have clearly gone in and done things that they shouldn't to a group of very drunk individuals, and the individuals have responded terribly rather than trying to calm it down, but the complainants will have contributed to a change in dynamic of the behaviour of the individuals. I feel like I need to understand this better. My point is this is where the three respondents will point to the most that the situation was inflamed and they reacted badly. 157 Mr Curnow-Rose responded by noting that he understood "the need to frame the environment at the point of time when the Complainants enter the [Pambula Property] at 1:05am, however due [to] the attendees": PJ [363]. 158 At 1:26 pm on 17 July 2020 Mr Curnow-Rose sent an email to Mr Chatwin and Mr Cashin, copied to Mr Simon Barrett (Head of Legal, Contracts (Core and Specialist Businesses)) and Mr Bates, attaching the final version of the Investigation Report. It recorded the following (PJ [365]): It is alleged that Tom Haley acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Complainants, [Mr and Ms P]. This allegation is substantiated. E.20 Second conversation between Mr Haley and Mr McDevitt on 18 July 2020 159 On 18 July 2020, Mr Haley spoke with Mr McDevitt by telephone in which he, amongst other things, conveyed that he felt he was being victimised and raised concerns about the investigation process including those recorded in the email sent by Ms Haley to Ms Boulter on 15 July 2020. Mr McDevitt then called Mr Haley back after having spoken to Mr Chatwin. Mr Haley's account of this conversation was as follows (PJ [392]): Kevin called me back at around 19:30 and told me he had called Simon Chatwin to relay my concerns; I did now [sic] know that Kevin would call Simon; Kevin told me not to pursue the complaints; Kevin told me to accept the allegations, apologise for them and express remorse; I said I would not admit to allegations which were not true; and Kevin said "Tom, just do it son". 160 As I will return to below, Mr Haley also gave evidence that the Reflection Email came about from a conversation with Mr McDevitt, who had spoken to Mr Chatwin, and said words to the effect "You have to say these things in order to keep your job": PJ [397]. E.21 Reflection Email 161 On the morning of 20 July 2020 Mr Haley sent an email to Mr Curnow-Rose, which came to be referred to as the "Reflection Email": PJ [395]. In it, Mr Haley stated: I have provided below a reflection on the events and lessons as noted in my email on 14 July 2020. I received an email on 15 July 2020 saying that the investigation was being finalised that day and a further email on 17 July 2020 saying that it is hoped the investigation is concluded on 20 July 2020. I hope that it isn't too late for this statement to be considered and would be grateful for its consideration in the decision making process . This acknowledgement is provided without prejudice to the statements already provided in response to the allegations made. This statement is issued confidentially for consideration by the investigating team and the decision makers . I wanted to acknowledge my role and responsibility as the most senior person at the event; something which, given the impact on business operations, I regret not acknowledging sooner. I recognise that it is an error of judgement on my part which has contributed to me being in this regretful situation and I would like to articulate the remorse I feel for the error of judgement I made and the lessons I will take from this experience. I now fully understand and appreciate that I am always on duty and that I have a responsibility to represent the business appropriately at all times. This responsibility is increased exponentially on a sensitive project like the bushfire recovery programme where we have set such high customer care standards in the communities where we have operated with outstanding business performance. I recognise that I have a responsibility to represent the business in those communities with conduct that is exemplary and my behaviour, as a leader on the project and in the business, needs to be well above the normal expected standards. I acknowledge that there was a momentary lapse in behaviour on the evening of 02 July 2020 which resulted in me falling short of the standards we have set on the project, the standards required by the business and the standards I expect of myself. In hindsight, I acknowledge that I was intoxicated to an extent which was not necessary or appropriate. Whilst this was proportionate to others in the group, I recognise that it did impair my judgement on that evening. This is out of character for me and I acknowledge that the events which occurred may have been avoided by exercising more control over my level of alcohol intake. In normal circumstances, I would lead by example to find a respectful resolution to any issues or complaints and there are multiple examples where I exemplify this on a daily basis. I recognise that my conduct in resolving the issues raised by the owners, regardless of how they were raised, fell well short of my normal standards and that I should, and could, have done more to diffuse the situation. I am embarrassed that I used offensive language in the vicinity of a member of the public and I acknowledge that this is not acceptable and it is not necessary to use offensive language in any context and under any circumstances. I should have taken more control over the arrangements for the evening to ensure that I was aware of any sensitive areas and that appropriate controls were implemented and adhered to by all at the event; this was a regretful oversight on my part. (Emphasis and additional emphasis added). 162 There was a deal of cross-examination about the contents of the Reflection Email (set out at PJ [396]-[418]). In the result, the primary judge made a finding that the reason why Mr Haley prepared and sent the Reflection Email was "to try and keep [his] job" and he did it on the basis of advice from Mr McDevitt as to what he should say to the person or persons who had the power to decide whether Mr Haley's employment would be terminated: PJ [404]. These findings are not challenged, but LOR challenges the finding at PJ [416] that the Reflection Email was "unfairly induced". E.22 Drafting of the Show Cause Letter 163 During the day and evening of 20 July 2020, several versions of a Show Cause Letter were prepared by Mr Sleeman, with input sought from Mr Cashin and Mr Bates: PJ [419]ff. 164 At 2:41pm, Mr Sleeman sent a draft of the letter to Mr Chatwin, Mr Cashin and Mr Bates to confirm particular details, which the primary judge referred to as the "Penultimate Draft Show Cause Letter": PJ [422]-[423]. This draft contained the following text: You did not listen to the concerns raised by [Mr and Ms P] regarding the house party. Nor did you try to proactively seek a satisfactory resolution to their concerns around noise and the presence of non-residents at the property, at 1:00 am in the morning. Instead, you abused them. . . . . As the most senior Laing O'Rourke employee at the house party, our expectation is that you might have taken steps to try to resolve the concerns between [Mr and Ms P] and attendees at the party. You certainly would not have made matters worse. Instead, you chose to abuse [Mr and Ms P] using foul and unacceptable language. . . . . Laing O'Rourke's preliminary view is that your employment with the Company should be terminated. Laing O'Rourke considers that this action is both reasonable and appropriate in the circumstances set out in this letter. (Emphasis added). 165 At 5:49pm, Mr Chatwin sent an email to Mr Sleeman, Mr Cashin and Mr Bates which attached an amended version of the letter with comments: PJ [425]. In his email, Mr Chatwin stated: Hi all, I have some comments on the letter attached marked in tracked changes, as this is coming from me and we are confirming this is a preliminary recommendation, I would like to re-state the disappointment in the recommendation section on Tom's conduct post the incident — would welcome your thoughts. Until I hear from Tom in the face to face and see his final response to this, I'm still not sure if I would be concluding termination as of today, so I'm not sure we should say that is our preliminary conclusion , I've put some notes, I think we should sign post that based on the investigation, Tom's conduct during the investigation, that there is a high probability of termination. There are a couple of uses of the term abuse which isn't a term alleged by the Complainants in the complaint, so I think we should avoid that term — I think it's unnecessary. We aren't testing if Tom has abused the Complainants. I'm free to chat through this evening. Also when signing off the letter it should be yours sincerely rather than yours faithfully. (Emphasis added). 166 One of the comments made by Mr Chatwin in relation to this version of the letter, was in relation to the statement that LOR's "preliminary view is that your employment with the Company should be terminated": PJ [431]. Mr Chatwin made the following comment: Is it possible to say that we are considering this or say there is a high probability that due to the above and Tom's conduct and unwillingness to confirm facts or apologise for actions during the investigation that we may terminate. I haven't concluded any discussions with Cathal yet that our view is to terminate. This is where if possible we could add in our disappointment on Tom's behaviour during the investigation, maybe this is where I state my own personal frustrations if the letter is to come from me. (Emphasis and additional emphasis added). 167 Mr Chatwin was cross-examined about this topic. It led to the primary judge concluding that he was not satisfied Mr Chatwin had endeavoured to disclose to the Court the full extent of his recollection of the discussions he had with Mr O'Rourke about whether to terminate Mr Haley's employment: PJ [437]. The primary judge further found that, in any event, even if Mr Chatwin had presented the full extent of his recollections, the evidence made clear that it was Mr O'Rourke who had the power to terminate Mr Haley's employment and Mr Chatwin's role was to inform Mr O'Rourke of Mr Chatwin's "decision" to give Mr O'Rourke "the opportunity to comment, respond, ask for more information, and as an MD, yes, he has got the right to potentially overturn my decision": PJ [438]. 168 The primary judge found that the effect of Mr Chatwin's evidence was that he understood it was within the power of Mr O'Rourke, not Mr Chatwin, to decide whether LOR should summarily dismiss Mr Haley from his employment and that Mr Chatwin's role did not extend beyond providing a recommendation to Mr O'Rourke: PJ [439]. 169 These findings are challenged by LOR and I will return in detail to these matters below. E.23 Final Show Cause Letter sent to Mr Chatwin 170 At 9:01 pm on 20 July 2020, Mr Sleeman sent an email to Mr Chatwin, Mr Cashin and Mr Bates attaching the "final letter with tracked changes from before accepted", noting that it "[j]ust needs to be signed, converted into PDF and sent". The primary judge inferred that the attachment was a draft of the Show Cause Letter in the form it came to be sent. At 8:35 am on 21 July 2020, the final Show Cause Letter was sent to Mr Haley by email: PJ [440]. 171 The Show Cause Letter stated that on 3 July 2020 Mr and Ms Pointon made a complaint, including against Mr Haley, that he had "engaged in aggressive, inconsiderate, deplorable and intimidating conduct towards them at the house". The Show Cause Letter stated that "the Investigator has made findings in relation to your alleged conduct" and that "Laing O'Rourke has considered the findings and considers it reasonable and appropriate to accept them": PJ [441]. The Show Cause Letter then stated that the purpose of the letter was to explain and outline the key findings of the investigation and set out the "proposed disciplinary action". The letter stated that the Investigation Report was privileged. It then stated (PJ [442]): Findings The allegations in the Complaint against you have been substantiated. That is, the Investigator has found on the evidence that you did act in an aggressive, inconsiderate, deplorable and intimidating manner towards [Mr and Ms P] at the house party on Friday, 3 July 2020. A summary of the allegations and the findings are set out below. Allegation Finding Reasoning During the investigation process a voice recording was provided to the Investigator. The voice recording captured discussions that took place in the early hours of Friday, 3 July 2020 between [Mr and Ms P] and attendees at the party. In the voice recording, the Investigator concludes that your voice can clearly be heard saying the following to [Mr and Ms P]. That the Respondent engaged in aggressive, inconsiderate, deplorable and intimidating conduct Substantiated "go home you fucking silly old cunt ... go home, old man, old lady". towards [Mr and Ms P] In analysing the evidence. the Investigator notes you did not admit and do not acknowledge that the voice heard in the recording making these comments to [Mr and Ms P] is yours** (see comment underneath this text box regarding development on Monday, 20 July 2020) The Investigator concludes there is no doubt the person making the above quoted comments to [Mr and Ms P] is the same person who in response to [Ms P's] question asking them to identify himself, confirms his name to be Tom. There were no other "Toms" at the party at the time and the person speaking could only have been you. In addition to the Investigator's own assessment that it was your voice that can be heard making the comments to [Mr and Ms P] (based on the fact the same person with the same voice identified himself as Tom to [Ms P]), the fact this was your voice in the recording who said "go home you fucking silly old cunt ... go home, old man, old lady" has been corroborated by one of your work colleagues interviewed as part of the investigation. In addition to the voice recording. the Investigator's findings that you engaged in aggressive, inconsiderate, deplorable and intimidating conduct towards [Mr and Ms P] was also supported by the following conduct engaged in by your colleague Andrew Byrne at the time of and after the incident. And another colleague, David Grierson after the incident. . . . . (Emphasis added, other than to "Substantiated"). 172 Later in the Show Cause Letter, the following was stated (PJ [443]): Proposed disciplinary action As noted in this letter, the allegations against you that you engaged in aggressive. inconsiderate, deplorable and intimidating conduct towards [Mr and Ms P] are substantiated. In particular. you made the following comment to [Mr and Ms P]: "go home you fucking silly old cunt ... go home, old man, old lady". Laing O'Rourke considers that this conduct is very serious. In Laing O'Rourke's view, it amounts to a breach of: * Laing O'Rourke's Global Code of Conduct (Code) - specifically, a breach of your obligation under Section 1 to treat members of the public and all other stakeholders with respect, and to listen to concerns raised and proactively seek a satisfactory resolution to any issues. That section reminds employees never to forget that Laing O'Rourke's reputation depends on how we interact with all stakeholders and to never forget that when carrying out our work, we are guests in a local community. * Laing O'Rourke's Travel Policy, which refers back to the Code when travelling for work. * A breach of your employment contract that requires you to act at all times in the best interests of the Company and also requires you to comply with Company polices including the Code. In addition to the above, Laing O'Rourke is concerned about your conduct on the evening in question and your approach to the investigation in the following ways. * As the most senior Laing O'Rourke employee at the house party, our expectation is that you might have taken steps to try to resolve the concerns between [Mr and Ms P] and attendees at the party. You certainly would not have engaged in the conduct that you did. * The voice recording is clear as to what you said to [Mr and Ms P], yet in the investigation process, you did not admit to any wrongdoing and denied all allegations. We are deeply concerned at this aspect of your conduct and we are concerned at your lack of candour and cooperation during the investigation process. Whilst we note your email to Murray Rose on Monday, 20 July 2020 where you appear to admit to using offensive language "in the vicinity" of [Mr and Ms P], you still do not appear to admit to making your comments to them as can so clear1y be heard on the voice recording. To be clear, we do not accept that you simply used offensive language in [Mr and Ms P's] vicinity. Your comments were directed at them. Serious misconduct Based on the investigation findings Laing O'Rourke considers your conduct amounts to serious misconduct that may warrant summary termination of your employment. Your contract of employment describes serious misconduct giving rise to termination of your employment without notice, to include among other things: * engaging in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment. * engaging in conduct that causes imminent and serious to risk to ... the reputation ... of the Company. In the Company's view your conduct reaches this threshold especially given the critical importance of community interaction and our reputation on the NSW Bushfires Clean-Up Project. You have severely damaged our trust and confidence in you as an employee, and in particular, as a senior employee in a leadership position. (Emphasis added, other than to headings). 173 The Show Cause Letter continued by informing Mr Haley he had an opportunity to respond (PJ [444]): Opportunity to respond Before making a final decision as to whether or not to terminate your employment on the grounds of serious misconduct, Laing O'Rourke would like to give you an opportunity to respond to our serious concerns and the investigation findings and to present any information that you consider may be relevant or helpful to Laing O'Rourke's decision. In relation to the email you sent Murray Rose on Monday, 20 July 2020 at 8:08am, this will be considered as part of this process and you may also wish to prepare a further document (which may or may not incorporate your email to Murray). You are invited to attend a meeting with me, Pat Cashin and a representative from Human Capital at 9am this Wednesday, 22 July 2020 at the North Sydney office to provide your response. I will attend the meeting in person and Pat Cashin will join us via Videoconference. Tom, to be clear, we are extremely disappointed in your conduct both during and after the incident and there is a very serious possibility your employment with Laing O'Rourke will be terminated. This meeting is your last opportunity to show cause as to why Laing O'Rourke should not terminate your employment and to satisfy us that you can regain our trust and confidence. You are welcome to bring a support person to the meeting to provide moral or emotional support, observe the proceedings and make notes if you wish. The support person is not permitted to talk for you and must not have been involved in the matter, other than as your support person during the investigation. Your support person may, for example, be a family member or friend if you wish. If you wish to have a support person, you will need to let me know who they are before the meeting. E.24 Show Cause Meeting on 22 July 2020 174 On 22 July 2020, Mr Haley attended a Show Cause Meeting with Mr Chatwin, Mr Cashin, Ms Byrne, and a support person: PJ [449]. In the appeal before me, Senior Counsel for LOR placed emphasis on particular parts of the transcript of the meeting as set out below. 175 At the opening of the meeting, Mr Haley stated: I would like to record my regret about using offensive language towards [Mr and Ms P], erm, I recognise that it is not acceptable and it not necessary to use offensive language in any context or in any circumstances, erm, I acknowledge fully the consequences this has had on the business, erm, and the number of people including family members and you guys and others who have been placed in a position that they really do not want to be in, erm, I know that I have done wrong, it was a misjudgement by me and I recognise that it is not an acceptable standard of behaviour, erm, I apologise for what I have said, I apologise to you for the impact to Laing O'Rourke and if you consider it appropriate then I am more than willing to apologise to the complainants as well for any offense I caused to them. (Emphasis added). 176 As in the proceedings below, it was submitted in the appeal that this amounted to an admission that Mr Haley had said the Offensive Words to Mr and Ms Pointon. To the same end, attention was also placed on Mr Haley's statement that: I didn't realise there was 2 properties and it just never even crossed my mind, erm, the initial exchange between Adam Neely and [Mr P] in the living room was the flash point, that should not have occurred. [Mr P] had pushed passed me, something which I have not used to justify the language I used and I will not use that to justify the language I used. I had no idea who he was or what was going on. I had never seen him, I didn't have a clue who he was, no idea why he was there, erm, and I admit to being in an initial state of shock when this occurred. I was in absolute disbelief, erm, I stayed out of the confrontation between Adam Neely and [Mr P], erm, I didn't get involved in the follow up exchange which occurred between the 2 outside the property, something which I now believe is the trigger of the listening device been activated. I do not condone confrontational behaviour displayed by members of the group, erm, but I do recognise that commenting towards the end in the way I did and using offensive language does not reflect this condemnation and really set a bad example to the others in the group. It was stupid, it was unnecessary and it was regrettable. I shouldn't have said it, it was out of character for me and it would not have occurred had I not been intoxicated to the level I was. I recognise, I recognise that the level of intoxication did impair my judgement on the evening. I was wrong to say it. I made one isolated remark, in an isolated incident which I fully acknowledge. (Emphasis and additional emphasis added). 177 After making some other comments as part of his statement, Mr Chatwin asked Mr Haley some questions. The primary judge recorded the relevant exchanges as follows (at PJ [178]-[186]): After Mr Haley gave his statement, Mr Chatwin said (emphasis added): [W]hen you look at some of the responses you initially gave to Murray [Curnow-Rose], the investigators, there was quite a bit of I didn't see [Ms P], I never spoke to her. I'm not going to go through the facts there are certain things I saw in there and in it was Mmm, erm, no remorse or sympathy or you know acknowledgment of their situation, Erm, it was very much and it might have been an initial reaction, a defensive reaction. I'm under attack here and I've been stood down. Whereas today you've got to the point where you are regretful, which is great, and where I personally think where things need to be but erm, what, can you just talk us through. Initially it seemed very defensive, quite a lot of, you didn't admit it was you on the recording initially. It was bit of a legal response, or very much a shut door and you can imagine the investigators feeling a bit like, your not engaging, your not, accepting of the facts. Somethings in there that are really quite clear that you are denying, erm and its not, its not, nothing is completely evidenced and its not unless you were there and experiencing it of course. There are certain things where I would have expected an earlier acknowledgment or an earlier reaction or an earlier more empathy or sympathy and probably more admittance of yes that's me on the recording, yep I said that, yep I did speak to [Ms P] from a distance. It took a long while to get to where you are today tom. I guess the question I've got is, is what is your reflections on that today, it's quite hard for us to see, that it's gone from denial to all the complainants fault to actually now I admit, I've got quite a bit wrong there, it took, it's taken a good couple of weeks to get to the way you are today. What's your reflections on that. Mr Haley accepted he was "deeply hurt to be suspended"; but he said the following (emphasis added): I followed the process that had been laid out, as it was described to me, it was a fact finding process and it didn't feel like a process where I could offer up any contrition or remorse. It was merely a fact finding process and my understanding rightly or wrongly that the contrition comes afterwards in discussion once the investigation is concluded. So that's what I understood, erm, I didn't say anything I wouldn't stand behind, erm, I, erm, the allegations made are serious, and they are an indictment on my reputation and erm. I've apologised fully for what I have said. But to be called aggressive and threatening and those kind of words, I erm, they are strong, strong adjectives relative to what I said. And I felt the need to defend my reputation because I have spent 17 years building my reputation, and I, I consider myself to be someone who has a huge amount of credibility, I conduct myself professionally and to see that written about me, erm, it it, and it just didn't meet with my understanding of what occurred on that evening. Erm. If the discussion, was about, if the letter was about use of offensive language and inappropriate behaviour acknowledged fully, get that, I shouldn't do that but to be cited as aggressive and threatening when that wasn't what I did and it wasn't me that did that, erm just felt hugely hurtful. … So that my was thought process, erm, I didn't see [Ms P] and I didn't and I feel, I won't go over the investigation but that exchange occurred in the dark. It occurred when she was in one corner of the garden in the dark and I was in the house at the door and I couldn't see her. I didn't see her in the property because of the number of people that were there, and its hurts me that, it hurt me as well that that my integrity was questioned by what appeared to the investigation team, or what they felt happened. And seemed to me that the evidence was being, the was evidence made to fit the allegations rather than the other way round. And that, that, that prompted a strong response from me, in terms of things, I am not been listened to. Mr Chatwin asked Mr Haley, "just to be clear", that Mr Haley did not believe he was "aggressive, inconsiderate, deplorable or intimidating". Mr Haley responded: the statement I made on the recording and my conduct on the evening, I don't believe, sorry, I wasn't those things and I, I erm, I don't want that the come, I am very concerned that then undermines the apology I have given and this has been a real difficult thing for me to wrestle with. Do I accept that I was aggressive and threatening or do I stand up and say, hang on one minute, I didn't do those things. I did those things that I regret and I apologise for them, erm, I acknowledge that my behaviour was inappropriate, I, I acknowledge that. I acknowledge that my language was offensive and I will apologise for it but I, I, I am struggling to acknowledge things that I don't believe, allegations that I do not believe reflect on me and my conduct in that evening and that's been a really difficult one for me to, to manage. Mr Chatwin said he was "struggling" with Mr Haley's stance because everyone who heard the audio recording was disagreeing with Mr Haley. Mr Chatwin then referred to there being "quite a lot of evidence that [Ms P] walked in and took the remote and you were there with Adam standing there", and Mr Chatwin asked how it was Mr Haley "didn't see her again", noting that Mr Chatwin was "really struggling with that". Mr Haley said the following (errors in original, and emphasis added): [T]here's no whiteboard is there, I could draw the room, erm in essence if that square is the room, the tv was here, I was stood here, Adam was stood over there and there's a group of people here in the middle, erm, [Mr P] came in behind me, erm, Adam, there was something that happened on the other side, Adam went to sit down, got up and started shouting at [Mr P], or they were exchanging views. They then confronted each other, he barged passed me, they were talking about the remote, erm so, I acknowledged that their exchange was aggressive, there was a confrontation between the two, erm there was talk of get out, I will throw you out, you've no right to be here, we can do what we want, I had no idea who he was. Erm, there was a group of people, the size of the room was, the size of the living was small, it was small, there was a lot of people in the living room, there was a lot going on, I, I was in absolute shock that some body had walked in and challenged the group. I had no idea who he was, no idea why he was there. My genuine first thought was that this is some nut case that had come round to stab someone, erm, you know, no idea what he was doing or why he was pissed off, no idea. Sorry I shouldn't use that word. I had no idea why he was angry, at all. Like in absolute, you can just imagine from your perspective, if you are in private function, safe place and all of a sudden some random bloke comes in and starts shouting the odds at everyone SC- Yep TH - and he nudges passed you, and then it all, there's a big commotion. I am at the back of the group. There are some big guys there, erm, I'm at the back of the group. I do not get involved in it and they get moved outside into the dark. There is another confrontation outside, which I wasn't involved in, in an argument and raised voices. Erm, that's the point at which the recording starts and Andy tells Adam to go inside and Adam says that they are both liars, that's when the recording starts. So there has been two incidents, there's been two incidents of aggression, erm, I've engaged in neither of them, erm. I've not been intimidating. I've not, I've not acted in a way that has imposed any threat to the people that had walked in, at all, despite the fact that I was pushed and, you know, an unreasonable person would respond to that unfavourably. I didn't. I stayed out of it, I, and what I did stupidly at the end was pipe up, tell them to go home, I used language that I shouldn't have done. I did it in a way that was, you guys been here has, it was causing a confrontation and it's causing aggression, you need to go. It was a stupid way of putting it and that, but that was where I was at. That's what I was thinking, erm and that's why when I see the words, excepting that, that one statement can be read as all them things I understand that, that I could read that, I listen to the recording and think good god, you know, exactly the same for you but having been there on the night, and, you know, I know what my conduct was and it wasn't those things. There were others in the group who were acting in that way, that was not me and that's where, that's probably, erm, that's probably, I get that you're struggling with the stance but I am also struggling myself to articulate that and say that, in any statement or in anyway that, that erm, it, I was never any physical threat to, [Mr P] or [Ms P]. A little later Mr Chatwin asked why Mr Haley did not "speak to the business first thing in the morning", and to "let us know somethings happened and de-steam it". Mr Haley said he should have. Mr Haley said (emphasis added): At the time, erm, at the time there had been no physical altercation in the sense of, there was no criminal charges and there was no criminal activity, erm, and that was, you know the police came, did nothing, you know, spoke to Andy, did nothing, so there was no police involvement, which lessened the seriousness. I am not saying it wasn't serious but it would have been more serious if there was criminal, if there was a criminal aspect, there wasn't, erm, in the morning I felt it was something that a bunch of adults could resolve, erm the proposal that Andy made to me, being the lead tenant unofficially that he would reach out to them, offer his apologises, he would make it good, provide a token gesture. A little later Mr Cashin asked a question which resulted in the following exchange (emphasis added): PC - Just um, you mentioned um, you know in the context afterwards, that, that you know that the context afterwards that there was no criminal activity or violence, there is an allegation of an assault by the complainants from you and you had bruising, so you alleged the physical assault, TH - Yes PC- That's pretty serious, that surely would have prompted you to make a call or do something, can you just explain a little bit around that, and where that allegations [sic] is at now. TH — Yeah, course, erm, I didn't see being pushed in the back as a serious thing. Its not something I would report to the police, it is not even something I would complain and whinge about, but that's just a personal thing I think some people would receive a push and you know, I did— PC - you had bruising TH - yeah, I didn't notice the bruising until Monday, erm so the bruising was here (points) erm, and It wasn't visible to me. It was only when I was getting changed and my wife noticed it and said you've got a bruise on your back and I was like have i. and I looked and I was like jesus, I have a bruise. It was then when I connected the injury with the incident. It was a, I didn't get punched in the face, erm you know, I don't consider it to be a physical attack, [Mr P] was trying to get through a crowded room to confront Adam Neely and that's all it was, that's all it was, it wasn't an attack on me. He didn't look at me and think I am going to injury that guy or inflict injury on him. I saw it as an accidental injury. I felt violated when I saw the bruise and I have to say when I saw it, I thought good god, I've gone to private function, in a private setting to celebrate success, all that stuff, and I've come home and I am suspended, for things that I didn't do or didn't say, in terms of what was said on the Friday, and I've also received bruising and I am looking at it thinking what happened, what is going on. So, I didn't see the need to report a push in the back, and that's just, I don't know, it's just my. Some people would see that as serious, I don't. I could get pushed in the back at the train station by somebody running for a train, I wouldn't call the police and you know make accusations against that person. That's probably what I was thinking at the time and I just didn't see it as something that I needed to make an issue of, and rightly or wrongly, even now I haven't. I have put it in as context, and in terms of how I am feeling. But even now you know I don't feel like [Mr P] should receive criminal charges for pushing me. I don't feel that strongly and that may reflect how I felt on the day. It was not put to Mr Haley in cross-examination that any of the statements he made during the Show Cause Meeting were incorrect. Mr Haley was, however, cross-examined about the offensive language for which he apologised using. Mr Haley gave the following evidence: So I couldn't recall saying them during the incident, due to the level of intoxication that I was at, at that point. I couldn't hear them on the voice recording. It wasn't audible, but it was said in letters to me, and I acknowledged it and recorded my regret, rather than dispute what I couldn't hear in a recording. I didn't think that was suitable. So I acknowledged using offensive language and apologised, if it was necessary to apologise to [Ms P] or [Mr P] and they had heard it. I was willing to do that. It turns out, the record shows that she didn't, or at least, there's no record that she did but nevertheless, even today, I would — if she approached me now and said she heard that, I would apologise for saying those words. Those words were heartfelt and meaningful. 178 An aspect of LOR's case centred upon the contention that Mr Haley made various admissions at the Show Cause Meeting. Those admissions were contended to be that he: (a) admitted to using offensive language towards Mr and Ms Pointon by saying to them the Offensive Words; (b) stated that he had not been subjected to a physical attack by Mr Pointon; and (c) that he did not consider Mr Pointon's conduct to be sufficiently serious to warrant criminal charges or reporting the matter to LOR: PJ [188]. The primary judge rejected all of these contentions. These findings are challenged on the basis that Mr Haley's conduct was deliberately dishonest, which I deal with below. E.25 Lead up to the Termination Letter 179 During the afternoon and evening of 22 July 2020, notes of the Show Cause Meeting were prepared and other steps were taken. Notes of the Show Cause Meeting appear to have been prepared by Ms Cassandra Byrne (Human Capital Business Partner), and the primary judge so found: PJ [450]. These were referred to by the primary judge as the "CB Notes of Meeting". 180 At 5:07 pm on 22 July 2020, Ms Byrne sent an email to Mr Peter Clay, copied to Mr Sleeman, requesting the preparation of a final pay estimate for Mr Haley "on the basis his employment is terminated without notice effective Friday, 24 July 2020": PJ [453]. 181 At 12:08 pm on 23 July 2020, Ms Byrne sent an email to Mr Chatwin, Ms Fraser, Mr Sleeman, and Mr Bates attaching a "draft final pay estimate" for Mr Haley and stating as follows (PJ [454]-[455]): Hi all Following on from yesterday I have pulled together a number of items for consideration; 1. Draft final payment estimate — this has been calculated as at tomorrow, 24 July. The final figure will shift slightly depending on the agreed exit date. It is also important to note this has been calculated on the basis long service leave is excluded. … 182 At 1:07 pm, Mr Chatwin responded to Ms Byrne, Ms Fraser, Mr Bates, and Mr Sleeman stating: I think this is going to really hurt Tom financially to lose all income overnight and he will likely get very bitter I suspect especially when he knows all is lost on the termination decision. I think we should test our strength on the bushfires position, Tom has worked as hard as anyone I've seen on bushfires, I can't fault his effort, late nights, weekends was definitely the norm, and we might be on shaky ground with Tom knowing what he knows on all of the uplift debates that he would have been part of. This is also where 17 years comes in, his efforts before the incident in the 6 months prior where he was massively under pressure and he braved through it shouldn't be forgotten. This will be about $60k (which I assume is taxable income?) chargeable into bushfires which I would not be concerned about, but want to be careful around precedents hence the need to check our strength in position. Also has Murray formally responded to Tom/ rejected his request? I'd have thought we'd need to close this out first so that it's not unresolved. 183 At 6:58 pm on 23 July 2020, Mr Sleeman sent an email to Mr Bates attaching the CB Notes of Meeting, which Mr Sleeman described in his email as "My rough notes". The relevant document contains a number of comments and annotations which the primary judge found were made by Mr Sleeman: PJ [452]. 184 At 4:54 pm on 24 July 2020, Mr Sleeman sent an email to Mr Chatwin, Mr Barrett and Mr Bates attaching the final Termination Letter which had Mr Chatwin's electronic signature already affixed: PJ [458]. 185 The contents of the Termination Letter were briefly summarised by the primary judge as follows (at PJ [459]): (a) It repeats the effect of the findings contained in the Show Cause Letter. (b) Under the heading "Meeting on 22 July 2020", the Termination Letter makes a number of assertions about what Mr Haley said and admissions it is asserted Mr Haley made at the Show Cause Meeting. (c) Under the heading "Issues of the alleged "physical assault" by [Mr P]", the Termination Letter makes a number of assertions culminating in the conclusion that Mr Haley "either lied in the investigation to the Investigator, or you have lied to me and Pat. There is no other possible explanation". (d) Under the section "Consideration", the Termination Letter makes a number of assertions, including that: (i) "the most striking information to flow from" the Show Cause Meeting "were your admissions that you lied about material aspects of the matter, including to the Investigator who had been charged with determining the facts of the matter at Laing O'Rourke's request"; (ii) Mr Haley's "numerous concessions during the show cause meeting" "served to evidence a pattern of serious misconduct by you intended to deliberately mislead the Investigator and Laing O'Rourke, which was in turn, intended to obscure the earlier serious misconduct that triggered the investigation"; and (iii) Mr Haley had made a "false allegation against [Mr P]". (e) Under the heading "Decision", the Termination Letter stated that LOA "has made the decision to terminate your employment for serious misconduct, with immediate effect". 186 It appears that at 4:55 pm on 24 July 2020, Mr Chatwin telephoned Mr Haley to inform him about the termination of his employment. 187 At 5:09 pm, Mr Chatwin sent the final Termination Letter to Mr Haley without any amendment: PJ [473]-[474]. E.26 Mr Chatwin's consideration as to termination 188 There was apparently little evidence before the primary judge that Mr Chatwin had any input into the Termination Letter or considered it, or that it reflected his reasons for making the decision: PJ [472]-[474]. I address these matters in greater detail below in Part F.7.4(b). 189 It suffices for present purposes to note that in the first of two affidavits of Mr Chatwin relied on by LOR in the proceedings below, Mr Chatwin said that he made the decision to terminate Mr Haley's employment for particular reasons. In a second affidavit, Mr Chatwin gave further evidence about the circumstances in which he said he decided that LOR should summarily dismiss Mr Haley from his employment, and denied that others had been involved in making that decision. Mr Chatwin stated that he made this decision alone. Mr Chatwin was cross-examined on this evidence, to which I will return in more detail below. 190 For present purposes I note that Mr Chatwin gave evidence that he made the decision to terminate Mr Haley's employment after the Show Cause Meeting had concluded, and following a process that he undertook to review all of the materials. He gave the following evidence in this regard: The show cause meeting was on 22 July, and from that meeting in the morning, 11 o'clock I believe, I took the rest of the day to go through everything I had heard, everything I had received, and check back against the investigation, and – because I haven't taken a note of when it was, it was somewhere around 22 or 23 July when I made that decision, possibly the morning of the 23rd, because I think I wanted to sleep on it. … I think I was probably going till very late in the evening, because of the volume of information to go back through. Just probably just bear in mind I had gone through the investigation findings, all the interview words – records, multiple times. So I was highly, highly prepared for the show cause meeting. And then, the deliberations in the afternoon were anything that came out of the show cause meeting, considering it, checking back anything you had said against the previous statements. … … So not 11 till 5, probably 11 till 11, and then back up in the morning, and then moving into the final decision in the morning. … I think I had locked myself in a room and, if I had any queries, I would have obviously just reached out to people for those queries. But in terms of the final decision, I just wanted to just think myself… (Emphasis added). 191 Mr Chatwin also gave evidence under cross-examination that he informed Ms Fraser of his decision to dismiss Mr Haley at around 9.30 am on Thursday 23 July 2020, and "then I think during that day, I called Cathal [O'Rourke] at some point and just grabbed him". 192 Ultimately, the primary judge was not satisfied that Mr Chatwin, or that Mr Chatwin alone, was the person who made the decision to terminate Mr Haley's employment: PJ [503]. This is a central finding challenged by LOR in the appeal. I will return later in these reasons to the reasons given by his Honour for that conclusion. 193 I now turn to address the errors of fact which LOR alleges were made by the primary judge. F. ERRORS OF FACT ALLEGED BY LOR F.1 First Alleged Factual Error: the owners of the Pambula Property did not hear or notice the Offensive Words 194 LOR challenges the finding of fact made by the primary judge at PJ [216](c) that Mr and Ms Pointon: … did not hear or notice Mr Haley say the words "[g]o home you fucking silly old cunt" because at the time Mr Haley spoke them Mr Shaun Boyle and Mr Shane Neely were arguing with Ms and Mr [Pointon], and Mr Grierson was attempting to dissuade them from doing so, and Ms [Pointon]'s attention was directed to what Mr Shaun Boyle, Mr Shane Neely, and Mr Grierson were saying… 195 LOR contended that this finding was erroneous because the primary judge accepted that Mr Haley had said the Offensive Words (at PJ [137]-[138]) and that they were directed towards the owners of the Pambula Property (citing PJ [149]); and because the Audio Recording taken by Ms Pointon recorded this fact. Contrary to LOR's contentions, the primary judge did not find that the particularly vulgar and offensive aspect of the Offensive Words, being the words "go home you fucking silly old cunt", were directed to the Pointons. Rather, the primary judge rejected Mr Haley's suggestion that other parts of the Offensive Words (being the words "Go home old man, old lady. Go home, go home, go home, go home") could have been directed to some other (older) person at the Property: PJ [149]. In any event, neither of the matters asserted by LOR establish that the Pointons heard the words "go home you fucking silly old cunt". 196 The fact that Mr Haley had uttered the words "go home you fucking silly old cunt" did not mean that they were heard by the Pointons, or anyone else. The Pointons did not give oral evidence in the proceedings below. Nor did any other witness of fact give oral evidence besides Mr Haley. As a result, there was no direct oral evidence from any person that they heard the words "go home you fucking silly old cunt". 197 Further, the only evidence in the proceedings below as to the Incident, other than Mr Haley's evidence, was that contained in the Pointons' Accounts and the Witness Accounts. None of these accounts, including those given by the Pointons, established that any person heard the words "go home you fucking silly old cunt" at the time of or during the Incident. None of the witnesses were even asked whether they heard those words or whether they were directed to the Pointons. This is remarkable given that LOR had the Audio Recording in its possession from 6 July 2020. Further, Mr Grierson was asked to identify Mr Haley's voice from the Audio Recording but was not asked and did not say that he heard Mr Haley say "go home you fucking silly old cunt" during the Incident or that those words were directed to the Pointons. These matters are all the more remarkable given that, on LOR's case, Mr Grierson was outside and conversing with the Pointons at the relevant time: PJ [205]. 198 The fact that the Audio Recording records (albeit faintly) the words "go home you fucking silly old cunt" takes the matter no further. There was no evidence that the Pointons listened to the Audio Recording and heard these words through that process. This reasoning is fortified by the fact that the Pointons never complained that they heard these words, though they levelled other allegations against Mr Haley and others. The primary judge's assessment of the part of the Audio Recording at 1 minute and 24 seconds, being the point in time these words can be faintly heard, accords with my own assessment of the evidence, namely that it is only with concentrated effort that they can be heard when the recording is played, and there is other considerably more prominent dialogue in the foreground of what was being recorded. As I have already noted, my own review of the Audio Recording is that the words are barely audible and can only be heard with considerable effort. 199 LOR next contended that it should be inferred from the Audio Recording that Ms Pointon heard the words "go home you fucking silly old cunt" because "immediately thereafter" Ms Pointon was recorded as asking "what's that one's name?". LOR contended that the primary judge's finding that this question was only asked after Mr Haley had said the words "Go home old man, old lady. Go home, go home, go home, go home" is one that "cannot be accepted". 200 I am not satisfied the primary judged erred. On my review of the evidence, I do not accept that Ms Pointon sought to identify Mr Haley "immediately" after the words "go home you fucking silly old cunt" were recorded. My assessment of the Audio Recording accords with the primary judge's findings at PJ [152]-[153] that it is misleading to represent that Ms Pointon's enquiry came immediately after these words were uttered. True it is that her enquiry came at a point after the words "go home you fucking silly old cunt" were uttered, but to say this places a gloss on the fact that in the period after that time there are others who are recorded as saying various things and Mr Haley thereafter was heard more audibly saying "Go home old man, old lady. Go home, go home, go home, go home". I agree with the primary judge's assessment of the evidence that these latter words "were materially louder, and more distinct to the ear". My distinct impression is that Ms Pointon's enquiry as to Mr Haley's identity was prompted by these latter words, and not the words "go home you fucking silly old cunt". 201 LOR further contended that, ultimately, the fact that there was no direct evidence that the Pointons heard the words "go home you fucking silly old cunt" is "beside the point" because they were recorded in the Audio Recording which was "available to the property owners, and which they could listen to or distribute as they wished". LOR contended that the correct finding is that the Pointons "heard the Offensive Words" or some part of them or "by virtue of the Audio Recording had the means to hear the Offensive Words". On my review of LOR's pleaded case and submissions in the proceedings below, these contentions were not put to the primary judge and his Honour was not invited to make these findings. After the conclusion of oral argument before me, I directed LOR to file and serve supplementary submissions identifying whether the primary judge was invited to make such a finding. In its supplementary submissions, LOR pointed to no aspect of its extensive oral and written submissions in the proceedings below where the primary judge was invited to make such a finding. LOR instead contended as follows: What was plainly put in the Court below was that the conduct that the Respondent engaged in constituted misconduct such that the Appellant should not be bound to continue the employment. If the Primary Judge were to find that the Respondent's conduct on the evening of 2/3 July 2020 was conduct other than that alleged, it did not relieve him of the obligation of considering whether that other form of conduct, perhaps lesser than but consistent with that alleged, nonetheless was such that, in justice and fairness, the Appellant ought not be bound to continue the employment. 202 LOR's submission was to the effect that the primary judge had an obligation to decide the case on a basis other than that which was pleaded and run at trial, including as set out in LOR's extensive closing submissions. It may have been open to LOR to have run its case on the basis that the summary termination of Mr Haley's employment was justified or warranted for reasons other than those actually given for his termination in line with the principle drawn from Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 and as discussed in Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221. However, having pleaded and run its case at trial on a particular basis, LOR's submission (extracted above) did not articulate the basis upon which the primary judge erred by not deciding the case in precisely the way it was put. LOR's submissions did not engage with the principles arising from Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51] (Gleeson CJ, McHugh and Gummow JJ) and Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497. 203 Nor did LOR's submissions engage with cardinal principles of appellate review. As I have explained above, the purpose of an appeal is to correct error. It is not an opportunity for an appellant to run a case different to that advanced in the proceedings below. It is well established that where an appellant seeks to do so, it must seek leave and attend to the considerations raised in decisions such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. In Coulton v Holcombe, the plurality endorsed the observation made in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71, that: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 204 LOR made no attempt to engage with these principles, or even refer to them. The appeal in this respect was conducted on the basis that it was simply open to me to make my own factual findings and then assess whether Mr Haley had engaged in misconduct and arrive at a different conclusion to that of the primary judge. That approach is fundamentally inconsistent with the purpose of an appeal. 205 By its Amended Notice of Appeal, LOR contended that the primary judge erred by making a finding of fact that the "owners of the Pambula Property did not hear the Offensive Words". For the reasons stated above, I am not satisfied that the primary judge erred in making this finding of fact. LOR's submission that this finding of fact was "beside the point" and that the Court should have made an additional finding of fact does not establish an error requiring correction, but is an invitation to stray beyond the scope of an appeal without LOR attending to the limits of appellate review and the circumstances in which they may be departed from. 206 For the foregoing reasons, I reject the First Alleged Factual Error. F.2 Second Alleged Factual Error: the owners of the property had no right to demand that the tenants leave the property 207 LOR challenges the finding of fact made by the primary judge at PJ [538](c) that the Pointons had no right to make a demand that the occupants leave the Pambula Property. This ground of LOR's appeal overlaps with its No Evidence Ground, which essentially raises the point that there was no evidence to support the primary judge's finding that the Pointons had no right to make such a demand. For the reasons that follow, I accept LOR's contention that the primary judge erred in making this finding, but that error is of no ultimate consequence to the disposition of the appeal. 208 The finding at PJ [538](c) has to be viewed in the context of the finding at PJ [538](a) that there was "no evidence" to support LOR's submission that the Pambula Property was being rented by LOR, and the primary judge's observation that the relevant "rental agreement" had not been produced and was not in evidence. LOR does not challenge these findings. 209 It was in this context that the primary judge stated at PJ [538](c): … it is inaccurate to refer to Mr and Ms [Pointon] as "two members of the public whose property was being rented by [LOR] and used by its employees in connection with their work on the Bushfire Project". I have found that Mr and Ms [Pointon] entered the Pambula Property and exhibited verbal and physical aggression. The verbal aggression consisted of Mr and Ms [Pointon] demanding that all the occupants leave the premises, a demand they had no right to make; and the physical aggression consisted of Ms [Pointon] (possibly together with Mr [Pointon]), grabbing a remote from one of the attendees; and Mr [Pointon] making physical contact with Mr Haley that was of sufficient force to result in his being bruised; and Mr [Pointon] grabbing the arm of Mr Adam Neely… (Emphasis added). 210 LOR contended that there was no evidence to support the primary judge's finding that the Pointons had no right to make the demand that they did and that it is "unlikely to reflect the legal situation". 211 I accept LOR's contention that there was no evidence before the primary judge to support the finding that the Pointons had no right to demand that the occupants, including the Pambula Property Residents and their guests, leave the Pambula Property. This finding assumed that there was a legal source from which the Pointons' rights could be ascertained and determined. However, the primary judge did not identify the relevant legal source upon which his finding was based. The agreement by which the Pambula Property Residents came to occupy the Pambula Property was not in evidence. The source of the legal rights of the parties were therefore not known, and they were not the subject of submissions made by the parties. 212 It follows that the primary judge erred by finding that the Pointons had no right to make the demand that they did. 213 However, it does not follow, as LOR invited me to find, that the Pointons had such a right. In its written submissions on appeal, LOR contended that the arrangement between the Pointons and the Pambula Property Residents or LOR was not a residential tenancy falling within the meaning of the Residential Tenancies Act 2010 (NSW) (RT Act). It contended that this was so by pointing to provisions of the RT Act that were claimed to support the position that a booking made on the "Stayz" website was not a residential tenancy. LOR further contended that, even if the RT Act applied, it did not necessarily grant a tenant a right to exclusive possession. It was submitted that there is no statute in New South Wales that prohibits the owner of short-term accommodation from entering the premises and directing its occupants to leave. 214 LOR also contended that the Pointons had a general legal right as the owners of the Pambula Property to request non-tenants to leave and that the primary judge should not have made any findings about these matters without the issues having been addressed by the parties at trial. Finally, LOR contended that it was inconceivable that the Pointons did not have a legal right to enter the Pambula Property and demand the occupants to leave in circumstances where Mr Pointon's mother was residing in a part of the Pambula Property. 215 None of the arguments that LOR raised on appeal as to the non-application of the RT Act and the general rights of lessors or licensors of temporary accommodation were argued before the primary judge. There was no evidence before the primary judge upon which findings one way or another could be made about these matters. And, LOR did not cite any authorities in support of its contentions as to the general rights of property owners in the context of a short term letting such as that which applied in respect of the Pambula Property. 216 Thus, while I accept that the primary judge did not have an evidentiary basis to find that the Pointons had no right to demand the occupants leave the Pambula Property during the Incident, I am equally not prepared to find that the primary judge erred by not finding that they had such a right, or that I should now so find on appeal. 217 In any event, in my view, the error made by the primary judge does not bear upon the outcome of the appeal. Whether the Pointons had a right to make the relevant demand or not, the primary judge also considered it critical that they had entered the Pambula Property unannounced and made those demands in a verbally and physically aggressive manner. The primary judge made express findings to this effect at PJ [538](c). LOR does not challenge these findings. LOR did not gainsay that the Pointons entered the Pambula Property and "exhibited verbal and physical aggression". The fact that the Pointons demanded the occupants to leave together with their other conduct, was relevant to the context of Mr Haley's conduct, irrespective of whether they had a legal right to make that demand. 218 For these reasons, while I accept that the primary judge erred by finding that the Pointons had no right to demand the occupants leave the Pambula Property, I do not accept the contrary factual finding urged by LOR. F.3 Third Alleged Factual Error: Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words 219 LOR contended that the primary judge erred by finding at PJ [215](m) that Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words. The primary judge's reasons at PJ [215](m) were as follows: In the Haley Statement Mr Haley said that he did not go outside the house after Mr Byrne had convinced "the intruder to go outside in an attempt to calm him down"; Mr Haley was at least 15–20 yards "from the intruder"; from that position Mr Haley observed a further commotion "outside between the group and the intruder"; Mr Haley approached the door to see what was happening; and Mr Grierson "shepherded" Mr Haley inside. In the Show Cause Meeting of 22 July 2020 Mr Haley said that he uttered the words "go home you fucking silly old cunt" and "Go home old man, old lady, go home, go home, go home, go home" when Ms P was in the garden, and when Mr Haley was in the house at the door, and he could not see her there. I find that Mr Haley said that he uttered the words "go home you fucking silly old cunt" and "Go home old man, old lady, go home, go home, go home, go home" when Ms P was in the garden, and when Mr Haley was in the house at the door, and when he could not see her there. (Emphasis added). 220 LOR's submissions as to this ground of appeal are worth setting out in full: The Applicant/Appellant submits that this finding is irrelevant to the disposition of the Appeal. The Primary Judge found that the words were directed towards the female owner and whether she heard the words then, or heard the words on the Audio Recording, there can be no doubt that she was in a position to hear the Offensive Words. The finding is, however, relevant to the Primary Judge's approach to fact finding. The Primary Judge accepts that the Respondent has no independent recollection of saying the Offensive Words. Accordingly, the Respondent was in no position to say whether he said those words in the presence of the female owner or not. The Primary Judge does not point to any other evidence which might support the finding. The finding is inconsistent with the Audio Recording in which the words are uttered, and the female owner says, "And what's that one's name?" to which the Respondent ultimately replies "Tom." Quite apart from the evidence, the Primary Judge's finding requires one to accept that the Respondent was wandering around a room, in the company of other people, saying quite loudly (as on his evidence he was 15-20 yards away), in reference to the female owner "Go home you fucking silly old cunt". That bespeaks a level of intoxication when travelling for work and gathering with work colleagues which is hardly appropriate for an employee of the Respondent's standing and associated responsibilities and obligations. Further, the Primary Judge's finding pays no regard to the fact that the female owner could plainly hear the Respondent, as she asked his name, and the Respondent could plainly hear the female owner, as he answered her. All this, according to the Respondent in his 8 July Statement, as being without ever coming "in to contact with the intruder's wife". The Respondent accordingly contends that this finding should be quashed, or if retained, determined to be irrelevant to the disposition of the appeal. (Emphasis added). 221 If, as LOR contended, the primary judge's finding was, and is, irrelevant to the disposition of the appeal, it need not be determined. Mr Haley submitted as much. 222 After oral argument in the appeal concluded, I invited LOR to indicate to the Court whether it continued to press this appeal ground or wished to abandon it. In its supplementary submissions, LOR did not abandon the ground. This was an inexplicable position to take in circumstances where LOR expressly contended that the relevant finding of fact was irrelevant to the disposition of the appeal. 223 I accept Mr Haley's submission that the contention is without merit. As the primary judge pointed out, Mr Haley's evidence was that he was some 15-20 yards away from the Pointons when they were outside in the back part of the Pambula Property. It was late at night and into the early hours of the following morning. Mr Haley from his very first statement, being the 8 July Haley Statement, had accepted that there was a commotion inside the house that was taken outside, and that he had attempted to go outside but was shepherded back inside by Mr Grierson. Mr Haley maintained the position that he had not seen Ms Pointon and did not see her at the time when the relevant events recorded in the Audio Recording occurred. The primary judge accepted that evidence. 224 LOR's written and oral submissions took me to no part of the evidence which provided a basis upon which the primary judge's acceptance of Mr Haley's evidence should be overturned. The fact that the Offensive Words were recorded on the Audio Recording (albeit faintly) and that Ms Pointon enquired as to Mr Haley's name did not establish that Mr Haley had seen Ms Pointon. The finding was not glaringly improbable or contrary to incontrovertible facts. 225 Further, LOR's related contention that Mr Haley's conduct "bespeaks a level of intoxication when travelling for work and gathering with work colleagues" that was hardly appropriate for an employee of his standing was not tied to any part of LOR's case as advanced in the proceedings below. LOR neither pleaded nor ran its case below on the basis that Mr Haley had engaged in misconduct by reason of his level of intoxication on the night in question and that this fact alone was inconsistent with his managerial position. As with other submissions made by LOR, this assumed that I should find that Mr Haley's conduct was inappropriate and amounted to misconduct without being tethered to the way that LOR ran its case below. Yet again this mistook the function of this Court on appeal. 226 Given what I have found above, that LOR has not established that the primary judge proceeded in the absence of evidence in arriving at the conclusion that Mr Haley could not see Ms Pointon when he uttered the Offensive Words, I reject LOR's more general submission (pressed in its supplementary submissions) that the primary judge was "so committed to justifying the conclusion that he had arrived at, that he was prepared to proceed in the absence of evidence". I do not accept that this finding calls into question generally the primary judge's "approach to fact finding". 227 For these reasons, I reject the Third Alleged Factual Error. F.4 Fourth Alleged Factual Error: to the extent Mr Haley made statements in the Reflection Email with which he did not agree, he was unfairly induced to do so 228 LOR contended that the primary judge erred by finding at PJ [416] that, insofar as Mr Haley made admissions in the Reflection Email with which he did not agree, he was "unfairly induced to do so". 229 The finding made by the primary judge at PJ [416] was as follows: These circumstances are a basis for finding, and I find, that, to the extent Mr Haley did make statements in the Reflection Email with which he did not agree, he was unfairly induced to do so by: (a) Mr Curnow-Rose, in the 9 July Letter: (i) impliedly, but incorrectly, representing he was continuing to investigate the allegations Mr and Ms [Pointon] in fact made which Mr Curnow-Rose had communicated to Mr Haley by letters dated 4 and 6 July 2020; (ii) impliedly, but incorrectly, representing that the allegations Mr and Ms [Pointon] made included an allegation that Mr Haley said "the Offensive Words"; (iii) failing to disclose to Mr Haley that Mr and Ms [Pointon] in fact did not include an allegation that Mr Haley said "the Offensive Words"; (iv) failing to disclose that by 5:03 pm on 8 July 2020 had completed his investigation by finding that the allegations Mr and Ms [Pointon] made were "substantiated"; (b) LOA's not disclosing to Mr Haley that the allegations Mr and Ms [Pointon] made about Mr Haley's conduct would not in fact be the subject of investigation, but that the purported subject of investigation was to relate to a matter that did not include any allegations Mr and Ms [Pointon] made; and (c) Mr McDevitt's advice, which was based on the incorrect assumption that the investigation LOA had carried out or was continuing to carry out in relation to the allegations Mr and Ms [Pointon] made, had been or was a genuine investigation into the truth of those allegations. (Emphasis and additional emphasis added). 230 It will be immediately apparent from PJ [416] that the primary judge's finding as to Mr Haley being "unfairly induced" was a qualified one. It was expressly limited on the basis that the so-described unfair inducement applied to the extent that Mr Haley made statements in the Reflection Email with which he did not agree. The primary judge did not disclose at PJ [416] the extent to which Mr Haley did, in fact, disagree with the statements he had made in the Reflection Email. The earlier parts of the primary judgment indicate that there were two potential inconsistencies that arose during the cross-examination of Mr Haley which may have been characterised as Mr Haley expressing disagreement with the contents of the Reflection Email, but closer examination of that evidence does not bear this out. 231 The first potential inconsistency related to the part of the Reflection Email in which Mr Haley stated: I now fully understand and appreciate that I am always on duty and that I have a responsibility to represent the business appropriately at all times. This responsibility is increased exponentially on a sensitive project like the bushfire recovery program, where we have set such high customer care standards in the communities where we have operated with outstanding business performance. 232 When cross-examined about this part of the Reflection Email and whether he accepted it, Mr Haley said, "I now fully understand and appreciate" (emphasis added). This response indicated that Mr Haley was accepting at the time of giving evidence (i.e., "now") that he understood that it was his responsibility to represent the business at all times on a sensitive project such as the Bushfire Project. Mr Haley was then asked whether, as at 2 July 2020 (when the Incident occurred), he understood that the Bushfire Project was a sensitive one for LOR and required a "very high degree of care towards the local communities in which the work was being done", to which he replied, "No". 233 Pausing here, Mr Haley's evidence to this point was that he did not understand the extent of his responsibilities as at the time of the Incident, specifically that he had a duty to represent the business of LOR "at all times". Whether that was a legally correct position or not (and I have my doubts as to whether it was), Mr Haley's evidence was that he did not understand that to be the case at the time of the Incident. 234 Mr Haley was then asked whether "that" was his evidence, to which he said: It is. Those words came about from a conversation with Kevin McDevitt, who had spoken to Simon Chatwin, and Kevin McDevitt's words were — advice to me was, "You have to say these things in order to keep your job," and I put them in this statement to say I now fully understand and appreciate, and my intention was to acknowledge the things that I've been told to say by Kevin, who had received that information from Simon Chatwin… 235 When pressed as to whether these matters had only "dawned" upon him following his conversation with Mr McDevitt, Mr Haley said he had "some awareness of the impact" of them but not to the level that he had come to understand. 236 Reviewing this evidence without the benefit that the primary judge had of listening to it first hand, Mr Haley's evidence was that at the time of the Incident he did not understand that his responsibilities extended to representing the interests of LOR "at all times" especially on a sensitive project such as the Bushfire Project, but that he had come to accept and acknowledge this following his conversation with Mr McDevitt and understood that he needed to say so in order to keep his job. The two positions were not inconsistent. Mr Haley's evidence was that he realised something that he had not realised earlier, and addressed the issue in the Reflection Email because he felt he had to say it in order to keep his job. 237 It will be recalled that the primary judge had reasoned that the Reflection Email was unfairly induced only to the extent that Mr Haley gave evidence that he did not agree with the content of the Reflection Email. However, in relation to this topic, I do not consider that Mr Haley gave evidence that he did not agree with the content of the Reflection Email or was resiling from it. Thus, the premise upon which the primary judge's factual finding as to unfair inducement was challenged is not made out. 238 In so concluding, it should be made clear that it was not argued before me whether the position put to Mr Haley, and which he accepted as acknowledging in full by the time of the Reflection Email, was a factually and legally correct one, or whether his evidence was, in light of that factual and legal position, not a credible one. 239 The second potential inconsistency related to the following statement made by Mr Haley in the Reflection Email: I am embarrassed that I used offensive language in the vicinity of a member of the public and I acknowledge that this is not acceptable and it is not necessary to use offensive language in any context and under any circumstances. (Emphasis added). 240 The primary judge recorded at PJ [406] that Mr Haley gave the following evidence about this statement in cross-examination: Yes. And, Mr Haley, when you were referring to using offensive language there, you were referring to the offensive words that were said to [the Pointons], weren't you?---It was the offensive language that had been alleged — sorry, had been — it came in one of the letters. So I was aware of the words that were — I received the letter on 9 July that said this is what it says at the part of the recording. I couldn't hear it myself. But what I wanted to do was, even though I couldn't hear it, acknowledge it and say that is the offensive language and recognise that, had I been sober, I wouldn't have taken that approach and it was the intoxication at the time, the stress, the tiredness that resulted in the momentary lapse in behaviour and that's what it was, Mr Jedrzejczyk. So is it fair to say that, by this point in time, and "by this," I mean 20 July 2020, by then you were able to recall that you had said those words. Is that right?---No, no. I still couldn't hear them on the voice recording but Kevin … Sorry, Mr Haley, I just — I may have misheard you. But the question was - - -?---Okay. - - - at this point in time, being 20 July 2020 when you wrote this email - - -?---Yes, Mr Jedrzejczyk. - - - were you then able to recall that you had said the offensive words to [Mr and Ms Pointon]?---No. Kevin McDevitt and I - - - Right?--- - - - had quite a pointed conversation about this particular issue. I couldn't hear it. Kevin said you need to acknowledge it and Kevin is a good — always been a good source of advice through my career and he has been very good to me. And I decided for the sake of trying to get this resolved and getting back to work that I would acknowledge the offensive language and hope that we could move on from this. That was my intention. HIS HONOUR: Could I - - -?---So, no, I didn't recall. (Emphasis added). 241 In respect of this evidence, the primary judge reasoned as follows at PJ [407]-[409]: This evidence is problematic to the extent that Mr Haley appears to say that at the time he had his conversation with Mr McDevitt (Mr Haley does not say whether it was on 14 or 18 July 2020) Mr Haley says he could not hear "the Offensive Words" on the audio recording. I have already found that by the time Mr Haley sent the Response to 9 July Letter Mr Haley had satisfied himself that the voice that uttered "the Offensive Words" was his voice on the audio recording. I therefore do not accept Mr Haley's evidence to the extent he intended to say that at the time he had the conversation with Mr McDevitt he did or could not recognise that it was his voice that said "the Offensive Words". This part of Mr Haley's evidence has caused me to pause to reflect whether this renders Mr Haley a generally unreliable witness. It does not. First, Mr Haley's account of the Incident is corroborated and substantially supported by the evidence Mr Curnow-Rose collected. Second, Mr Haley's credibility is indirectly acknowledged by LOA. The Second Purported Investigation Report did not investigate the allegations Mr and Ms [Pointon] actually made about Mr Haley's conduct; and the allegation that report purported to investigate was not an allegation Mr and Ms [Pointon] made. That still leaves me to determine whether I should accept Mr Haley's evidence that, as at 20 July 2020, he did not have an actual recollection of having uttered "the Offensive Words". For the reasons I have concluded that, contrary to LOA's submission, I am not satisfied that Mr Haley has a present recollection of uttering "the Offensive Words", I am not satisfied that as at 20 July 2020 Mr Haley had an actual recollection of having uttered the Offensive Words. Moreover, I find it is more likely than not that Mr Haley did not have an actual recollection of uttering "the Offensive Words". It is more likely that, when Mr Haley listened to the audio recording, his attention was directed to determining whether it was his voice on the audio recording that uttered "the Offensive Words", rather than being directed to whether he had an actual recollection of having uttered the words. In any event, nothing turns on whether Mr Haley, as at 20 July 2020, or at any other time, Mr Haley had an actual recollection of having uttered "the Offensive Words". As I have already found, Mr and Ms [Pointon] did not complain that they heard Mr Haley utter "the Offensive Words", and I am not satisfied they heard Mr Haley utter "the Offensive Words". (Emphasis and additional emphasis added). 242 As is evident from the above passages, while the primary judge expressed concerns about Mr Haley's evidence as to whether he had recognised his voice on the Audio Recording by 20 July 2020 when he sent the Reflection Email, ultimately, the primary judge accepted Mr Haley's evidence that he had no independent recollection of having uttered the Offensive Words. It followed that Mr Haley's statement in the Reflection Email acknowledging that he had used offensive language in the vicinity of Mr and Ms Pointon was not inconsistent with his evidence before the primary judge that he had no independent recollection of having said them. Again, in this regard, Mr Haley did not give evidence that he did not agree with the content of the Reflection Email. And, again, the premise upon which the primary judge's factual finding as to unfair inducement was challenged is not made out. 243 LOR contended that "it might be thought" that the "inevitable conclusion" was that Mr Haley was prepared to "say whatever suit[ed] his interests at any given moment", and made other submissions to the effect that Mr Haley's evidence regarding the Reflection Email was lacking in credibility, but the primary judge did not make such a finding and it is not a ground of appeal that LOR advanced. 244 Rather, LOR's challenge is to the finding made by the primary judge that the Reflection Email was "unfairly induced". As set out above, the primary judge's finding that the Reflection Email was unfairly induced was limited to the extent that there was any part of it with which Mr Haley did not agree. For the above reasons, on my review of the evidence, I am not satisfied that there was in substance any inconsistency between the Reflection Email and the evidence that Mr Haley gave in the proceedings below. 245 For these reasons, I reject the Fourth Alleged Factual Error. F.5 Fifth Alleged Factual Error: Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words 246 LOR challenges the finding made by the primary judge at PJ [409] that Mr Haley had no actual recollection of uttering the Offensive Words as at 20 July 2020. The relevant paragraph of the primary judgment is extracted above at [241]. 247 LOR contended that in circumstances where Mr Haley had been provided with the Audio Recording on 9 July 2020, the primary judge's finding that Mr Haley had no recollection of uttering the Offensive Words was "almost impossible to reconcile" with the content of Mr Haley's detailed account of events in the 8 July Haley Statement. The logic of LOR's contention was that, having given a detailed account of the Incident in the 8 July Haley Statement, Mr Haley was not being candid, and was being intentionally dishonest and lying, when he later said and gave evidence that he could not recall having uttered the Offensive Words. LOR contended that Mr Haley's lack of recollection of this matter but detailed recollection of others was consistent with him being intentionally dishonest in his dealings with his employer, constituting serious misconduct. 248 In support of this contention, LOR also called in aid Mr Haley's statement made in the Response to the 9 July Letter in which he claimed that the Audio Recording was illegal and where he referred to the person uttering the Offensive Words as an "individual" without identifying himself as that person. LOR submitted that the correct finding was that at all material times from 3 July 2020, Mr Haley had a recollection of uttering the Offensive Words and, if he did not recall, the Court should find that he should not have, in effect, feigned to have detailed knowledge of other events relating to the Incident. 249 I reject these contentions. Mr Haley's account in the 8 July Haley Statement was not inconsistent with him being unable to recall having uttered the Offensive Words. That is so even after he had heard the Audio Recording. The fact that he could hear the Offensive Words on the Audio Recording was not inconsistent with him not being able to independently recall having said the Offensive Words. Nor was it inconsistent for him to be able to recall some events of the Incident with a level of detail, and not others. I discern no error in the primary judge's reasons in assessing and accepting this evidence. 250 It is also to be recalled that at the time Mr Haley provided the 8 July Haley Statement, he was not provided with the details of and had no awareness of the particulars of any allegation made by the Pointons, other than that they had alleged he had "acted in an aggressive, inconsiderate, deplorable and intimidating manner". The 8 July Haley Statement reflected Mr Haley's recollection as at that time, and, in the absence of particulars, he cast the Pointons as the instigators and aggressors of the Incident. Mr Haley had in the 8 July Haley Statement admitted that he "contributed to the commotion by saying things like you are out of order and you need to leave" and also admitted that there was a further commotion outside and he was shepherded back inside. True it is that Mr Haley did not admit in this account that he had used offensive language (although he did so later when that allegation was put to him). However, it did not follow from this fact that he was deliberately lying, which is a matter I will return to below. 251 For these reasons, I reject the Fifth Alleged Factual Error. F.6 Sixth Alleged Factual Error: there was no genuine investigation of the complaints against Mr Haley 252 LOR challenges the finding made by the primary judge at PJ [18] that there was no genuine investigation of the complaints against Mr Haley. 253 There was a dispute between the parties as to what the primary judge meant in finding that there was no "genuine" investigation. LOR contended that, consistent with the authorities cited by the primary judge, the finding meant that the investigation was one that was mala fide or, alternatively, if his Honour was not applying those authorities, the finding meant that the investigation was one which the primary judge did not approve of. Mr Haley contended that the authorities cited by the primary judge did not require a finding to be made that the investigation was mala fide, and that his Honour explained at PJ [254] that the investigation was not genuine because there was "no genuine effort to determine the truth of the matters that constituted the complaint Mr and Ms [Pointon] in fact" made or even "any genuine effort to determine the truth of what occurred during the Incident". Before resolving this question, it is necessary to view the primary judge's findings in the context in which they were made. 254 The primary judge's finding as to whether the investigation was a "genuine" one was tied to his Honour's reasons for rejecting LOR's contention that Mr Haley had lied and been deliberately dishonest during the course of the investigation. As the primary judge observed at PJ [16], LOR contended that Mr Haley manifested a "lack of candour in the investigation" and he did so by "making certain non-disclosures" and by failing to admit certain things. As to these matters, the primary judge reasoned as follows at PJ [16]-[17]: LOA does not in its written submissions refer to the legal basis on which it submits Mr Haley had a duty of candour in the course of the investigation; but it may be taken that LOA has in mind the duty Herron J identified in Associated Dominion Assurance Society Pty Ltd v Andrew: [A] duty lies on an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee's own actions performed as an employee, provided that these relate to the master's business, the employee is bound, generally speaking, to make such disclosure… Question [sic] asked relating to the employee's activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer's legitimacy. It certainly could destroy all confidence between master and servant which is an essential feature of all such contract [sic]. The employee's obligations to answer his or her employer's questions, and otherwise disclose information to his or her employer, however, are not unqualified. Habersberger J made that point in Carter v The Dennis Family Corporation. After quoting from Herron J's judgment in Associated Dominion Assurance Society Pty Ltd v Andrew, Habersberger J said: The process of questioning must be fair and reasonable. Moreover, as Judd J said in Howard v Pilkington (Australia) Ltd the questioning must be: a genuine investigation … to properly inform the employer of the true character or extent of the employee's conduct. His Honour held that in the case before him: the investigation was a managed process, designed to accumulate material to justify Mr Howard's early termination. Mr Kruger's written interrogation of Mr Howard was demonstrated to be a charade, designed to justify his dismissal for failure to co-operate. This is no doubt why Pilkington did not rely upon Mr Howard's responses as a justification. Counsel for the defendant correctly pointed out that the right to terminate an employee at common law is not subject to a right on the part of the employee to be heard in his own defence. However, the point made by the plaintiff is different. It is that DFC should not be entitled to submit that Mr Carter's answers to the 28 questions constituted serious misconduct or a repudiation of the employment contract when the questions were not a genuine search for information and were not put in a fair and reasonable manner in that sufficient time was, quite unnecessarily, not allowed for the answering of the questions. 255 It is evident from the above that the primary judge was guided by the authorities which his Honour cited in determining whether the investigation was a genuine one as a step along the way of determining whether Mr Haley had not been candid during the investigation. In this appeal, LOR did not challenge the correctness of the principles cited by the primary judge which it referred to as "established authority" the "validity of [which] is not in issue". As a result, this appeal is not an occasion upon which to examine an employee's duty of candour in the course of an investigation into that employee's (mis)conduct. 256 Having referred to the authorities, the primary judge reasoned as follows at PJ [18]: Evidence relating to the nature and quality of the purported investigation that led to a person or persons who purported to make the findings on which Mr Chatwin says he relied, therefore, is relevant to determining whether it was a genuine investigation; and, therefore, is relevant to determining whether questions asked of Mr Haley in the course of the purported investigation imposed an obligation on him to disclose information to LOA. As will appear later, I conclude that I cannot be satisfied that, at least after 6 July 2020, what LOA has described as an investigation into the allegations Mr and Ms [Pointon] in fact made was a genuine investigation, that is, that it was a process by which LOA sought or intended to properly inform itself of the allegations Mr and Ms [Pointon] made against Mr Haley. My non-satisfaction is based on LOA's documents Mr Haley tendered into evidence, which LOA did not attempt to explain by calling as witnesses their apparent authors. The documents show the following: (a) By 5:03 pm on 8 July 2020, Mr Curnow-Rose completed a document titled "Investigation Report Into Complaint Made by [Mr and Ms Pointon]" (First Purported Investigation Report), in which he found that the allegations Mr and Ms [Pointon] had made in relation to Mr Haley were "substantiated". The allegations that were the subject of the First Purported Investigation Report, however, did not include an allegation by Mr and Ms [Pointon] that Mr Haley said "the Offensive Words"; and in any event is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning. (b) Mr Curnow-Rose did not disclose, and no other employee or officer of LOA disclosed, to Mr Haley that Mr Curnow-Rose had completed his investigation into the allegations Mr and Ms [Pointon] made against Mr Haley, or that Mr Curnow-Rose had found that those allegations had been "substantiated". (c) Instead, on or shortly after 9 July 2020 an officer or officers of LOA, whose identity I will refer to later, embarked on a process that led to the drafting and finalisation of the Second Purported Investigation Report. The Second Purported Investigation Report found that "the allegation" Mr and Ms [Pointon] made against Mr Haley was "substantiated". However: (i) The "allegation" the Second Purported Investigation Report purportedly found was "substantiated" was not an allegation the First Purported Investigation Report found had been "substantiated", and which that report identified; the allegation the Second Purported Investigation Report purportedly found was "substantiated" was an allegation that Mr Haley said "the Offensive Words" to Mr and Ms [Pointon]. As I have already noted, however, there is no evidence that Mr and Ms [Pointon] alleged Mr Haley said "the Offensive Words", and neither the First Purported Investigation Report nor the Second Purported Investigation Report records that Mr and Ms [Pointon] alleged Mr Haley uttered "the Offensive Words". (ii) Further, and in any event, the purported finding that the "allegation", namely, that Mr Haley said "the Offensive Words" "to" Mr and Ms [Pointon], was "substantiated" is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning. (Emphasis added). 257 LOR contended that the primary judge's reasoning at PJ [18] demonstrated that his Honour misdirected himself in concluding that its investigation was not genuine. LOR submitted that the primary judge focussed too narrowly on the initial allegations made by the Pointons and did not account for the fact that, as an employer, LOR had an interest in ascertaining whether Mr Haley had engaged in misconduct. LOR submitted as follows: The Primary Judge misdirected himself to focus on the allegations put to the Respondent and what he termed the Purported Investigation Reports, as opposed to what became a broad enquiry by the Applicant/Appellant as to the events of the evening in question, including the role of the Respondent in those events and as the Investigation and show cause process progressed, the Respondent's approach and candour and honesty in responding to inquiries and allowing the Applicant/Appellant to understand what had occurred, and the Respondent's attitude towards the events of the evening in question and the Applicant/Appellant's inquiries. The evidence establishes a genuine search by the Applicant/Appellant for information "to properly inform the employer of the true character or extent of the employee's conduct." The Respondent provided the Respondent every reasonable opportunity to explain his position, and he was required to do so cooperatively and honestly. … In any event, what ultimately was relevant to determination of the proceeding was the actual conduct of the Respondent as a senior manager of the Applicant/Appellant, not what the property owners may have raised or the form of allegations, that allegations may have evolved, nor the way in which the Investigation was conducted. In that latter respect it must be noted that an employee's conduct during an investigation can itself constitute misconduct. (Emphasis added). 258 In my view, there is considerable force in the final part of LOR's submission, and it is ultimately correct. However, before turning to that issue, it is necessary to identify certain factual matters that explain why the primary judge considered the investigation to have not been "genuine". 259 Mr Haley's employment was suspended the day after the incident. On that day, Mr Curnow-Rose, who was to be the investigator, recommended that Mr Haley be suspended, along with others. At that time, the only material that was available to LOR, including Mr Curnow-Rose, was the email from "Amy" and the further email from Ms Woodford. At this stage, these were second hand accounts of the incident, and Mr Curnow-Rose had not heard directly from the Pointons, Mr Haley or anyone else. In making his recommendation to suspend, Mr Curnow-Rose stated: Based on the brief outline of the incident and the serious behaviours exhibited by our staff, firstly we need to stand down the core group, undertake an investigation, then pending the investigation outcome seek disciplinary action if deemed proportional. The aggressive and inconsiderate behaviours show little regard for the communities in which we operate and bring the negative publicity to LORAC. (Emphasis added). 260 The primary judge's reasoning at PJ [231] and [234] was to the effect that Mr Curnow-Rose's email was consistent with him having already concluded, at least at a prima facie level, that LOR staff including Mr Haley had engaged in "aggressive and inconsiderate behaviours". LOR did not challenge this finding. 261 Later on 3 July 2020, Mr Curnow-Rose sent a letter to Mr Haley suspending him from his employment which stated that LOR had received "allegations against you of aggressive and inconsiderate behaviours that show little regard for the communities in which we operate and bring negative publicity to Laing O'Rourke (Allegations)". Two things may be noted about this statement. The first being that it bears a striking resemblance to the words which Mr Curnow-Rose had conveyed in making his recommendation to suspend and the second being that the allegations were defined by reference to those that had been received from the Pointons. 262 The suspension letter then stated that LOR "intend[ed] to investigate the Allegations" and further stated that "[a]s part of the investigation process, you will be provided with details of the Allegations and an opportunity to respond". The primary judge appears to have reasoned that by these statements, LOR had clearly communicated to Mr Haley that the investigation would be one confined to the "Allegations" and that Mr Haley would be provided details of those Allegations. 263 On the following day, 4 July 2020, Mr Curnow-Rose sent Mr Haley a further letter that explained the "investigation process". This letter again defined the "Allegations" as being those that had been received as to "aggressive and inconsiderate behaviours that show little regard for the communities in which we operate and bring negative publicity to" LOR. The letter then stated as follows: I will: * meet with the Complainant to clarify any questions they may have about the Complaint; * provide you with details of the Complaint and seek your response; and * meet with identified witnesses who are relevant to the matter. If new information arises during the course of the investigation, it may be necessary for me to conduct follow up interviews with witnesses, and to seek further responses from you and the Complainant. … I plan to complete their interviews with the Complainant and other witnesses as soon as possible. I will then arrange a meeting with you and your support person (if any) to obtain your response. I may also provide you with details of the allegations about your conduct in writing. If you believe there are witnesses who may be relevant to the investigation, please let the [sic] me know when I meet with you. You must not speak to any potential witnesses about this matter. … I will be responsible for the overall conduct of the investigation and will determine whether the Complaint is substantiated. The investigation team will also include Michelle Salisbury. I am not the decision-maker — I will provide my findings to the Laing O'Rourke legal team who will provide legal advice to Laing O'Rourke in relation to the findings of the investigation. 264 Two matters may be noted about this letter. First, the letter made it clear that Mr Haley would be provided further details of the "Complaint" and be given an opportunity to respond to that "Complaint". Second, Mr Curnow-Rose had indicated that he was conducting the investigation and that he would determine whether the "Complaint" was substantiated. 265 The primary judge in substance reasoned that Mr Curnow-Rose did not adhere to the representations he had made in this letter. That is because, as the primary judge reasoned, even though Mr Curnow-Rose and LOR obtained more specific details from the Pointons, this was never disclosed to Mr Haley. More critically, the primary judge's reasoning was in substance that, once the Pointons supplied the Audio Recording to LOR, the investigation focussed upon whether Mr Haley had said the Offensive Words which was never a specific complaint or allegation that was made by the Pointons. This led the primary judge to conclude that the questions posed to Mr Haley and the ultimate conclusions of the investigation, including as to whether the allegations were substantiated, all proceeded on the incorrect premise that the Pointons had actually complained about Mr Haley having said the Offensive Words when, in fact, that had never been a specific complaint that was made by them. 266 The primary judge further reasoned that there was a deal of editing of draft documents which excised the particulars of the specific allegations actually made by the Pointons. The primary judge considered that this was consistent with the investigation not being a genuine one. This is exemplified in part by drafts of the Executive Summary of the Investigation Report as they stood in point of time up to 15 and 16 July 2020 as set out at PJ [336], [339]-[340], [348] and [353]. In one way or another, each of the drafts during this period contained allegations along the lines set out at PJ [353] that Mr Haley: 1. Said words to the effective [sic] "I'm going to fuck up the old man and lady"; 2. Had to be restrained by another Laing O'Rourke employee; 3. [Said] "Go home you fucking silly old cunt. .. (inaudible) … 4. Chanted words to the effect "Go home old man, go home old lady". 267 The primary judge found that the (eleventh) draft created at or about 6:32 pm on 16 July 2020 removed these particulars, as did every subsequent draft after that time and the final Investigation Report: PJ [354], [357]. From this time, the allegations were referred to largely in the following terms: It is alleged that Tom Haley acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Complainants, [Mr and Ms Pointon]. 268 There were two other important reasons why the primary judge considered that the investigation conducted by LOR was not genuine. The first was that by 5:03 pm on 8 July 2020, Mr Curnow-Rose completed a document titled "Investigation Report Into Complaint Made by [Mr and Ms Pointon]" which the primary judge referred to as the First Purported Investigation Report, and in which Mr Curnow-Rose had found that the allegations Mr and Ms Pointon had made in relation to Mr Haley were "substantiated": PJ [256]. At this time, the allegations that were considered did not include an allegation by Mr and Ms Pointon that Mr Haley had said the Offensive Words. At this stage, Mr Curnow-Rose had the Audio Recording and had interviewed the Pointons on 6 July 2020 and Mr Haley earlier on 8 July 2020, as well as several other witnesses. The primary judge reasoned that in circumstances where Mr Curnow-Rose had already made a finding that the allegations were substantiated, the balance of the investigation was in substance a second investigation and did not engage with an analysis of the extensive evidence that was being collected or any rational reasoning: see PJ [264], [292]. 269 The second and related substantive reason for the primary judge's conclusion was that those involved in the preparation of the further drafts and finalisation of the Investigation Report did not engage in any genuine analysis of the evidence that had been collected or any rational reasoning. Although there is no single paragraph of the primary judgment that exposes the reasons for this conclusion, a fair reading of the judgment and my own review of the evidence discloses that there was substance to the primary judge's conclusion in this regard. For my part, I make the following observations: (a) the Pointons were never asked whether they heard the words "Go home you fucking silly old cunt", either at the time of the Incident or on the Audio Recording; (b) a number of witnesses were interviewed, but they were never asked whether they heard the words "Go home you fucking silly old cunt" and, if so, whether these were directed to the Pointons; (c) at least one witness corroborated Mr Haley's account that Mr Pointon had come into contact with him; (d) most of the witnesses agreed that Mr and Ms Pointon had been the instigators and had been verbally and physically aggressive, including a physical confrontation between Mr Pointon and Mr Adam Neely; (e) Mr Haley had admitted from his very first account (the 8 July Haley Statement) that he had contributed to the commotion; (f) Mr Haley had admitted that he was shepherded back inside by Mr Grierson, and Mr Grierson had agreed; and (g) there was no evidence that Mr Haley was aware at the time of the Incident that the Pointons were the owners of the Pambula Property, or that they had made complaints earlier in the evening. 270 The various Witness Accounts largely corroborated Mr Haley's account that the Pointons were the instigators and aggressors of the Incident. However, the various Witness Accounts do not appear to have been preferred to the Pointons' Accounts in various respects in the final Investigation Report. That report recorded that there was a concern that the witnesses may not have "complied with the confidentiality obligations required of them" including because "several statements appeared to contain similar content". However, LOR did not advance that position in the proceedings below, let alone make the more serious allegation implied in the Investigation Report that the witnesses had colluded with each other. 271 Rather, as the primary judge recorded at PJ [205]-[209]: (a) in characterising the events of the Incident, LOR relied almost entirely on the Third Version of the Pointon Complaint and a particular and misleading representation of what is recorded on the Audio Recording; (b) in doing so, LOR relied only on a section of the Third Version of the Pointon Complaint and did not include claims made in the other versions of the Pointons' Accounts; (c) LOR did not refer to or address the other substantial evidence that shed light on what occurred during the Incident, namely the other Witness Accounts, including: (i) Mr Boyle's account that Mr Pointon "pushed past" or "barged through" Mr Haley; (ii) the various accounts which recorded that Mr Pointon exhibited extreme verbal aggression and some physical aggression; (iii) evidence that Mr Haley had remained inside the house and was at least 15-20 yards from the Pointons, and had been shepherded back inside the house by Mr Grierson; (d) that LOR had not submitted below that the other Witness Accounts should be given no or little credit. 272 It was a combination of these matters which led the primary judge to conclude at PJ [18] that the investigation was not "genuine". Viewed in this way, I do not regard the primary judge to have reasoned that the investigation was mala fide. Rather, the primary judge's reasons were consistent with a finding that the investigation was not genuine in the sense that LOR did not make any real attempt to disclose to Mr Haley the terms of the Pointons' actual complaints or to critically analyse all of the evidence that it gathered in support of its conclusions. 273 In my view, whether the investigation was "genuine" or not was beside the point. I agree with, and accept, LOR's submission that what was ultimately relevant was Mr Haley's conduct as a senior manager including whether he had been deliberately dishonest during the investigation. These questions fell to be determined by the Court on the facts as established before it. Whether Mr Haley had lied or had otherwise been dishonest during the course of the investigation was a matter that required determination by reference to the evidence before the Court. That question could be informed by the quality of the investigation, for example, by reference to the questions he was asked and that he answered. The primary judge did ultimately deal with these questions. 274 Mr Haley submitted that: That matter [i.e., the genuineness of the investigation] is, however, academic. The primary judge found that Mr Haley was not dishonest. That finding has not been challenged on the appeal. The genuineness of the investigation, as relevant to the obligation of candour, therefore falls away as an issue. 275 I accept this submission. As I have mentioned, ultimately the question that the primary judge had to decide, and which the primary judge did decide, was whether Mr Haley had acted in a way that constituted misconduct, including whether he had been intentionally dishonest and had lied during the investigation. This question was dealt with extensively in his Honour's reasons at PJ [545]-[580], to which I return later in these reasons. 276 For these reasons, in my view, the appeal ground advanced by LOR is not made out. That is because the finding made by the primary judge that the investigation was not a genuine one reflected factual findings about the quality of the investigation, as opposed to it being mala fide. And, in any event, the appeal ground does not impact on the ultimate outcome of the appeal as the more relevant issue is whether the primary judge erred in finding that Mr Haley had not engaged in serious misconduct by being intentionally dishonest which I deal with below. F.7 Seventh and Eighth Alleged Factual Errors: Mr Chatwin did not make the decision to dismiss Mr Haley, and by failing to call the person who did make that decision, LOR failed to rebut the statutory presumption in s 361 of the FW Act 277 It is convenient to deal with LOR's Seventh and Eighth Alleged Factual Errors together, as they overlap. 278 By the Seventh Alleged Factual Error, LOR contended that the primary judge erred in finding that Mr Chatwin was not the person who made the decision to terminate Mr Haley's employment. LOR submitted that Mr Chatwin's evidence in his affidavits to the effect that he made the decision to terminate Mr Haley's employment should have been accepted, and I should so find. LOR further submitted that the primary judge erred by concluding from the fact that Mr Chatwin had discussions with Mr O'Rourke, and that Mr O'Rourke had ultimate authority over LOR's business, that the decision to terminate was to be made, and was made, by Mr O'Rourke. LOR also contended that the primary judge erred by inferring from the fact that other employees had been involved in preparing documents to give effect to the termination (such as calculations of entitlements and the Termination Letter) that Mr Chatwin was not the relevant decision-maker or that the decision to terminate had already been made by someone else. 279 By the Eighth Alleged Factual Error, LOR contended that, as a consequence of the primary judge's error in relation to Mr Chatwin not being the decision-maker, the primary judge further erred by finding that LOR had not rebutted the statutory presumption contained in s 361 of the FW Act by failing to call evidence from the relevant decision-maker(s). 280 Mr Haley submitted that LOR carried the burden of establishing that Mr Chatwin was the sole decision-maker. He submitted that the primary judge's reason for rejecting LOR's case below was due to the paucity of evidence it adduced and his Honour's adverse credibility findings to the effect that Mr Chatwin had not attempted to give a clear, fulsome and candid account as to Mr O'Rourke's involvement in the decision-making process. As to the latter findings, Mr Haley submitted that these are "protected" in the sense that they were dependent upon an assessment of Mr Haley's credibility: see, e.g, Fox v Percy at [94]. 281 The primary judge's reasons and findings in relation to whether Mr Chatwin made the decision to terminate Mr Haley's employment, and whether LOR had rebutted the statutory presumption in s 361 of the FW Act, were (as with other aspects of his Honour's reasons) lengthy and, often, repetitive. This reflected the complexity of the factual issues that the primary judge dealt with and the way in which the case was conducted before his Honour. I accept that I must give due recognition to the advantages enjoyed by the primary judge in assessing the evidence including that given by Mr Chatwin. Despite this, I am satisfied that the primary judge erred in the ways that I explain below. However, it does not follow that I am in a position to accept LOR's contention that Mr Chatwin was, in fact, the sole decision-maker and this is a matter that, regrettably, will need to be remitted. 282 Before turning to address my reasons for so finding, it is necessary to set out the relevance of the findings as to whether Mr Chatwin was the decision-maker within the statutory framework of Part 3-1 of the FW Act. It is also necessary to address the authorities that are binding on me as to corporate decision-making within the context of applications made under that Part. F.7.1 Relevance of the findings as to whether Mr Chatwin was the decision-maker 283 Mr Haley claimed that LOR had engaged in adverse action contrary to s 340(1)(a)(ii) of the FW Act by terminating his employment because he had exercised workplace rights by making various complaints in relation to his employment. Relevantly, s 340(1)(a)(ii) provides that: Protection (1) A person must not take adverse action against another person: (a) because the other person: … (ii) has, or has not, exercised a workplace right… 284 Section 342(1) of the FW Act defines "adverse action" to include dismissal from employment. There was no dispute that LOR had engaged in adverse action by dismissing Mr Haley from his employment, but LOR denied that it had done so because Mr Haley had exercised workplace rights. 285 Section 341(1) of the FW Act sets out the circumstances in which a person has a "workplace right". Mr Haley had alleged that he had exercised various workplace rights. Although the primary judge did not accept every alleged exercise of a workplace right pleaded by Mr Haley, the primary judge found that Mr Haley had exercised some of the workplace rights that he had pleaded by making "three sets of" complaints and inquiries in relation to his employment: PJ [614]. It followed that Mr Haley had exercised workplace rights for the purpose of s 341(1)(c)(ii) of the FW Act: PJ [614]. It is unnecessary to set out these findings as LOR did not challenge them. 286 The effect of the primary judge's findings that Mr Haley had exercised workplace rights in relation to his employment meant that the central issue before the primary judge in relation to the adverse action claim was whether the relevant adverse action (being Mr Haley's dismissal) was taken because of the exercise of those workplace rights. The primary judge's consideration of this causal question was informed by ss 360 and 361 of the FW Act which provide as follows: 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 287 The relevant question as to whether an employer has taken adverse action because of an exercise or proposed exercise of one or more workplace rights (as defined) is a question of fact. A respondent will often seek to rebut the statutory presumption in s 361(1) by calling evidence from the relevant "decision-maker(s)" as to the reason(s) for taking the action and denying that it was done so for reasons including the proscribed reason(s). In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [44]-[45], French CJ and Crennan J (with whom Gummow and Hayne JJ agreed at [71]) stated: [44] … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?". [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (Emphasis and additional emphasis added). 288 In Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243, Gageler J stated at [85]: Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual. (Emphasis and additional emphasis added). See also BHP Coal at [7] (French CJ and Kiefel J); Barclay at [146] (Heydon J). 289 The principles enunciated in Barclay and BHP Coal are not without complexity in their application to a body corporate in the context of one or more variants of decision-making processes that are often involved in the making of decisions pertaining to the employment of a person. Neither Barclay nor BHP Coal concerned the anatomy of corporate decision-making in such instances: Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 at [31] (Katzmann, Charlesworth and O'Sullivan JJ) (Wong FFC); Wong v National Australia Bank Ltd [2021] FCA 671 at [91] (Snaden J) (Wong 1). Both Barclay and BHP Coal were "bright-line" cases where it was either accepted or found that a single person was the relevant decision-maker on behalf of the respective corporations and whose states of mind were therefore dispositive of the "central question" in each case. The answer to the "central question" is more problematic where there is either no single decision-maker, or where the relevant acts or conduct are the product of a collaborative or other group-based decision-making process. Even where there is a single identifiable decision-maker, it may be "'artificial to maintain any bright-line distinction' between the decision-maker's reasons, and contextual influences that might bear on it, being a fact-dependent analysis": Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34 at [201] (Bromberg, Bromwich and Rangiah JJ) (Qantas Airways FFC); Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 at [223]-[233] (Lee J) (Qantas Airways 1). 290 The complicated and fact-dependent issues that can arise in these situations have been addressed in previous decisions of this Court and the Australian Industrial Court in the context of applications under Part 3-1 of the FW Act and similar provisions under earlier industrial enactments. These decisions include (without being exhaustive) Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 172 CAR 1073; Wood v City of Melbourne Corporation [1979] FCA 42; (1979) 26 ALR 430; Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198; Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 (RMIT); Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166; Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098; Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332; Qantas Airways 1 and Qantas Airways FFC; Wong 1 and Wong FFC; and Pilbrow v University of Melbourne [2024] FCA 1140. 291 In Wong 1, Snaden J expressed reservations about reconciling the previous authorities of this Court including Kodak, RMIT, Clermont Coal and Australian Red Cross with the decisions of the High Court in Barclay and BHP Coal: at [88] and [91]. His Honour in substance considered that in seeking to interrogate a corporation's decision-making processes, and the reasons that may have actuated different persons within a corporation, there was a risk that the Court would be embarking upon an examination of the "unconscious" reasons of the corporation. On this topic, Lee J in Qantas Airways 1 examined Snaden J's reasons in Wong 1, and stated at [232]-[233]: [232] If there is a case at Full Court level where the issue of whether a person who is involved in the process leading to the decision was a decision maker for the purpose of a proscribed purpose was decisive, and it was argued that the relevant reasoning in Kodak was plainly wrong, then it will no doubt be necessary for a Full Court to evaluate the points usefully raised by Snaden J. A formal submission was not made in this case that Kodak was wrongly decided (although it was sought to be distinguished) and, although I will make relevant findings, for reasons I will explain, the case does not ultimately fall to be decided only by whether a person other than Mr David, materially involved in the process leading to the outsourcing decision, was motivated by a proscribed purpose. [233] It suffices to note, for my part, the point is not without difficulty but at least in some cases, it may be artificial to maintain any bright-line distinction between a person's reasons for doing something and contextual influences that might bear upon the reasoning process and its result. This is not to suggest an objective test be adopted, nor the taking into account of any unconscious reasons (and hence detract from the principles explained in Barclay). But some decisions (like in Leahey) are the culmination of a long process involving the input of others. It is easy to conceive of cases where influences which may be characterised as "contextual" may matter, and subjectively bear upon a reasoning process. It all depends. Every decision is made in a context and is the work of a human actor; and decisions can be complex things involving the application of rational thought, but can also involve confusion and illogicality that are part of the human experience. In the end it is all a fact dependent analysis. In any event, it is unnecessary to explore these issues further. (Emphasis added). 292 On appeal, the Full Court in Qantas Airways FFC dealt with a Notice of Contention raised by the Transport Workers' Union which contended that Lee J ought to have applied Kodak in order to find that there were other persons who had made an indispensable contribution to the ultimate decision that was impugned in that litigation. In rejecting this contention, the Full Court considered whether there was any inconsistency between, on the one hand, the decisions in Barclay and BHP Coal and, on the other, Kodak and Australian Red Cross. The Full Court stated at [228]: Properly considered, there is no necessary inconsistency between Kodak or Australian Red Cross on the one hand, and Barclay or BHP Coal on the other, with the High Court in the latter two cases dealing with a different issue pertaining to the acceptance of evidence adduced by an employer to discharge the onus in s 361(1). It remains, however, for the TWU to show that the primary judge erred in not applying Kodak-type reasoning to this case in relation to the proscribed reason found to be held by Mr Jones, and more equivocally by Mr Hughes. 293 More recently, the Full Court in Wong FFC considered the doubts that had been expressed by Snaden J in Wong 1 as to whether the earlier authorities of this Court could be reconciled with Barclay and BHP Coal, and found them to be unwarranted: at [29]-[41]. In so concluding, the Full Court observed that Snaden J had been correct to observe that both BHP Coal and Barclay illustrate the distinction between "a person's reasons for doing something and the contextual influences that might bear in some way on those reasons": at [32]. However, the Full Court reasoned that it was necessary to address the antecedent question as to whether the involvement of another person in the making of a decision was merely a contextual influence, or something more than that: at [32]. The Full Court examined the previous authorities of this Court and observed at [25]-[26]: [25] … Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who "played the decision-making part in the joint administrative activities" culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the "decision-maker" but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them. [26] The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation's reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind. (Emphasis added). 294 As examined by the Full Court in Wong FFC, the previous decisions of this Court and the Australian Industrial Court applied different formulations in seeking to identify or determine the person or persons who were relevantly involved in an impugned decision including by identifying them as those who had made the "essential and material" decision (Voigtsberger at 205), those who had an influence on the ultimate decision, those who had made the effective decision by the making of a recommendation that had been rubber-stamped (General Motors-Holden at 1079), those who had made an "indispensable contribution" to the decision or whose contribution had been "inadvertently adopted" without "independent thought or analysis" (Kodak at [37]), or those who had a "a material effect on the ultimate outcome" (Clermont Coal at [121]): see also Pilbrow at [77]-[78]. Importantly, the Full Court in Wong FFC concluded at [37]-[40], as the Full Court had in Australian Red Cross, that it was unnecessary to adopt a single verbal formula or test. 295 It may be that these various formulations as expressed in previous authorities of this Court reflect fact dependent manifestations of an application of the rules of attribution and aggregation. It may further be the case that these formulations, as a whole, appeal to rules of attribution and aggregation as their central organising principle. However, if they are to be seen as such, it will become necessary to identify the process of construction, and divine the "statutory rule", from the FW Act by which they are to be so organised: e.g., see Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [98] (Edelman J; Allsop CJ and Besanko J concurring) and [63]-[66] (Allsop CJ); see also Reynolds D, "Corporate Knowledge: The Search for the Relevant Mind(s)" (2018) 92 ALJ 991 at 997-1004; and Eastwood A, "Corporations and the Aggregation of Knowledge" (2013) 87 ALJ 553. If they are not to be seen as being organised within those concepts and principles, it may become necessary to identify the other process of construction and/or statutory rule by which corporations are held liable under the FW Act by the attributed and aggregated acts and states of mind of particular officers, employees or agents. In this regard, it should be borne in mind that s 793 of the FW Act is facilitative and not normative. However, it is unnecessary to further consider these matters. In the present case, neither party contended that the earlier decisions of this Court were incorrectly decided, or should not be followed. Both parties contended that I should apply the law as expressed in Wong FFC. In those circumstances, it is these principles which need to be addressed in ascertaining whether the primary judge erred. 296 One further matter should be noted. It follows from the principles discussed in Wong FFC that it is not necessary for LOR to have called evidence from every person involved in the decision-making process(es). This approach to the operation of the onus in such cases was rejected by Lee J in Qantas Airways 1 at [234]-[236]. As Lee J reasoned there at [235], it is "important not to misunderstand Kodak and Clermont Coal". Those earlier cases were ones where it was found that the involvement of others had "a material effect on the ultimate outcome" (Clermont at [121] (Reeves J)) or made an "indispensable contribution" to the outcome (Kodak at [37] (Lee, Madgwick and Gyles JJ)). Lee J explained at [236] that a requirement to call evidence from every person involved in the decision-making process "would also be contrary to principle and unworkable". 297 I agree with the observations made by Lee J. An approach contrary to Lee J's reasoning would lead to the application and operation of the onus cast by s 361 in a way that raises, in part, the concerns expressed by Snaden J in Wong 1. Such an approach would lead to a wide-ranging inquiry into the conduct and states of mind of persons within a corporation that could have no ultimate bearing upon the central question at hand as expressed in Barclay at [44]. To do so would involve straying well beyond ordinary principles of corporate attribution and aggregation in a way not justified by any statutory rule contained in the FW Act: see, generally, in a different statutory context, New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120 at [106]-[116] (Bromwich, Raper and Shariff JJ); see also, generally, Reynolds (2018); and Eastwood (2013). F.7.2 The evidence called by LOR 298 In the present case, the onus fell upon LOR to establish that the reason or reasons for the termination of Mr Haley's employment did not include any proscribed reason (being because Mr Haley had exercised one or more workplace rights). 299 LOR sought to discharge that burden by calling evidence from Mr Chatwin to the effect that he made the decision to terminate Mr Haley's employment and that his reasons for so deciding did not include one or more of the proscribed reasons. In an initial affidavit filed on 28 June 2021 (First Chatwin Affidavit), Mr Chatwin gave the following evidence: 38. On 24 July 2020, I sent a letter to Mr Haley (termination letter) advising him that his employment with [LOR] had been terminated on the grounds of serious misconduct, with immediate effect… 39. I made the decision to terminate Mr Haley's employment summarily for the following reasons. 40. First, I formed the view that Mr Haley's conduct, as reflected in the findings made by the investigator regarding his behaviour during the incident on 2 and 3 July 2020 and the resulting breaches of the Code of Conduct and Travel Policy, constituted "conduct that causes imminent and serious risk to ... the reputation" of Laing O'Rourke, for the purposes of section 4, clause 2(b) of Mr Haley's contract of employment. The Bushfire Project and LORAC's appointment as the lead contractor for the Project received a significant amount of publicity and media coverage. As a result, it was a very important project for the company. Moreover, many of the residents who lived in the areas in which the clean-up works were being undertaken had experienced significant trauma and hardship as a result of the fires. Mr Haley's decision to use such offensive and profane language towards members of one such community reflected incredibly poorly, not only on himself but also on LORAMS and the Laing O'Rourke name and brand that he was representing. I thought it was likely that, having taken the time and effort to make a complaint to Laing O'Rourke regarding Mr Haley's conduct and that of his colleagues, [Mr and Ms Pointon] had told others in their community about the events of 2 and 3 July 2020. 41. Second, it seemed clear to me that Mr Haley had not been candid and truthful in the information that he had provided to the investigator in the course of the investigation. For example: (a) In his written and oral statements, Mr Haley had consistently denied that he had used offensive language towards [Mr and Ms Pointon], even though his voice could be heard on a sound recording that had been taken on the night of the incident. As stated in the termination letter, at the outset of the show cause meeting on 22 July 2020, Mr Haley admitted that he did in fact say the words that the investigator found had been directed to the complainants. (b) Mr Haley's admission indicated to me that his earlier statements to the investigator that the allegations against him were "false and malicious" and "untrue" were themselves false, and that Mr Haley knew those statements were false at the time that he made them. (c) Similarly, Mr Haley had made statements to the investigator to the effect that he had been subjected to a serious physical assault by [Mr Pointon], for which [Mr Pointon] should face criminal charges. However, as stated in the termination letter, Mr Haley later admitted during the show cause meeting that he had not been physically attacked by [Mr Pointon] and that he did not consider [Mr Pointon's] conduct to be sufficiently serious to warrant reporting the matter to the Police or to LORAMS. 42. In my view, Mr Haley's conduct described in the preceding paragraph constituted "wilful or deliberate behaviour that [was] inconsistent with the continuation of [his] employment" within the meaning of section 1, clause 2(a) of his contract of employment, in at least two respects. First, it comprised a serious breach of trust, which meant that I could not have any confidence going forward that Mr Haley would discharge his duties as Commercial Leader in a transparent and honest manner. And second, it revealed that Mr Haley, as a senior manager within the company, was either unwilling or unable to set an example to his more junior colleagues by owning up to his errors and by demonstrating a proactive and constructive approach to resolving the problem. 300 Further, and importantly, in the First Chatwin Affidavit, Mr Chatwin addressed each workplace right that Mr Haley had alleged he had exercised, and denied that they played any part in his decision to terminate Mr Haley's employment. 301 At some point after the First Chatwin Affidavit was served and in advance of the trial before the primary judge, Mr Haley made an application for leave to issue subpoenas directed to 13 persons to give evidence in the trial. The primary judge gave reasons for refusing to grant that application in the Subpoena Judgment. Mr Haley sought leave to issue the subpoenas because, amongst other things, he contended that the First Chatwin Affidavit disclosed that "there were more than 20 people involved in the 'investigation and disciplinary process' that led to [LOR]'s termination of Mr Haley's contract of employment" and that there were "contradictions between Mr Chatwin's affidavit and the contemporaneous evidence about the identity of the decision makers": Subpoena Judgment at [15]. Mr Haley contended that, in particular, the credibility of Mr Chatwin needed to be "tested by questions being asked of those decision makers about their involvement in the decision to terminate Mr Haley's contract of employment": Subpoena Judgment at [15](c). 302 In opposing the grant of leave, LOR filed a further affidavit of Mr Chatwin dated 10 August 2022 (Second Chatwin Affidavit) in which he deposed as follows: 6. … shortly after the show cause meeting concluded, I discussed the matter with Mr Cashin and we agreed that, given the seriousness of the issue at stake, some time would need to be allocated to reflect and deliberate on the matter before coming to a decision. Given my responsibilities within the organisation as the Functional lead (while Mr Cashin was the Operations lead) and my direct involvement in the earlier written communications with Mr Haley in relation to the events after the incident on 2/3 July 2020, it was agreed that I would take on the role of sole decision maker, go away, reflect on all of the material referred to in the investigation report and subsequent discussions with Mr Haley, and form a view about what should, or should not, be done. Thereafter, Mr Cashin ceased to have any involvement in the outcome of the show cause process. As a consequence, in the period after the show cause meeting on 22 July 2020, it became my sole responsibility to determine, for and on behalf of the Respondent, what action would be taken in relation to Mr Haley, including whether he would remain employed or be terminated. The decision that I ultimately reached and the reasons for that decision are as set out in paragraph 38 - 42 of my First Affidavit. 7. It is accordingly not correct for Mr Haley to assert that Mr Cashin was a decision maker in relation to Mr Haley's dismissal. It is also incorrect for Mr Haley to assert that Ms Fraser was a decision maker. In her role as General Manager, People, Ms Fraser exercised some oversight in relation to the conduct of the investigation, but she did not make the decision to dismiss Mr Haley and I did not have any communications with Ms Fraser regarding the action to be taken against Mr Haley prior to his dismissal. 8. It is also not correct for Mr Haley to assert that Mr Bates was a decision maker. In his role as the Respondent's Head of Industrial Relations and Human Capital Operations, Mr Bates exercised some oversight in relation to Mr Curnow-Rose who was charged with undertaking the investigation, but he did not make the decision to dismiss Mr Haley. 9. I gave a great deal of thought and consideration to the various aspects of the matter when exercising my role as the decision maker. I was aware that my role as the sole decision maker carried a great deal of responsibility and that there might be serious consequences for Mr Haley and his family if I were to decide that Mr Haley's employment should be terminated. 10. While some of the 13 persons referred to in paragraph 2 of this affidavit played either some part in investigation of the incident on 2 and 3 July 2020 or might otherwise have provided internal support services or performed some responsibility either as a support person or point of contact, none of the 13 played any role in the decision that I made to determine the outcome of the show cause meeting, and the decision that I made, for and on behalf of the Respondent, to terminate Mr Haley's employment. 303 LOR read the Second Chatwin Evidence at the trial and relied upon Mr Chatwin's evidence to establish that he was the sole decision-maker in relation to the dismissal of Mr Haley. F.7.3 The primary judge's findings 304 The primary judge's findings and reasons as to why he was not satisfied that Mr Chatwin made the decision to terminate Mr Haley's employment are recorded at various points throughout the primary judgment including at PJ [27], [503] and [615]. The primary judge's findings and reasons in this regard were repetitive and, at times, not clear. 305 In essence, the primary judge concluded that the decision to summarily terminate Mr Haley's employment was not Mr Chatwin's to make and, instead, it was in the hands of Mr O'Rourke. To this end, at PJ [27] the primary judge stated: Finally, just in case this may be lost in the mass of evidentiary material with which these reasons deal, it is necessary to note here that I find later in these reasons that the effect of the evidence Mr Chatwin gave under cross-examination is that LOA's decision to summarily dismiss Mr Haley from his employment was not Mr Chatwin's to make; the power to make that decision rested in the hands of LOA's managing director, Mr Cathal O'Rourke. And LOA has not only not called Mr Cathal O'Rourke to give evidence; Mr Chatwin has not given any evidence that he had in fact met Mr Cathal O'Rourke after Mr Chatwin (as he says) made the decision that LOA should summarily dismiss Mr Haley from his employment. (Emphasis and additional emphasis added). 306 At PJ [496] (under the heading "Conclusion on Mr Chatwin's evidence"), the primary judge concluded: I do not accept the evidence Mr Chatwin gave in either of his affidavits to the extent he there intends to depose that he, or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment… 307 The reasons given by the primary judge at PJ [496](a)-(c) for this conclusion were that: First, Mr Chatwin did not disclose in his affidavit evidence that it was within his knowledge to give that was relevant to the implied and then express assertions he made in his affidavits that he, and he alone, made the decision that LOA should summarily dismiss Mr Haley from his employment. That evidence was the conversations Mr Chatwin in the evidence he gave under cross-examination he said he had with Mr Cathal O'Rourke, and the role Mr Chatwin understood Mr Cathal O'Rourke played in relation to LOA's decision to summarily dismiss Mr Haley from his employment. It would be convenient only to refer to one such item of evidence, namely, that Mr Chatwin considered he had "a duty to inform [Mr Cathal O'Rourke] of the decision"; and that Mr Cathal O'Rourke, "as the ultimate managing director of the business, of course, has the right of objection or the right to request more information". Mr Chatwin's unexplained omission of such relevant evidence to the assertions Mr Chatwin made in his affidavits prevent me from giving any credit to the assertions Mr Chatwin made in his affidavits. Second, there is the email Ms Byrne sent at 5:07 pm on 22 July 2020, requesting a payment estimate for Mr Haley based on his employment being terminated without notice effective on 24 July 2020. Unexplained, and LOA has called no evidence to explain it, Ms Byrne's email suggests that a person or persons within LOA, other than Mr Chatwin, had by then decided that Mr Haley would be summarily dismissed from his employment, effective on 24 July 2020. That is inconsistent with Mr Chatwin's evidence that after the Show Cause Meeting he deliberated until the morning of 23 July 2020, at which point he made the decision that LOA should summarily dismiss Mr Haley from his employment. Third, Mr Chatwin gives no evidence about the person or persons who prepared the Termination Letter; or whether Mr Chatwin had any role in providing information that found its way into the Termination Letter. The only evidence that relates to these matters is the Post Show Cause Meeting Documents. Unexplained, and LOA has not sought to explain them by adducing any evidence from Mr Chatwin, or from Ms Byrne, Mr Sleeman, Mr Bates, or Ms Fraser, the Post Show Cause Meeting Documents suggest the Termination Letter was drafted by Mr Sleeman on the basis of the CB Notes of Meeting, and Mr Chatwin became aware of the contents of the Termination Letter at 4:54 pm on 24 July 2020 when Mr Sleeman sent to Mr Chatwin an email attaching the Termination Letter, 15 or so minutes before 5:09 pm on 24 July 2020 when Mr Chatwin sent the Termination Letter to Mr Haley. 308 At PJ [499], the primary judge reasoned that it was "open to find" on the basis of evidence given by Mr Chatwin during his cross-examination that "the person in whose power it was to decide to summarily dismiss Mr Haley… was Mr Cathal O'Rourke [and] who so decided". 309 At PJ [503], the primary judge again repeated his finding that Mr Chatwin was not the person who made, or who alone made, the decision that LOR summarily dismiss Mr Haley. 310 And, finally, at PJ [504] and [506], his Honour stated as follows: If it were necessary to determine who, if not Mr Chatwin, made the decision to summarily dismiss Mr Haley from his employment, I would determine that it was Mr Cathal O'Rourke. Such a finding could hardly be surprising. Mr Haley was a senior executive on an annual salary of over $400,000. That means there was a high financial and possible reputational risk to LOA summarily dismissing Mr Haley because, as in fact occurred, that decision could be challenged, and moreover, if successfully challenged, could have potentially significant adverse financial consequences for LOA. Given these risks, it is improbable that the power to make such a decision would be conferred on a person in the position of Mr Chatwin; it is much more likely that the person wielding ultimate power within LOA would make that decision; and the person who on the evidence had that power was LOA's managing director, Mr Cathal O'Rourke. … LOA had the opportunity to adduce evidence to prove Mr Chatwin had the power to summarily dismiss Mr Haley on behalf of LOA; but LOA did not do so. LOA went no further than filing two affidavits by Mr Chatwin, which I have not accepted to the extent that it deposes he was the person who decided that LOA should summarily dismiss Mr Haley from his employment, and to the extent it represents that the reasons for which he asserted he had decided that LOA summarily dismiss Mr Haley from his employment were reasons he himself had formulated. (Emphasis added). 311 The primary judge's conclusion was that he was not satisfied, on the evidence, that Mr Chatwin made the decision to terminate Mr Haley's employment, or did so alone. However, there were two distinct findings wrapped up in the primary judge's conclusion that it was not Mr Chatwin, or Mr Chatwin alone, who made the decision to terminate Mr Haley's employment. The first was that it was not Mr Chatwin at all who made that decision. The second is that it was not Mr Chatwin alone who made the decision to terminate. The former characterisation finds support in the first sentence of the primary judge's finding at PJ [497] that: I am also not satisfied that Mr Chatwin jointly decided with another person or other persons that LOA should summarily dismiss Mr Haley from his employment. To the extent Mr Chatwin was involved in the decision to summarily dismiss Mr Haley from his employment, I would not accept that, at the time he was involved in any such decision, Mr Chatwin had formulated as his own reasons for doing so the reasons which, in his first affidavit, Mr Chatwin asserts were the reasons for which he decided to summarily dismiss Mr Haley's employment. (Emphasis added). 312 However, the second sentence of PJ [497] indicates that the primary judge considered that Mr Chatwin may have been involved in the decision to terminate Mr Haley's employment. This characterisation also finds support in the primary judge's reasons for rejecting a submission made by LOR that Mr Chatwin had not "simply assumed the truth of information that was provided to him by others" and had made that decision on an independent basis. The primary judge stated at PJ [502] that: This submission assumes I have accepted Mr Chatwin alone decided that LOA should summarily dismiss Mr Haley from his employment. I have not accepted this proposition… 313 This passage indicates that the primary judge considered that Mr Chatwin had not made the decision alone, suggesting that the primary judge considered that Mr Chatwin was at least involved in making that decision. 314 Therefore, it appears that the primary judge's ultimate conclusion was that Mr Chatwin: (a) did not make the decision to terminate Mr Haley's employment; and (b) to the extent that he was involved in the decision, he was not the only person so involved. 315 The primary judge returned again to these findings in determining that LOR had not rebutted the statutory presumption contained in s 361 of the FW Act. It is necessary to set out the primary judge's reasons at PJ [615]-[617]: LOA submitted that Mr Chatwin, and Mr Chatwin alone, was the person who decided that LOA should summarily dismiss Mr Haley. For the reasons I have already given I have not accepted the evidence Mr Chatwin gave that he, or that he alone, decided that LOA should summarily dismiss Mr Haley from his employment. Further, to the extent Mr Chatwin did play any role in LOA's decision to summarily dismiss Mr Haley from his employment, I am not satisfied that by the time LOA purported to terminate Mr Haley's employment: (a) Mr Chatwin had brought to his consciousness as the reasons for terminating Mr Haley's employment: (i) the reasons stated in the Termination Letter on which LOA purported to rely for purporting to terminate Mr Haley's employment; or (ii) the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment; or (b) to the extent Mr Chatwin did bring to his consciousness any of the reasons referred to in (a), his having done so was the product of anything other than adopting the views another person or other persons had formulated. It follows that LOA has not adduced evidence from the person or persons who made the decision, or who were involved in making the decision, that LOA should summarily dismiss Mr Haley from his employment; or, to the extent Mr Chatwin had any role in LOA's decision to terminate Mr Haley's employment, LOA has not adduced evidence from the person or persons who purported to formulate the reasons contained in the Termination Letter for LOA's purporting to summarily dismiss Mr Haley from his employment, or from the person or persons who purported to formulate the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment. In those circumstances, I do not accept that LOA purported to terminate Mr Haley from his employment for the reasons on which, in his first affidavit, Mr Chatwin says he relied in deciding to summarily dismiss Mr Haley from his employment, or for the reasons stated in the Termination Letter. LOA, therefore, has not proved that it did not decide to summarily dismiss Mr Haley from his employment because Mr Haley had made complaints and inquiries in relation to his employment and therefore had exercised his workplace rights; and LOA has otherwise not proved that it summarily dismissed Mr Haley from his employment for reasons that did not include as a substantial and operative factor Mr Haley's having made complaints and inquiries in relation to his employment, and therefore having exercised his workplace rights. That means that, by purporting to summarily dismiss him from his employment on 24 July 2020, LOA took adverse action against Mr Haley, in contravention of s 340(1) of the FW Act. (Emphasis added). F.7.4 Consideration (a) Error in reasoning and finding that the decision to terminate was not Mr Chatwin's to make as the power to do so rested in the hands of Mr O'Rourke and that Mr O'Rourke made the decision 316 An essential pathway that the primary judge took in finding that Mr Chatwin did not make the decision to terminate Mr Haley's employment, or did not make that decision alone, was his Honour's conclusion that: (a) the decision to terminate was not Mr Chatwin's to make as the "power" to do so rested in the hands of Mr O'Rourke; and (b) Mr O'Rourke in fact made that decision: PJ [27], [499], [501](b) and [504]. 317 In making, and arriving at, these findings, the primary judge erred. That is because the primary judge conflated two separate but related issues as to, on the one hand, who in fact made the decision to terminate Mr Haley's employment, and, on the other, who may have had the power or the overriding authority to make or alter that decision. 318 The statutory presumption in s 361 of the FW Act cast an onus on LOR to establish that the reason or reasons for Mr Haley's dismissal did not include as a substantial and operative reason any of the proscribed reasons: Barclay at [44]-[45]. This raised questions of fact as to who made the decision, their reasons for doing so, and, most critically, whether those reasons excluded the proscribed reasons. These central questions of fact did not only turn upon which person had the power or authority to make or alter the decision (though those issues could be relevant), but required an assessment of which person or persons in fact made the decision to terminate Mr Haley's employment: Wong FFC at [25]-[26]. This point was addressed recently by the Full Court in Dorsch v HEAD Oceania Pty Ltd [2024] FCAFC 133 (Snaden, Hatcher and Shariff JJ), where their Honours stated at [60]: As the Full Court indicated in Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148, to focus on where legal authority resides when determining whether an adverse action was taken by a corporate entity is apt to mislead. There, in the context of decision-making based on information or advice given by another person, the Court stated at [26], "it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information or advice". Here, the general point is the same. Once it was accepted that Mr Skrobanek was the person who was determining whether Mr Dorsch's employment should be terminated, and had such authority and exercised it, it was beside the point whether he had the legal authority to give effect to that decision by implementing it. In any event, as we have pointed out, there was no challenge to the fact that the termination was validly effected. 319 It followed that the question of fact as to who made the decision to terminate Mr Haley's employment was a separate, though related, issue to who had the power or authority to do so. 320 Here, the primary judge concluded that he was not satisfied that LOR had discharged its onus of establishing that Mr Chatwin had made the decision to terminate Mr Haley's employment, and did not accept Mr Chatwin's evidence to that effect: PJ [498]. Although the primary judge framed the resolution of this factual question as one of onus, it is clear that an essential basis upon which the primary judge rejected LOR's case was because his Honour concluded that it was Mr O'Rourke who had the power and authority to make the decision (PJ [27], [499], [504]) and that this decision "was not Mr Chatwin's to make" (PJ [27]). 321 In my view, the evidence before the primary judge did not support the conclusion that, even if Mr O'Rourke had the power or authority to make or alter the decision to terminate Mr Haley's employment, it thereby followed that Mr Chatwin had not, in fact, made that decision, and that the decision was made by Mr O'Rourke: cf PJ [499]. 322 To explain how the primary judge erred, it is necessary to consider the evidence upon which his Honour relied to reason that the decision was not Mr Chatwin's to make. 323 The first item of evidence upon which the primary judge relied to reason that the decision to terminate was not Mr Chatwin's to make was a text message that Mr Chatwin had sent to Mr Haley at 10:01 am on 13 July 2020 in which he stated (PJ [294]): Hi Tom, just wanted to reach out to check you are ok, probably best we don't speak because of the investigation, I'm just back from one week off, a holiday I really needed. I was told not to contact you and let the investigation take place when I didn't hear from you the day after the event and cathal then said he would oversee in my absence which means I have been kept out of the loop until today. (Emphasis added). 324 The primary judge found Mr Chatwin's evidence about this email to be unsatisfactory. That is because, as set out at PJ [296], when Mr Chatwin was asked whether he understood that Mr O'Rourke had overseen the investigation in the week that Mr Chatwin was on holidays, Mr Chatwin said that this was a "mischaracterisation" of Mr O'Rourke's role. Mr Chatwin explained that Mr O'Rourke's role was to "probably nothing more than just being available and making sure that the process is happening, and that the complaint is being responded to" and that he guessed that "Cathal was there just for any ad hoc issues that might arise". The primary judge did not accept Mr Chatwin's evidence that the words "would oversee" (as appeared in his text message to Mr Haley) was a "mischaracterisation" of Mr O'Rourke's role in the investigation: PJ [298]. The primary judge found that the word "oversee" conveyed a "clear meaning" that Mr O'Rourke would "supervise the purported investigation". 325 However, even if, as found by the primary judge, Mr Chatwin had given an unsatisfactory response to a question about the meaning of the words "would oversee", the relevant text message established only that it was intended that Mr O'Rourke would oversee the investigation for the period that Mr Chatwin was away on holidays. The evidence was both limited as to its subject matter (the investigation and not the decision to terminate) and as to time (the period Mr Chatwin was away on holidays). By itself, this item of evidence did not establish that the decision to terminate Mr Haley's employment did not rest with Mr Chatwin and that it rested with Mr O'Rourke. Nor did it establish one way or the other who, in fact, made the ultimate decision. 326 The second item of evidence upon which the primary judge relied was the fact that Mr Chatwin inserted a comment into a draft of the Show Cause Letter as follows (PJ [300]) (the Notation): Is it possible to say that we are considering this or say there is a high probability that due to the above and Tom's conduct and unwillingness to confirm facts or apologise for actions during the investigation that we may terminate. I haven't concluded any discussions with Cathal yet that our view is to terminate. This is where if possible we could add in our disappointment on Tom's behaviour during the investigation, maybe this is where I state my own personal frustrations if the letter is to come from me. (Emphasis in original). 327 It was unclear whether Mr Chatwin's references in the Notation to the collective pronouns ("we" and "our") were reflective of the fact that: (a) Mr Chatwin was at that time settling a letter that had been drafted by others and they were working together as a team in that sense; (b) Mr Chatwin would be making a decision for and on behalf of LOR; or (c) the decision was to be jointly made by several individuals including Mr O'Rourke. Mr Chatwin was cross-examined about the Notation and was also asked questions by the primary judge about this topic. Mr Chatwin gave the following evidence: Do you read those words, Mr Chatwin?---Yes. When what you refer to discussions with Mr Cathal O Rourke. What discussions were they and when did they occur, Mr Chatwin, or what discussions are you referring to?---So first, can I just clarify that on the on page 1269, that I was responding on the basis that I hadn't concluded termination as of today. Okay?---So at that point, the it was written as if we were heading to that point. As decision-maker, I had not concluded that. I understand - - -?---I needed to hear from you face to face. I needed to hear your thoughts on all the various questions that I had. You had a statement you wanted to read. So I hadn't concluded that, and as I mentioned, I think on Wednesday, following that, I hadn't then informed Cathal of my decision for his then final comments you know, final comments as MD. If someone if we re terminating someone out of the business, that s my duty, to inform Cathal. So it's poor wording from me, our - in effect, our recommendation, and it shouldn't even be - where was it our view is to terminate, so yes, decision to terminate. HIS HONOUR: Well, why do you say that s poor expression? What did you intend by - - -?---Just that it is our view to terminate, our as in a collective of people. Ultimately, I had to make that call. But yes, all right, but you've given evidence that you were the sole decision-maker - - -?---Yes. - - - and I should read our as me ---As me, yes. All right - - -?---Yes, that s what I m saying. ..... I should have said I, my view. MR HALEY: Okay. THE WITNESS: But I am taking a lot of advice from people here. I m taking a lot of information - - - MR HALEY: Who are people, Mr Chatwin? Could you name them all?---All the people involved in this, Dan - - - So you re only - - - MR JEDRZEJCZYK: Sorry, can the - - - MR HALEY: Okay, that s all right. MR JEDRZEJCZYK: - - - witness please be allowed to answer, your Honour? MR HALEY: Sorry, Mr Chatwin. HIS HONOUR: Yes, of course. Thank you ..... That s well made, Mr Jedrzejczyk. THE WITNESS: Dan and Dane the people that were sending me the letter, basically, and then, we've got Simon Barrett as well, providing legal advice. So yes, I don t want to get this wrong. I want to listen to what people are saying is the correct process for this. So yes, and I was actually kind of stopping the process to say to remind everyone that I'm the decision-maker, I haven't made up my mind. As of that day, I had not concluded that Tom Haley should leave the business or be sorry, be terminated. (Emphasis added). 328 As is apparent from the above, the effect of Mr Chatwin's evidence was that he was to be the only decision-maker and the Notation was poorly expressed on his part. However, the primary judge stated at PJ [301]-[302] that Mr Chatwin "did not immediately attempt to answer the question" about the Notation. It appears to me that Mr Chatwin in his immediate response to the first question extracted above was to seek to clarify the context of the relevant document. Despite this, the primary judge stated that for this and other reasons he was not satisfied that Mr Chatwin had "endeavoured to give the best evidence which, on his current state of recollection, he was capable of giving" about his discussions with Mr O'Rourke as referred to in the Notation: PJ [302]. Further, the primary judge reasoned that Mr Chatwin's evidence was implausible, including because, even if the Notation was read in the way Mr Chatwin said he intended it to be read, it still conveyed that Mr Chatwin had discussions with Mr O'Rourke: PJ [303]-[305]. This was because the primary judge considered that even if the word "our" (as it appeared in the Notation) was substituted with the word "my", the relevant comment would read: "I haven't concluded any discussions with [Mr O'Rourke] yet that [my] view is to terminate": PJ [305]. The primary judge reasoned that this reading did not "make much sense" and that it nevertheless conveyed that Mr Chatwin had discussions with Mr O'Rourke about whether to terminate Mr Haley's employment and those discussions had not yet concluded. 329 It may be accepted that the primary judge had the benefit of assessing the plausibility of Mr Chatwin's evidence as to the meaning conveyed by the Notation. However, the implausibility that the primary judge identified was one that arose from a literal substitution of a collective pronoun with an individual one. Mr Chatwin's evidence was that the Notation was not only poorly worded in a literal sense, but the substance of his evidence was that it was also poorly expressed. The substance of that evidence was that he intended to convey that even though the ultimate decision was his to make, he would discuss the matter amongst a collective of people including Mr O'Rourke to keep him informed and get his comments. His evidence was that as at the time he was settling the Show Cause Letter, those discussions with Mr O'Rourke had not yet concluded. 330 Further, in assessing Mr Chatwin's evidence about the Notation, the primary judge did not have regard to the covering email that Mr Chatwin had sent at 5:49 pm on 20 July 2020 which attached his comments on the draft Show Cause Letter and included the Notation. In that covering email, Mr Chatwin had stated: Hi all, I have some comments on the letter attached marked in tracked changes, as this is coming from me and we are confirming this is a preliminary recommendation, I would like to re-state the disappointment in the recommendation section on Tom's conduct post the incident — would welcome your thoughts. Until I hear from Tom in the face to face and see his final response to this, I'm still not sure if I would be concluding termination as of today, so I'm not sure we should say that is our preliminary conclusion, I've put some notes, I think we should sign post that based on the investigation, Tom's conduct during the investigation, that there is a high probability of termination. There are a couple of uses of the term abuse which isn't a term alleged by the Complainants in the complaint, so I think we should avoid that term — I think it's unnecessary. We aren't testing if Tom has abused the Complainants. I'm free to chat through this evening. Also when signing off the letter it should be yours sincerely rather than yours faithfully. (Emphasis added). 331 The covering email again used both the collective ("we") and individual ("I" and "me") pronouns. More importantly, the covering email indicated that until Mr Chatwin had heard from Mr Haley "face to face", Mr Chatwin was "still not sure" that he would be concluding that Mr Haley's employment should be terminated. This was consistent with Mr Chatwin's evidence that the decision to terminate was his to make, though he would be talking to and consulting with others about that decision, including Mr O'Rourke. 332 Even if the covering email, together with the Notation, were read as meaning that Mr Chatwin had not yet concluded his discussions with Mr O'Rourke as to the decision to terminate, this only established Mr Chatwin's state of mind as at that time. That evidence may have also established, consistent with Mr Chatwin's evidence, that Mr O'Rourke had an overriding authority in respect of the decision to terminate Mr Haley's employment. 333 However, and critically, none of this evidence established that Mr Chatwin did not ultimately make the decision to terminate Mr Haley's employment, or that it was Mr O'Rourke who made that decision. 334 The third body of evidence relied upon by the primary judge was that which Mr Chatwin gave during his cross-examination that he was having, and did have, discussions with Mr O'Rourke about the investigation and the decision to terminate Mr Haley's employment. The primary judge inferred from this evidence that it was Mr O'Rourke who would be making or did make the relevant decision, and was not satisfied that Mr Chatwin made that decision or was giving a fulsome account of his dealings with Mr O'Rourke. 335 The primary judge's examination of this body of evidence is not contained in a single part of the primary judgment. It is therefore necessary to examine the actual evidence relied upon by the primary judge and the way in which his Honour relied upon that evidence. 336 At PJ [307], the primary judge found that Mr Chatwin "eventually accepted… that [he] had discussions with Mr Cathal O'Rourke". In support of this finding, his Honour extracted the following passage of cross-examination (at PJ [307]): MR HALEY: So you had – did you have any discussion with Cathal O'Rourke from receiving the investigation report on the 17th to this email on 20 July?---We talked daily. We talked daily. So you did?---He's my – I can't recall exactly but I'm sure we would have talked about it. We were talking about the thing – this is at the top of my mind. It's the only thing that I'm really – that really matters at that point in time, because it's – because of the sensitivities of it and our relationship. So would I have been – you know, Cathal's there as my line manager to support me. He's not there to make a decision on this. He's not there to influence my decision, and I will say on record he did not do that, but he is there to support me. So we could quite possibly have spoken about it every day during that time. So yes, more than likely, on balance of probability. I can't – as I say, I just don't keep a record of every conversation I had, so I just – I can't say without shadow of a doubt I had had a chat with Cathal, but on the balance of probability, I would have been keeping Cathal aware of where the process is up to, where – I wouldn't tell him what my decision is because I hadn't made it. (Emphasis in original). 337 Pausing here, this evidence supported a conclusion that Mr Chatwin was (as best as he could recall) having regular discussions with Mr O'Rourke and keeping him informed about the developments in the investigation. However, the evidence did not establish that the decision to terminate was not one for Mr Chatwin to make and rested in the hands of Mr O'Rourke. Nor did it establish whether Mr Chatwin had or had not made the ultimate decision to terminate Mr Haley's employment. 338 The primary judge returned to Mr Chatwin's evidence about Mr O'Rourke's involvement later at PJ [432]ff. At PJ [433], the primary judge extracted the following passages of Mr Chatwin's cross-examination (which followed on from the cross-examination extracted above at [336]): And you said you were taking advice from people or from – I can't remember if you said a lot of people, but people. You said those people were Daniel Sleeman, Pat Cashin – Daniel Sleeman, Dane Bates, and you may have said two others. Did you take any advice from Cathal O'Rourke in those discussions on the decision that you were going to take?---No, no. Not at all?---No, Cathal would not overstep the mark and do something like that. So he didn't give you any advice at all on how to play it?---No, no. This is so serious that – you know the – you've been at Laing O'Rourke for 17 years. You know how we operate. I was, yes?---It's – Cathal O'Rourke would not step down into this and disrupt the process. He's too experienced to know that that's not appropriate. He's there supporting me as a line manager. That's his duty and job, and then, when I've made a final decision, it's to inform him of that decision and give him the opportunity to comment, respond, ask for more information, and as an MD, yes, he has got the right to potentially overturn my decision. He has got the keys to the company, so yes. No, Cathal did not influence my decision on this case. That would not be fair process. He is a fair man. He's a fair individual, so no. Okay. So what was the nature of those discussions, those daily discussions, if it wasn't advice?---How are you doing? How are you doing, Simon Chatwin?---How are you doing, Simon, are you okay? Are you okay? You know, what's the latest? Have you come to a conclusion yet? No. Okay, keep me posted and let me know when you've made your decision and we will have a chat. (Emphasis in original). 339 The primary judge then referred to the following answer from Mr Chatwin in response to a question from Mr Haley as to whether Mr O'Rourke "[had] any involvement in the decision to summarily dismiss [Mr Haley] from [his] employment" (at PJ [434]): Okay. So involvement. I had a duty to – if I just provide a bit of a context. I had a duty to inform Cathal of the decision. Cathal, as the ultimate managing director of the business, of course, has the right of objection or the right to request more information. So I had to keep him informed. So to answer your question, yes, he was involved (Emphasis in original). 340 It will be evident that Mr Chatwin's evidence that Mr O'Rourke was "involved" in the decision to summarily terminate Mr Haley's employment was expressed to be on the basis that, as the managing director, Mr O'Rourke had a right of objection and to seek further information. 341 Again, pausing here, the fact that Mr Chatwin was having discussions with Mr O'Rourke, and that Mr O'Rourke was involved in the decision in the way that Mr Chatwin explained, did not establish that the decision was not one for Mr Chatwin to make, or that it was Mr O'Rourke who would be making that decision or did make that decision. The evidence which Mr Chatwin gave was consistent with him keeping the managing director of the company informed about relevant developments. Further, the evidence was consistent with Mr Chatwin discharging his duties on the basis that he considered himself obliged to keep the managing director informed about those developments and acknowledging that any decision he made could be overturned by Mr O'Rourke. That evidence established that Mr O'Rourke had an overriding authority in respect of the management of LOR, including as to the termination of Mr Haley's employment. However, it did not mean that Mr Chatwin would not be making the decision, or that he did not in fact make the decision. Nor did the evidence establish that Mr O'Rourke did in fact make the decision to terminate. 342 The primary judge then referred to the following answers given by Mr Chatwin in response to questions from his Honour (at PJ [435]): HIS HONOUR: Could I just interrupt there. Did I understand you to say – who was the director that you were asking questions in relation to? Mr - - - MR HALEY: Mr Cathal O'Rourke. HIS HONOUR: O'Rourke. Now, you said that he had the right to object. Does that mean you had to consult him before you could make the decision or not?---This kind of – probably just going from experience, this kind of thing, your Honour, is a really big decision to make. Yes?---From the start, I had to keep Cathal O'Rourke informed about this. We had that discussion, that whatever – to terminate an employee of that many years, the managing director will want to know the outcome before the final – if we had made the decision to then proceed to termination, he will always want to now [sic] that's a – whether that's a written rule or an unwritten rule. He would want to know about that decision and be kept informed, and he made that clear to me, that he wanted me to keep him – keep him posted on the final decision. He did trust my decision, he told me that when I informed him of the decision that I had made, and he trusted me in that, and he didn't object to it. But it's his prerogative. He's my boss, at the end of the day, and he's the managing director of the business. So if he wanted, for example, to show discretion - - - He could have?--- - - - he could have done. (Emphasis added). 343 The primary judge also noted that Mr Chatwin answered "correct" to Mr Haley's question that Mr Chatwin had not, in his affidavits, referred to having had discussions with Mr O'Rourke: at PJ [436]. 344 Based on these various passages, at PJ [437]-[438], the primary judge found that: (a) he was not satisfied that Mr Chatwin endeavoured to disclose to the Court the full extent of his recollection of the discussions he had with Mr O'Rourke about whether to terminate Mr Haley's employment; (b) even if he was so satisfied, Mr Chatwin's evidence made clear that it was Mr O'Rourke who had the power to terminate Mr Haley's employment; (c) Mr Chatwin's role was to inform Mr O'Rourke of his "decision" to give Mr O'Rourke "the opportunity to comment, respond, ask for more information, and as an MD, yes, he has got the right to potentially overturn my decision"; and (d) Mr Chatwin's role in the decision-making process relating to the summary dismissal of Mr Haley "was no more than one of recommendation". 345 At PJ [439], the primary judge repeated his finding that the effect of Mr Chatwin's evidence was that Mr Chatwin understood it was within the power of Mr O'Rourke, not Mr Chatwin, to decide whether LOR should summarily dismiss Mr Haley from his employment, and that Mr Chatwin's role did not extend beyond providing a recommendation. 346 At PJ [498]-[501], the primary judge again returned to this topic when dealing with LOR's submissions in the proceedings below that the evidence given by Mr Chatwin did not support a finding that Mr O'Rourke had made the decision. The primary judge concluded as follows at PJ [501]: There are at least four difficulties with this submission: (a) First, it ignores Mr Chatwin's evidence that he was not aware that at 5:07 pm on 22 July 2020, while, Mr Chatwin says, he was deliberating on whether he should decide that LOA summarily dismiss Mr Haley from his employment, Ms Byrne requested a payment estimate for Mr Haley based on his employment being terminated without notice effective on 24 July 2020. Unexplained, and LOA has called no evidence to explain it, Ms Byrne's email suggests that a person within LOA had by then decided that Mr Haley's employment will be summarily dismissed. Moreover, Mr Chatwin accepted in cross-examination that Ms Byrne "was under the control of Helen Fraser in the executive team" who, in turn, reported to "Cathal O'Rourke, the managing director". (b) Second, LOA's submission ignores the effect of Mr Chatwin's evidence, namely, that the decision to summarily dismiss Mr Haley's employment was one for Mr Cathal O'Rourke, not Mr Chatwin, to make. If accepted, the effect of Mr Chatwin's evidence is that, at most, his role was to inform Mr Cathal O'Rourke of the "decision" (in truth, a recommendation) he had made, and it was for Mr Cathal O'Rourke to accept the "decision" and, if so, decide whether LOA should summarily dismiss Mr Haley's employment. (c) Third, Mr Chatwin's opinion about what Mr Cathal O'Rourke would or might do, whether he is or is not a fair person, whether he is a person who would or would not interfere with LOA's process, is not admissible to prove those things, and if admissible, I would not accept the opinion. Nor is Mr Chatwin's opinions about these matters relevant to identifying the conversations Mr Chatwin and Mr Cathal O'Rourke had about the summary dismissal of Mr Haley. It was for Mr Cathal O'Rourke to give evidence about those matters; but LOA did not call him to give evidence. (d) Fourth, the submission ignores the evidence Mr Chatwin gave that Mr Cathal O'Rourke had the discretion not to summarily terminate Mr Haley's employment, even if Mr Chatwin had "decided" that Mr Haley should be summarily dismissed. It is therefore possible that, assuming Mr Chatwin informed Mr Cathal Rourke of his "decision", and he "accepted" Mr Chatwin's "decision", Mr Cathal O'Rourke might yet have decided to summarily dismiss Mr Haley for a substantial reason other than, or in addition to Mr Chatwin's "decision", that Mr Haley be summarily dismissed. 347 These reasons, and the evidence relied upon by the primary judge, did not support the conclusion that the decision to terminate Mr Haley's employment was not made by Mr Chatwin because the power to do so rested with Mr O'Rourke. Nor did it establish that Mr Chatwin's role was one that was confined to making a recommendation. 348 In my view, the evidence that I have reviewed established that: (a) Mr Chatwin felt duty bound to keep Mr O'Rourke informed about the investigation and the other developments; (b) as far as Mr Chatwin could recall, he spoke to Mr O'Rourke regularly, if not daily, and kept him updated and abreast of the developments in the investigation and those that followed thereafter; and (c) Mr O'Rourke, in his position as managing director, could obviously enough alter (including veto) any decision that Mr Chatwin made or ask for further information, or request to further discuss it. 349 At best, this evidence established that Mr O'Rourke had overriding authority to make a decision and to vary any decision that Mr Chatwin made. However, the fact that Mr O'Rourke had authority and the potential to exercise such authority did not establish, as a matter of fact, that Mr Chatwin did not make the decision or that it was not his to make, or that it was one made by Mr O'Rourke. 350 To the extent that the primary judge reasoned to the conclusion (at PJ [501](a)) that Mr Chatwin had not made the decision because Ms Byrne had requested a termination payment schedule to be prepared late in the afternoon of 22 July 2020, the primary judge assumed that Ms Byrne had done so because a decision had already been made by that time. Specifically, the primary judge reasoned that Ms Byrne's email suggested that a person within LOR had by the late afternoon of 22 July 2020 made a decision to summarily terminate Mr Haley's employment. The primary judge sought to draw some significance from the fact that Ms Byrne reported to Ms Fraser who, in turn, reported to Mr O'Rourke. As I explain further below, the evidence that there were documents being prepared in advance of the decision being made established that there were other persons involved in at least the mechanical steps involved in giving effect to the termination or taking preparatory steps toward such a decision being made. This evidence did not establish that the decision was not one for Mr Chatwin to make, or that it rested in the hands of Mr O'Rourke. Nor did it establish that Mr Chatwin had not made the decision. 351 There are further aspects of the primary judge's findings and reasons that warrant consideration. The primary judge found at PJ [27] that Mr Chatwin had not given any evidence that he had in fact met Mr O'Rourke after Mr Chatwin (as he says) made the decision that LOR should summarily dismiss Mr Haley from his employment. However, Mr Chatwin had given the following evidence in cross-examination: So you waited a day and a half after you made your decision to call me and let me know?---Yes. Now, was that because you just had other things to do and forgot and thought, It's nearly the weekend. I had better call him and let him know? Is that the reason?---I think I think we had to I mean, I-I-I could have done. I-yes, I-I could have done, but I had to wait till the final letter was issued to-to let you know, and I had to have the conversation with Cathal as well. I-I can't you know, hour by hour, I-may have had some meetings, of course. I may have had some meetings. Should I have rang you earlier without anything in my my hands to give you, and the reasons? You know, what would that do to you? I think it better that you had everything and understood the reasons why exactly at the same time. So you can question my rationale, but that that's yes, I didn't think to ring you any earlier than that. … You've just said you needed to have the conversation with Cathal - - -?---Yes. - - - after you've made your decision?---Yes. When did you have that conversation?---I think I informed Helen Fraser first at 9.30, 9.30 in the morning, and I scheduled a scheduled a meeting with Helen to let her know, because Cathal wasn't available before then, so I thought I would let Helen know, because Helen was obviously integral to the final letter and everything and needed to be informed as the head of HC. And then I think during that day, I called Cathal at some point and just grabbed him. So I-I don't think there was a scheduled meeting with Cathal. Okay. So we will park up the discussion with Mr O'Rourke just for a second. If I can take you back to document 3.3 in folder 1, Mr Chatwin?---3.3? (Emphasis added). 352 It does not appear that the issue was taken up again during Mr Chatwin's cross-examination. 353 In relation to these matters, the primary judge found at PJ [495] that: Mr Chatwin was not asked in re-examination whether he did in fact have a conversation with Mr Cathal O'Rourke after Mr Chatwin says he made his decision that LOA should summarily dismiss Mr Haley's employment. In those circumstances, although I am prepared to accept, and do accept Mr Chatwin's evidence to the effect that Mr Cathal O'Rourke was the person who was to decide whether LOA should summarily dismiss Mr Haley from his employment, I am not prepared to find that Mr Chatwin met or had a conversation with Mr Cathal O'Rourke after the Show Cause Meeting in which Mr Chatwin communicated to Mr Cathal O'Rourke any "decision" Mr Chatwin had made about whether LOA should summarily dismiss Mr Haley from his employment. The Post Show Cause Meeting Documents, and Mr Chatwin's not addressing any of his evidence in those documents, prevent me from being prepared to draw any such inference. (Emphasis added). 354 Mr Chatwin's evidence, which Mr Haley did not seek to contradict, was that he did have a call with Mr O'Rourke after he had made the decision to terminate Mr Haley's employment. The only basis on which the primary judge rejected this evidence was that Mr Chatwin had not addressed it in the First and Second Chatwin Affidavits. However, it was not put to Mr Chatwin that this evidence was a recent invention or false in some other way. More fundamentally, even if, as the primary judge found, Mr Chatwin did not contact Mr O'Rourke, this did not establish that Mr Chatwin had not made the decision to terminate Mr Haley's employment. 355 It is correct, as the primary judge found, that the First and Second Chatwin Affidavits did not disclose the discussions Mr Chatwin had with Mr O'Rourke. It is also true that Mr Chatwin's evidence in cross-examination as to his discussions with Mr O'Rourke was, at times, vague and lacking in detail. However, the finding that Mr Chatwin had thereby not been candid or fulsome in his evidence was one that assumed a premise that Mr Chatwin was required to disclose his discussions, such as they were, with Mr O'Rourke. Mr Chatwin's evidence, and LOR's position, was that he alone was the decision-maker. Even if Mr Chatwin felt duty bound to inform Mr O'Rourke of the decision he had made, and Mr O'Rourke could alter that decision, it did not follow that those matters were ones that he had an obligation to disclose in the First and Second Chatwin Affidavits. The onus cast upon LOR (as a party to civil litigation) was to adduce sufficient evidence to discharge its burden; it had no duty of full disclosure, and the proceedings were not ones that required it adduce all information and evidence that existed: see., e.g., Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [141]-[143] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 356 The imprecise and, at times, vague nature of the evidence Mr Chatwin gave about his discussions with Mr O'Rourke had to be viewed in the context that he was being asked questions about these matters in September 2022, which was some 26 months after the time at which the relevant events had occurred. The inability of a witness to recall the details of discussions held some 26 months beforehand does not necessarily mean the witness is not being candid or fulsome. That is especially the case where the witness, as here, in the case of Mr Chatwin, gave evidence that he had daily discussions with Mr O'Rourke, and expressly stated that he could not "recall exactly" the nature or content of those discussions and otherwise expressed his evidence on the basis of what "would" have happened or "could" have happened. 357 Even if Mr Chatwin had not been fulsome in his evidence about the discussions he held with Mr O'Rourke, this fact alone went nowhere. An unstated aspect of the primary judge's reasons appears to have been that Mr Chatwin had not been fulsome about his discussions with Mr O'Rourke in order to downplay or conceal that the latter was the true decision-maker, but such a serious allegation was not put to Mr Chatwin and was not the subject of any finding made by the primary judge. 358 It may have been the case that the combination of the totality of the individual items of evidence led the primary judge to essentially conclude that LOR had not discharged its onus in establishing that Mr Chatwin had made the decision to terminate Mr Haley's employment. However, as is apparent from the above paragraphs, the primary judge relied upon that evidence, both individually and cumulatively, to conclude that: (a) Mr Chatwin did not have the power to make the decision to terminate; (b) Mr O'Rourke had the power to make the decision to terminate; and (c) as a result, Mr O'Rourke made that decision. For the reasons set out above, the question as to who had the power or authority to make the decision was relevant, but it did not address the question of fact as to which person or persons, in fact, made the decision. 359 As to that factual question, the primary judge found at PJ [499]: It is open to find, on the basis of that evidence alone, that, being the person in whose power it was to decide to summarily dismiss Mr Haley, it was Mr Cathal O'Rourke who so decided. 360 Counsel for Mr Haley submitted that the primary judge had not made a finding that Mr O'Rourke had in fact made the decision. That submission cannot be reconciled with the finding at PJ [499]. Despite making the finding that Mr O'Rourke in fact made the decision, the primary judge later at PJ [504] implied that it was unnecessary to determine who, in fact, made the decision. Nevertheless, the primary judge said at PJ [504] that, if it were necessary for him to determine that question, he would determine that Mr O'Rourke had made it. However, the primary judge had already made that very determination at PJ [499]. 361 There was no direct evidence that Mr O'Rourke had made the decision to terminate Mr Haley's employment. No one gave that evidence. It was a finding that the primary judge inferred at PJ [499] from the fact that his Honour concluded that the power to make the decision rested with Mr O'Rourke. For the reasons already stated, this did not address the fundamental factual question as to who, in fact, made the decision. 362 The primary judge gave other reasons for coming to the conclusion that Mr O'Rourke made the decision as set out at PJ [504]-[505]. In essence, the primary judge reasoned that given Mr Haley's seniority and the risk of litigation that was likely to arise from the termination of his employment, it was "improbable" that the "power to make" the decision had been conferred upon Mr Chatwin and there was no evidence that Mr Chatwin had any general authority by way of delegation(s) or otherwise to make the decision to terminate a person occupying Mr Haley's position. Based on this logic, the primary judge reasoned that it was Mr O'Rourke who made the decision to terminate. This apparent process of inferential reasoning was not based on any objective facts established on the evidence, but a process of surmise as to what the primary judge considered would have occurred or did occur. 363 For these reasons, the primary judge's reasons for rejecting LOR's case that Mr Chatwin was the person who made the decision were erroneous. 364 Ultimately, however, LOR's ground of appeal challenged the finding made by the primary judge that Mr Chatwin was not the sole decision-maker. Whilst I have found that the primary judge erred, it does not follow that the evidence before the primary judge established that Mr Chatwin was the sole decision-maker. It is necessary to examine the other findings made by the primary judge in this regard. (b) Further errors in finding that Mr Chatwin was not the decision-maker or was not the only decision-maker 365 The primary judge rejected Mr Chatwin's evidence "that he, or that he alone, decided that [LOR] should summarily dismiss" Mr Haley's employment: PJ [496]; see also PJ [503]. There were a number of reasons that led the primary judge to this conclusion. In substance, the primary judge reasoned that the evidence was consistent with there having been other people involved in the making of the decision and that, ultimately, the decision to terminate Mr Haley's employment rested with Mr O'Rourke. 366 Mr Haley contended that this was a case in which the primary judge was simply not satisfied that LOR had discharged its evidentiary onus of establishing that Mr Chatwin was the sole decision-maker. It is correct that the primary judge so reasoned at PJ [498] by stating that: …it [was] not for Mr Haley to prove that Mr Chatwin did not make the decision that LOA summarily dismiss Mr Haley from his employment; the onus is on LOA to show that which it alleges, namely, that it was Mr Chatwin, and Mr Chatwin alone, who decided that LOA summarily dismiss Mr Haley, and, that the reasons on which Mr Chatwin says he relied for deciding to summarily dismiss Mr Haley's employment are reasons he himself had formulated. 367 Whilst the primary judge was correct to conclude that LOR bore the onus of establishing that Mr Chatwin was the sole decision-maker and that it was open to the primary judge (as Mr Haley submitted) to reject Mr Chatwin's evidence, it is necessary to examine the reasons why the primary judge arrived at these conclusions. 368 As explained above, the primary judge's reasons in this regard were interwoven with his Honour's conclusion that Mr O'Rourke had the power and authority to make the decision to terminate Mr Haley's employment, and that Mr O'Rourke in fact made that decision. For the reasons already given, those reasons were erroneous. 369 The primary judge also had other reasons for rejecting LOR's case. Primarily, this was because the primary judge reasoned that, to the extent that Mr Chatwin was involved in making the decision to terminate, Mr Chatwin did not bring his "consciousness" to bear upon the decision and relied upon the reasons of other (unidentified) persons. These reasons were also erroneous. 370 Before turning to address the errors in the primary judge's reasons, it is convenient to frame the analysis by reference to the evidence before the primary judge as to the events which led to Mr Haley's employment being terminated. 371 First, the evidence before the primary judge was that on 3 July 2020, at the recommendation of Mr Curnow-Rose, Mr Haley was suspended from his employment and an investigation was commenced into the Incident. 372 Second, thereafter and up until on or about 17 July 2020, the investigation was conducted by Mr Curnow-Rose, with the assistance of others including Mr Sleeman and Mr Bates. The evidence established that Mr Curnow-Rose communicated with the Pointons and conducted the primary interviews with the witnesses of fact and Mr Haley. The evidence also established that drafts of the Investigation Report were prepared by at least Mr Curnow-Rose, Mr Sleeman and Mr Bates. The drafting of the Investigation Report and other communications during this period pointed to the fact that it was these persons who were involved in formulating the allegations, as well as obtaining, collating and analysing the evidence. 373 Third, Mr Chatwin's evidence was that: (a) he was overseeing the investigation, other than for the duration of the week that he was on holidays, during which time Mr O'Rourke did so; (b) up until the conclusion of the Show Cause Meeting, it was Mr Chatwin and Mr Cashin who had been charged with the responsibility to make the decision whether to terminate Mr Haley's employment; and (c) after the conclusion of the Show Cause Meeting, it was decided that Mr Chatwin would make that decision alone. 374 Fourth, on 16 July 2020, Mr Curnow-Rose sent a draft of the Investigation Report to both Mr Chatwin and Mr Cashin, and Mr Chatwin sent a response on 17 July 2020 setting out comments on that draft. In his response, Mr Chatwin stated that he had read the report "twice" and sought clarification on a number of matters. He also stated that he would read the report again before he formed his "recommendations". It was not explored with Mr Chatwin what he meant when he stated that he would be forming "recommendations". 375 Fifth, after taking into account Mr Chatwin's comments, Mr Curnow-Rose sent the final Investigation Report to Mr Chatwin and Mr Cashin. The final Investigation Report included a number of findings including that the allegation that Mr Haley had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Pointons had been substantiated. By way of summary, the findings included that: (a) Mr Haley was the person who made the comment "Go home you fucking silly old cunt… go home old man, old lady" in the Audio Recording; (b) it was more likely than not that Mr Haley did see Ms Pointon; (c) there was no conclusive evidence that Mr Haley was physically assaulted by Mr Pointon; (d) the evidence provided by the Pointons was, for the most part, preferred to the evidence provided by LOR personnel; (e) whilst the Pointons' entering the Pambula Property without being let in and Ms Pointon's actions in removing the remote control from Mr Neely's hands antagonised the situation, it was also fuelled by alcohol consumption which may have occurred as many as seven hours before the relevant events, and that this did not alone explain or justify the "intense behaviours displayed towards [the Pointons] in the form of profanity laden abuse such as that engaged in by [Mr] Haley"; (f) the conduct of the respondents, including Mr Haley, was unprofessional, and they did not treat the Pointons with respect; (g) the Bushfire Project was a "significant project for [LOR] where positive community interaction and engagement is particularly important to the Company" and "the reputational damage that could potentially be caused to [LOR] arising from issues such as those experienced at the house party… may also be a factor for consideration by relevant decision makers in receipt of [the] Investigation Report"; (h) Mr Haley had breached the Code of Conduct and particularly the section in relation to relationships with stakeholders, which requires, amongst other things, that LOR employees treat local residents with respect and listen to concerns raised and seek a satisfactory resolution to any issues; and (i) Mr Haley had breached the Travel Policy that refers back to the Code of Code as to the expectations of LOR employees whilst travelling for work. 376 The Investigation Report also included a statement that during the investigation process, the investigator "became concerned that one or more of the Respondents along with other attendees at the house party… may not have complied with the confidentiality obligations required of them as part of the investigation process", including on the basis that several of the witnesses' statements "appeared to contain similar content". However, it was stated that the investigator had "no direct evidence that any collusion occurred" and the report "explicitly does not make findings that this did indeed occur". 377 Sixth, prior to the finalisation of the Investigation Report, Mr Haley had (through his wife) complained about the investigation process. That complaint was forwarded to and circulated amongst those who were involved in preparing the Investigation Report. This evidence supported the fact that at least those involved in the investigation and the processes that followed it were aware of Mr Haley having exercised a workplace right. 378 Seventh, on 18 July 2020, Mr Haley had a discussion with Mr McDevitt, which was preceded by a call that Mr McDevitt had with Mr Chatwin. Mr McDevitt informed Mr Haley not to pursue his complaints. This evidence supported the fact that at least by this time Mr Chatwin was aware that Mr Haley had complained about the investigation and had exercised a workplace right which he was being encouraged not to pursue. 379 Eighth, on 20 July 2020, Mr Sleeman prepared various drafts of the Show Cause Letter. He sent some of the earlier drafts to Mr Cashin and Mr Bates for comment. There was no evidence that Mr Chatwin had a say in these earlier drafts. This evidence established that at least Mr Sleeman, Mr Bates and Mr Cashin were involved in the show cause process. 380 Ninth, later on 20 July 2020, Mr Sleeman sent a penultimate draft version of the Show Cause Letter to Mr Chatwin. As set out above, it included a statement to the effect that LOR's preliminary view was that Mr Haley's employment should be summarily terminated and that "[LOR] considers that this action is both reasonable and appropriate in the circumstances set out in this letter". There was no evidence from Mr Chatwin that he had formed that view himself in advance of the draft being sent to him. 381 Mr Chatwin then provided comments on the draft Show Cause Letter which included the Notation. As already noted, in his covering email to Mr Sleeman, Mr Chatwin expressed the view that until he had heard from Mr Haley, he was "still not sure" he would be "concluding termination as of today, so I'm not sure we should say that is our preliminary conclusion". Mr Chatwin's mark-up to the draft Show Cause Letter amended the preliminary view expressed in the draft, and included the Notation. 382 Tenth, the final Show Cause Letter was sent to Mr Haley under the hand of Mr Chatwin on 21 July 2020, adopting Mr Chatwin's comments. Importantly, the Show Cause Letter stated, in summary, that a view had been formed that Mr Haley had engaged in inappropriate conduct towards the Pointons including by uttering the Offensive Words to them which was in breach of the Code of Conduct and Travel Policy; this conduct had exposed LOR to risk of reputational damage; Mr Haley had not conducted himself in a way consistent with him having been the most senior employee present during the Incident; Mr Haley had exhibited a lack of candour during the course of the investigation; and Mr Haley had not accepted responsibility for his conduct. The letter stated that LOR had formed the view that Mr Haley's conduct reached the threshold of serious misconduct and that his conduct may warrant summary termination. As I explain later, it is of some significance that Mr Chatwin had settled the Show Cause Letter and that it was signed by him. These facts supported a conclusion that the contents of the Show Cause Letter reflected Mr Chatwin's state of mind as to Mr Haley's conduct and the likelihood of his employment being terminated. 383 Eleventh, the Show Cause Meeting was held on 22 July 2020. It was attended by Mr Haley, Mr Chatwin, Mr Cashin, Ms Byrne, and a support person. The meeting was recorded and notes were taken (which, as noted above, the primary judge referred to as the CB Notes of Meeting). The transcript of the Show Cause Meeting (as set out above at Part E.24) and the CB Notes of Meeting disclose that Mr Chatwin primarily took the lead (along with Mr Cashin) in putting various questions to Mr Haley and expressing their concerns to him. As demonstrated by those notes, the concerns expressed by Mr Chatwin and Mr Cashin were an extension of the matters raised in the Show Cause Letter as to Mr Haley's conduct towards the Pointons, his role as the most senior employee present at the BBQ, his failure to make earlier admissions and accept responsibility, and the fact that he had sought to make allegations of assault as against Mr Pointon. 384 Twelfth, following the Show Cause Meeting, there was a discussion between Mr Chatwin, Mr Cashin and Ms Byrne. Mr Chatwin gave the following evidence in the Second Chatwin Affidavit about that discussion: … shortly after the show cause meeting concluded, I discussed the matter with Mr Cashin and we agreed that, given the seriousness of the issue at stake, some time would need to be allocated to reflect and deliberate on the matter before coming to a decision. Given my responsibilities within the organisation as the Functional lead (while Mr Cashin was the Operations lead) and my direct involvement in the earlier written communications with Mr Haley in relation to the events after the incident on 2/3 July 2020, it was agreed that I would take on the role of sole decision maker, go away, reflect on all of the material referred to in the investigation report and subsequent discussions with Mr Haley, and form a view about what should, or should not, be done. Thereafter, Mr Cashin ceased to have any involvement in the outcome of the show cause process… 385 Mr Chatwin also gave the following oral evidence about the period directly following the Show Cause Meeting: Thank you, Mr Chatwin. And did you have any discussions with Ms Cassandra Byrne in that period?---Once you had left the room - - - Yes?--- - - - with your support partner support person, we did have some deliberations. Yes?---But it was more just reflections on the meeting, anything we had heard, anything facts that had been well, statements you had made and then anything we observed from that meeting. And then Mr Cashin yes, so we did, we did. But after those deliberations with Ms Byrne and I'm not going to say how long they were, but let s say midday, approximately you had no further contact with Ms Byrne after that?---I can't recall. To my I don t believe so. Cass was Ms Cass Byrne was only there, really, for being an observer and taking notes. She wasn't really a big part of the process. So I can't recall. I don t think I would have had any reason to call Ms Byrne, other than to clarify something that was said or anything like that, but I don t recall. I don t believe so. I think I had enough from that meeting and from all of anything that had gone before that to then just go away and make the decision. 386 And later during the course of cross-examination: Okay. Do you know that Cassandra Byrne directed Peter Clay to prepare a final payment estimate for me on the basis my employment was terminated without notice effective Friday, 24 July?---I've I didn't I didn't know I didn't know that email had been sent. There was a high probability, from that meeting, that your employment could be terminated. I see this as Cass getting that prepared for that eventuality, not that a decision has been made, because I know myself, from from within, that that decision had not been made at that point. I hadn't made the decision. I hadn't sat down Cathal and explained my decision, but there was a high probability and I think you knew that coming into the show-cause meeting there was a risk of that No, I didn't, but go on?---There was a risk of that and so, yes, I think that's there's nothing more in it than that. HIS HONOUR: Well, how do you know?---Sorry? Why what is it why are you confident saying there's nothing in it?---Because I hadn't told Cass Byrne that I had made the decision. But did she know what the current state of the investigation and decision-making process would be?---10 She she obviously sat through the - - - Yes?--- - - - show-cause meeting and we reflected after the meeting: myself, Cass and Mr Cashin - - - Right?--- - - - on what we just heard. Yes?---And a number of the things that went into the final decision, we talked about. Right?---And so, yes, Cass, very, very quickly had become quite aware of the the fact the matters of the case. Right?---And, ultimately ultimately, she went went went and prepared for what that might be if the the the pay she started the process of just getting ready for if that happens, because if it happened, we would probably it would probably need to happen quite quickly. MR HALEY: Okay. If I could just ask you a question on what you said there, Mr Chatwin. You said yourself, Cass Byrne and Pat Cashin discussed the reasons that went into the final termination letter; they were the words that you just said. COUNSEL: I object. I don t think he did. He didn't say that. MR HALEY: Okay; that's what I heard. COUNSEL: He said they reflected on the show-cause meeting is my recollection of what he said. MR HALEY: And discussed the reasons. I heard those words. COUNSEL: I didn't. THE WITNESS: We we discussed if I get to answer. COUNSEL: Yes. MR HALEY: Yes. HIS HONOUR: Why don't you - - -?---We discussed some of the matters that went into the final show-cause meeting, not working back sorry that went into the final termination, not working back from the reasons for terminating, it was more that that everything we had just heard were things that eventually determined the termination. 387 Mr Chatwin's evidence was that at that time there was a high probability that Mr Haley's employment would be summarily terminated, but that he had not yet made the final decision to terminate. 388 Thirteenth, also following the Show Cause Meeting, a number of items of correspondence and documents were created which were referred to as the Post Show Cause Meeting Documents. The Post Show Cause Meeting Documents were the following (PJ [473]): (a) the documents indicating by 10:35 pm on 22 July 2020 Mr Sleeman received the CB Notes of Meeting on which Mr Sleeman highlighted passages, and added comments; (b) the email sent by Ms Byrne at 5:07 pm on 22 July 2020 requesting a final payment estimate be prepared for Mr Haley on the basis that his employment would be terminated without notice effective 24 July 2020; (c) the email from Mr Chatwin sent at 1:07 pm on 23 July 2020 in which he stated "all is lost on the termination decision"; (d) the document indicating that at 6:58 pm on 23 July 2020 Mr Sleeman provided to Mr Bates the CB Notes of Meeting which included his annotated comments; and (e) the document indicating that at 4:54 pm on 24 July 2020 Mr Sleeman sent to Mr Chatwin the Termination Letter for sending to Mr Haley, which Mr Chatwin did by email he sent at 5:09 pm on 24 July 2020. 389 In relation to the last of these documents, it is relevant that when it was sent by email to Mr Chatwin, it already contained his electronic signature: PJ [458]. 390 Fourteenth, Mr Chatwin's evidence as to him being the decision-maker was as follows: (a) after the conclusion of the Show Cause Meeting, he essentially locked himself in a room and went through all the documents and materials again; (b) his best recollection was that he undertook this process from about 11am to 11pm on 22 July 2020; (c) he continued his deliberations the following morning, 23 July 2020; (d) if he had any questions, he "reached out to people for those queries"; (e) he informed Ms Fraser of his decision to dismiss Mr Haley at around 9.30 am on 23 July 2020; (f) then sometime during that day he contacted Mr O'Rourke and "just grabbed him"; and (g) after he received the Termination Letter at 4:54 pm on 24 July 2020, he contacted Mr Haley by telephone to inform him of the decision and then sent the Termination Letter to him at 5:09 pm. 391 During his cross-examination, Mr Chatwin gave the following evidence rejecting that either Mr Bates or Mr Sleeman were involved in making the decision: Did you have any communications with Mr Bates in the period while you were deliberating your decision?---From I'm only I'm speaking from memory because I can't recall writing anything down. But I don t believe I spoke with Mr Bates before I made the decision. I think I had locked myself in a room and, if I had any queries, I would have obviously just reached out to people for those queries. But in terms of the final decision, I just wanted to just think myself. Dane Bates was more involved when it was well, he was when we had made the decision when I had made the decision, sorry, I should correct. So I think it was more so afterwards that I would have been speaking to Mr Bates. Okay. Thank you. So you can't recall on that day whether you spoke to Mr Bates or not?---I can't. I would have to go back and check my phone records and things like that which I didn't I haven t gone into that level of detail. Okay. And did you speak to Mr Daniel Sleeman in that period sorry. Did in the same period, did you speak to Mr Daniel Sleeman?---Daniel was a support through — Mr Sleeman was a support person throughout in terms of more drafting the technical sides of any letters and things like that because it was obviously employee relations subjects which I'm not an expert in. In the decision-making process, I would not have spoken to Daniel Sleeman. The only things I would have sought was any clarity on any matters that probably went into the letter which would have been after the deliberations. 392 In the First Chatwin Affidavit, Mr Chatwin stated that he made the decision to terminate Mr Haley's employment but did not disclose when he made that decision. He said nothing about when the Termination Letter was drafted or by whom. The First Chatwin Affidavit set out the reasons why Mr Chatwin had decided to terminate Mr Haley's employment, and denied that he made that decision for any of the proscribed reasons. In the Second Chatwin Affidavit, Mr Chatwin denied that anyone else was involved in making the decision. 393 The totality of the evidence supported the fact that there had been at least three processes that preceded the making of the final decision to terminate Mr Haley's employment, or there was one singular process comprised of three parts. The first of those processes was the suspension and subsequent investigation. It does not appear that Mr Chatwin was involved in that process (other than by way of oversight during periods when he was not on leave) until the point in time that the Investigation Report was near to being finalised. The second process was that related to and arising from the Show Cause Letter. Mr Chatwin was involved in that process, along with others including Mr Cashin, Mr Sleeman and Mr Bates. Mr Sleeman was primarily involved in preparing the Show Cause Letter with the assistance of Mr Bates, but Mr Chatwin settled and signed that letter, and Mr Chatwin and Mr Cashin took the lead in running the Show Cause Meeting. The third process was that which led to the termination being effected. This process at least involved Mr Sleeman in preparing the Termination Letter (with the possible input of Mr Bates and Mr Barrett); Ms Byrne and others in taking steps to prepare for the termination to be given effect; and Mr Chatwin being engaged in a process of evaluating all of the material which culminated in him making a decision on the morning of 23 July 2020 which he communicated to Ms Fraser and about which he spoke to Mr O'Rourke by "grabbing him". 394 Viewed this way, it is clear that there were other people involved in each of the three processes (or in the single process of which there were three parts), but the question raised by the applicable authorities was whether the involvement of these other people was merely a contextual influence or something that was more involved. The primary judge did not address this question. Instead, the primary judge simply did not accept that Mr Chatwin made the decision to terminate Mr Haley, or that he had made that decision alone, or that to the extent he was involved in the decision that he had brought his "consciousness" to bear upon the reasons for termination. 395 Mr Haley submitted that the primary judge's findings in this respect were "protected" and it was open to his Honour to reject Mr Chatwin's evidence. However, as I have already stated, the question raised by the appeal requires engagement with the reasons why the primary judge rejected Mr Chatwin's evidence and concluded that LOR had not discharged its onus. 396 The primary judge gave four essential reasons for rejecting Mr Chatwin's evidence and concluding that LOR had not discharged its onus. 397 The first reason given by the primary judge at PJ [496](a) was that Mr Chatwin had not disclosed in his affidavits the discussions he had with Mr O'Rourke. The primary judge concluded that Mr Chatwin's failure to address these matters in his affidavits meant that he was not prepared to give any "credit to the assertions Mr Chatwin made in his affidavits". However, for the reasons outlined above, the primary judge's reasoning here proceeded on the incorrect premise that LOR and Mr Chatwin were required to address these matters. 398 The second reason given by the primary judge at PJ [496](b) was that the email Ms Byrne sent at 5:07 pm on 22 July 2020 suggested that "a person or persons within [LOR], other than Mr Chatwin, had by then decided that Mr Haley would be summarily dismissed from his employment, effective on 24 July 2020". The primary judge buttressed this finding by reliance upon the other Post Show Cause Meeting Documents and by reference to Mr Chatwin's inability to recall precisely when he made the decision to terminate Mr Haley. In respect of the latter matter, the primary judge observed that Mr Chatwin had given the following evidence as to when he made the decision: (a) "… it was somewhere around 22 or 23 July when I made that decision, possibly the morning of the 23rd, because I think I wanted to sleep on it" (at PJ [483]); (b) "… I think I was probably going till very late in the evening, because of the volume of information to go back through… I wanted to sleep on it, probably getting towards a conclusion that evening, but wanted to sleep on it, just double checking things in the morning. There was some – I believe there was some, from memory – there was probably some things we were just checking back on with Human Capital as well. But yes. So not 11 till 5, probably 11 till 11, and then back up in the morning, and then moving into the final decision in the morning" (at PJ [484); (c) "… I think I had locked myself in a room and, if I had any queries, I would have obviously just reached out to people for those queries. But in terms of the final decision, I just wanted to just think myself…" (at PJ [486]); (d) "… In the decision-making process, I would not have spoken to Daniel Sleeman. The only things I would have sought was any clarity on any matters that probably went into the letter which would have been after the deliberations…" (at PJ [487]). 399 After examining Mr Chatwin's evidence as to when he made the decision, the primary judge then reasoned as follows (at PJ [489]): Unexplained, and LOA has offered no explanation, the email Ms Byrne sent at 5:07 pm on 22 July 2020 to Mr Peter Clay (copied to Mr Sleeman) requesting that Mr Clay "prepare a final payment estimate for Tom Haley on the basis his employment is terminated without notice effective Friday, 24 July", suggests that a decision had been made by 5:07 pm on 22 July 2020 by some person that Mr Haley would be summarily dismissed effective on 24 July 2020. If that suggestion is correct, Mr Chatwin's evidence that he made the decision to terminate Mr Haley's employment "possibly [in] the morning of the 23rd, because I think I wanted to sleep on it"; that Mr Chatwin "was probably going till very late in the evening, because of the volume of information"; that Mr Chatwin "wanted to sleep on it, just double check things in the morning"; that "there was probably some things we were just checking back on with Human Capital", that he deliberated on this decision "probably 11 to 11, and then back up in the morning, and then moving into the final decision in the morning", and that "I think I had locked myself in a room" cannot be accepted. (Emphasis added). 400 The primary judge appears to have rejected Mr Chatwin's evidence on the basis that Ms Byrne's email established that a decision to terminate Mr Haley's employment had been made by the evening of 22 July 2020 and that it was made by a person or persons other than Mr Chatwin. The rejection of that evidence appears to have been based upon the fact that Ms Byrne's email sought the preparation of a "final pay estimate" on the basis of a termination date of 24 July 2020. 401 The primary judge rejected Mr Chatwin's explanations as to the email that Ms Byrne had sent. The primary judge extracted a portion of the relevant cross-examination at PJ [490] where Mr Chatwin stated in response to a question from Mr Haley that: … I didn't know that email had been sent. There was a high probability, from that meeting [i.e., the Show Cause Meeting], that your employment could be terminated. I see this as Cass getting that prepared for that eventuality, not that a decision has been made, because I know myself, from – from within, that that decision had not been made at that point. I hadn't made the decision. I hadn't sat down Cathal and explained my decision, but there was a high probability… (Emphasis added). 402 The primary judge rejected this explanation. His Honour reasoned at PJ [491] that: Mr Chatwin's stating that there was a "high probability, from that meeting" that Mr Haley's employment would be terminated does not sit well with the evidence Mr Chatwin had earlier given that he had deliberated "probably 11 till 11" and "locked myself in a room", about whether he should decide to summarily dismiss Mr Haley from his employment. It is implausible that Mr Chatwin, the only decision-maker, would deliberate from 11 to 11, possibly in a locked room, and sleep on it until the morning before making a decision, about whether he should decide to summarily terminate Mr Haley's employment in circumstances where there was a "high probability, from that meeting" that Mr Chatwin would decide to summarily terminate Mr Haley's employment. And Mr Chatwin's observations to explain why Ms Byrne might have done what she did are obviously not admissible as evidence to explain why she had sent the email. It is open to infer, from the fact that Ms Byrne copied Mr Sleeman into her email that it was on the instructions of Mr Sleeman that Ms Byrne requested Mr Clay "prepare a final payment estimate for Tom Haley on the basis his employment is terminated without notice effective Friday, 24 July"… (Emphasis added). 403 In my view, the primary judge placed undue significance and reliance upon the email from Ms Byrne, and did not have sufficient regard to other evidence. 404 The evidence established that immediately following the conclusion of the Show Cause Meeting there was a discussion between Mr Chatwin, Mr Cashin and Ms Byrne. Mr Chatwin gave the following evidence about that meeting: Why what is it why are you confident saying there's nothing in it?---Because I hadn't told Cass Byrne that I had made the decision. But did she know what the current state of the investigation and decision-making process would be?--- She she obviously sat through the - - - Yes?--- - - - show-cause meeting and we reflected after the meeting: myself, Cass and Mr Cashin - - - Right?--- - - - on what we just heard. Yes?---And a number of the things that went into the final decision, we talked about. Right?---And so, yes, Cass, very, very quickly had become quite aware of the the fact the matters of the case. Right?---And, ultimately ultimately, she went went went and prepared for what that might be if the the the pay she started the process of just getting ready for if that happens, because if it happened, we would probably it would probably need to happen quite quickly. 405 Mr Chatwin's evidence in this regard was unsurprising. It will be recalled that when settling the Show Cause Letter, Mr Chatwin had stated in an email that he wanted to meet with Mr Haley face to face before concluding whether his employment should be terminated. The Show Cause Letter, which Mr Chatwin settled, put Mr Haley on notice that the purpose of the Show Cause Meeting was to hear from Mr Haley before deciding whether or not to terminate Mr Haley's employment. The possibility of termination was thereby already on the cards before the Show Cause Meeting was held. That evidence together with Mr Chatwin's evidence that there was a "high probability" of termination after the Show Cause Meeting provided an explanation as to why steps were being taken in readiness to give effect to the termination. In that context, Ms Byrne's email appeared to be a preparatory step in anticipation of a high likelihood that Mr Haley's employment would be terminated. 406 Moreover, at 12:08 pm on the next day, 23 July 2020, Ms Byrne sent an email to Mr Chatwin and others that stated she had "Following on from yesterday…pulled together a number of items for consideration". The first item was the "Draft final payment estimate" which she stated had "been calculated as at tomorrow, 24 July" and that the "final figure will shift slightly depending on the agreed exit date". This further email provided context and indicated that the steps that Ms Byrne was taking were preparatory and were a follow on from the events the day before. The fact that she was sending documents, including the draft final payment estimate (for consideration) suggested that a decision had not been made. 407 Within this context, the fact that Ms Byrne sent an email on 22 July 2020 did not establish, as the primary judge found, that a decision had already been made by that time and that this decision was made by someone else. The email of 22 July 2020 had sought an "estimate", not a final sum. Further, even though the email was expressed in a way that assumed that Mr Haley's employment would be terminated on 24 July 2020, Ms Byrne's email on the next day indicated that the sums would shift depending on the agreed exit date. This evidence pointed in the direction that no final decision had been made, but that steps were being taken in preparation for it to be made. 408 Thus, the primary judge's reasons for rejecting Mr Chatwin's evidence that he had deliberated on the final decision for a period of 12 hours, and overnight, was based upon a narrow reading of Ms Byrne's email of 22 July 2020, being a reading that did not account for all of the contextual facts set out above. 409 The third reason given by the primary judge at PJ [496](c) was that Mr Chatwin gave no evidence about the person or persons who prepared the Termination Letter, or whether Mr Chatwin had any role in providing information that found its way into the Termination Letter. A related fourth reason was that the primary judge was not satisfied that, other than bald assertions, Mr Chatwin's evidence was lacking as to when he made the decision to terminate Mr Haley's employment, and whether as at that time he had formulated reasons consistent with those contained in the Termination Letter and the First Chatwin Affidavit: PJ [497]. To a similar effect, the primary judge reasoned at PJ [615]-[617] that he was not satisfied that Mr Chatwin had brought his "consciousness" to bear upon the reasons for termination as stated in the Termination Letter or in the First Chatwin Affidavit, and was also not satisfied, that, to the extent that Mr Chatwin did bring these matters "to his consciousness" they were the product of "anything other than adopting the views another person or other persons had formulated". 410 As to the preparation of the Termination Letter, Mr Chatwin had given the following evidence during cross-examination: Now, let me ask a straight question: who was the author of this letter, Mr Chatwin? Who drafted it?---So it was drafted by based on the findings for from the .....meeting, it was drafted by from memory - - - I can you back to the evidence. I'm asking - - -?---That's Dan Sleeman mixture of Dan Sleeman, I believe. Possibly Dane Bates, looking at it. And more than likely a legal rep looking at it as well. Did you - - - HIS HONOUR: A legal what, sorry?---A legal a legal partner. Probably Simon Barrett. Person. Within the business. An internal legal lawyer?---Yes. Legal person. Thank you?---Sorry, your Honour. MR HALEY: Did you make did you receive a draft version of this document?---I would have thought so. Okay. Did you make any comments on it?---Don't recall. The evidence shows you didn't. So - - - HIS HONOUR: You can put to him he didn't. MR HALEY: Okay. Yes. HIS HONOUR: You can are you going to make a submission that he didn't draft any of it to me? MR HALEY: He yes. HIS HONOUR: So you can put squarely to him, because that's the submission Mr Chatwin, what's being put to you is that you did not make any change to whatever draft was submitted to you. That's what's being put to you. Do you agree or disagree? Or you don't know?---I don't know. MR HALEY: Okay. Your Honour, I think it would be appropriate to call on any draft letters that were sent to Mr Chatwin on 24 July 2020, please. HIS HONOUR: Yes. All right. Any drafts of the letter of the termination letter - - - MR HALEY: Yes, please. HIS HONOUR: - - - that was sent to Mr Chatwin - - - MR HALEY: Yes, please. HIS HONOUR: - - - and any draft which contains any comments from Mr Chatwin. MR HALEY: Yes, please, your Honour. 411 As far as I can glean from the materials put before me, LOR did not answer the call for production made by Mr Haley. 412 In relation to these matters, the primary judge reasoned that the Post Show Cause Meeting Documents suggested the Termination Letter was drafted by Mr Sleeman on the basis of the CB Notes of Meeting, and Mr Chatwin first became aware of the contents of the Termination Letter at 4:54 pm on 24 July 2020 when Mr Sleeman sent to Mr Chatwin an email attaching the Termination Letter, 15 minutes before 5:09 pm on 24 July 2020 when Mr Chatwin sent the Termination Letter to Mr Haley. 413 The primary judge further reasoned as follows (at PJ [474]): Unexplained, and LOA has adduced no evidence (including evidence from Mr Chatwin) to explain them, these documents suggest that, after he reviewed the CB Notes of Meeting, Mr Sleeman drafted the Termination Letter, he submitted it at the very least to Mr Barrett for review by him, and provided the Termination Letter to Mr Chatwin to send to Mr Haley without Mr Chatwin having been requested to provide any input, and without Mr Chatwin submitting any input. That suggests that the reasons for summarily dismissing Mr Haley, as stated in the Termination Letter, were formulated by a person or persons other than Mr Chatwin; and that, in turn, suggests that in the 15 or so minutes that passed from Mr Chatwin's receiving the Termination Letter from Mr Sleeman at 4:54 pm on 24 July 2020 to 5:09 pm on 24 July 2020, when Mr Chatwin on-sent the Termination Letter to Mr Haley, Mr Chatwin either did not read the Termination Letter or, if he did, he could have done no more than adopt the reasons stated in the Termination Letter. Given that Mr Chatwin gives no evidence about these matters, it is not possible to make any findings about what Mr Chatwin did in relation to the preparation and sending of the Termination Letter. That means that I cannot be satisfied that, at the time he on-sent the Termination Letter to Mr Haley, that is, at the time LOA purported to summarily dismiss Mr Haley from his employment, Mr Chatwin held any reasons in his own mind about why Mr Haley should be summarily dismissed or, if he did, he did anything more than adopt the reasons stated in the Termination Letter that had been formulated by another person or other persons or, indeed, reasons not stated in the Termination Letter. That, in turn, undermines the evidence Mr Chatwin gives in his affidavit that he decided to terminate Mr Haley's employment for the reasons he says in his affidavit he did. If Mr Chatwin did not read or do anything other than adopt the reasons stated in the Termination Letter by the time he had sent the Termination Letter to Mr Haley, it is improbable that Mr Chatwin decided that Mr Haley's employment should be terminated or that Mr Chatwin had nevertheless formulated in his mind, by the time he sent the Termination Letter to Mr Haley, the reasons for which Mr Chatwin in his affidavit says he decided that LOA should summarily dismiss Mr Haley's employment. (Emphasis added). 414 The primary judge further reasoned at PJ [497] that: I am also not satisfied that Mr Chatwin jointly decided with another person or other persons that LOA should summarily dismiss Mr Haley from his employment. To the extent Mr Chatwin was involved in the decision to summarily dismiss Mr Haley from his employment, I would not accept that, at the time he was involved in any such decision, Mr Chatwin had formulated as his own reasons for doing so the reasons which, in his first affidavit, Mr Chatwin asserts were the reasons for which he decided to summarily dismiss Mr Haley's employment. Mr Chatwin did not give evidence about when he had formulated those reasons; and he did not give evidence in which he described the intellectual processes by which he arrived at those reasons. Further, as I have noted, Mr Chatwin did not in his evidence address the Post Show Cause Meeting Documents which, unexplained, suggest Mr Chatwin played no role in formulating the purported reasons stated in the Termination Letter for which LOA purported to summarily dismiss Mr Haley from his employment. (Emphasis added). See also PJ [616]. 415 The primary judge then addressed LOR's submissions, relying upon Wong FFC, that Mr Chatwin was the decision-maker and there were no other persons involved in that decision. As to these submissions, the primary judge reasoned as follows at PJ [502]: LOA in its written submissions also submits that "this is not a case where Mr Chatwin simply assumed the truth of information that was provided to him by others". This submission assumes I have accepted Mr Chatwin alone decided that LOA should summarily dismiss Mr Haley from his employment. I have not accepted this proposition; but I will assume, for the purpose of this submission, that it was Mr Chatwin who decided that LOA should summarily dismiss Mr Haley. Even on that assumption, I would not accept LOA's submission. (a) First, I have already noted, in his affidavits Mr Chatwin did little more than assert that he was the decision maker, and asserts that the reasons he identified in his affidavits were the reasons on which he relied. Mr Chatwin, however, elected not to reveal in his affidavits the bases on which he arrived at the reasons he asserts were the reasons for which he decided that LOA should summarily dismiss Mr Haley from his employment. (b) Second, for reasons I have already given, unexplained, the Post Show Cause Meeting Documents suggest Mr Chatwin played no role in formulating the purported reasons stated in the Termination Letter for which LOA purported to summarily dismiss Mr Haley from his employment. Either Mr Chatwin did not read the contents of the Termination Letter before he sent it to Mr Haley at 5:09 pm on 24 July 2020 or, if Mr Chatwin did read and understand its contents, Mr Chatwin did nothing more than adopt those reasons by sending the Termination Letter to Mr Haley under his name. (c) Third, as I have also noted above, the purported object of the Second Purported Investigation Report was an allegation that Mr Haley uttered "the Offensive Words" towards them. It may be the case, but I make no such finding, that at the time Mr Chatwin sent the Termination Letter to Mr Haley, Mr Chatwin believed that this was in fact the allegation Mr and Ms [Pointon] made. I have set out, however, the evidence Mr Chatwin gave that, having done a "check over lunch" Mr Chatwin said that Mr and Ms [Pointon] did "not specifically" complain that Mr Haley said "Go home, you silly cunt. Go home, old man. Go home, old man". That suggests that, at best, Mr Chatwin proceeded on an incorrect assumption that Mr and Ms [Pointon] did make that complaint. That by itself prevents me from finding that Mr Chatwin had any real understanding of the contents of the Second Purported Investigation Report, or of the allegations that were made against Mr Haley which were purportedly the subject of that report, or of the basis on which the findings against Mr Haley had been "substantiated". 416 There is considerable force in the primary judge's reasons as to the paucity of evidence adduced by LOR as to the preparation of the Termination Letter. The best evidence was that the Termination Letter was prepared by at least Mr Sleeman with the assistance of Mr Bates and Mr Barrett. Mr Chatwin had explained that he sought out Mr Sleeman for clarity and assistance as an expert. Specifically, his evidence was that he sought clarity from Mr Sleeman about "any matters that probably went into the letter which would have been after the deliberations". Although Mr Chatwin did not give evidence about when he spoke to Mr Sleeman or his own involvement in determining the contents of the Termination Letter, Mr Chatwin denied that Mr Sleeman made the decision and had at least given some evidence as to the latter's role. 417 There was other evidence before the primary judge that needed to be evaluated and assessed in order to make a determination as to whether Mr Chatwin was or was not the person who made the decision and whether he did nothing more than adopt the reasons formulated by others as stated in the Termination Letter. As set out above, the evidence before the primary judge was that there were at least three processes that were involved in the lead up to the termination (or a single process that involved three parts): the investigation, the show cause process, and the events that occurred after the Show Cause Meeting culminating in the termination taking effect. The primary judge's conclusion that he was not satisfied that Mr Chatwin had brought his "consciousness" to bear upon the reasons for terminating Mr Haley's employment at the time that this decision was made, approached this factual question in an acontextual manner that ignored all that had occurred earlier. 418 Mr Chatwin had given evidence that following the conclusion of the Show Cause Meeting, it was decided that he alone would make the decision to terminate Mr Haley's employment to the exclusion of Mr Cashin who up until that point in time was intended to jointly make the decision. The fact is that by the conclusion of the Show Cause Meeting, Mr Chatwin had reviewed the draft Investigation Report, and commented on it before it was finalised. Mr Chatwin also had an important hand to play in the finalisation of the Show Cause Letter and was a central participant at the Show Cause Meeting. An examination of the contents of the Investigation Report, the Show Cause Letter and the CB Meeting Notes disclose concerns broadly consistent with those contained in the Termination Letter and in the First Chatwin Affidavit as to Mr Chatwin's reasons for deciding to terminate Mr Haley's employment. Whether these reasons were correct or not, the broad themes that had emerged from the Investigation Report, as articulated in the Show Cause Letter and taken up at the Show Cause Meeting, and which were recorded in the Termination Letter, related to the view there expressed that Mr Haley had engaged in inappropriate conduct towards the Pointons that was unbecoming of a person in his position, that he had not conducted himself in a candid way during the investigation and was not accepting any responsibility, and risked bringing LOR into disrepute. 419 It is correct that there was little evidence about the involvement Mr Chatwin had in the preparation or approval of the Termination Letter. The evidence indicated that it was first sent to him at or about the same time as he telephoned Mr Haley to inform him that his employment was being terminated, and approximately 15 minutes before sending that Termination Letter to Mr Haley. However, as I have noted, the contents of the Termination Letter were a continuation of the themes contained in the Show Cause Letter which Mr Chatwin had settled and raised during the Show Cause Meeting. True it is, the Termination Letter did not adopt verbatim every element of that which had been contained in the Show Cause Letter, but there were similarities. Otherwise, the Termination Letter set out the primary matters raised during the course of the Show Cause Meeting, which included those matters that Mr Chatwin had pressed Mr Haley about during that meeting. 420 In concluding that Mr Chatwin had done nothing more than adopt the reasons stated in the Termination Letter and/or did not bring his consciousness to bear on the reasons for termination, the primary judge failed to consider the totality of the evidence as to Mr Chatwin's involvement in each of the three processes that I have identified and, in particular, his involvement in settling the Show Cause Letter and participation in the Show Cause Meeting, together with his consideration of matters following the Show Cause Meeting. 421 Even if Mr Chatwin had given little attention to the contents of the Termination Letter, the evidence before the primary judge required a consideration and evaluation as to whether Mr Chatwin was nevertheless the decision-maker and, if so, what were his reasons for termination if they did not align with those stated in the Termination Letter and whether his denials that those reasons did not include the proscribed reasons should be accepted. Analysis of these matters may well have led the primary judge to the same conclusion that he was not satisfied that LOR had established that Mr Chatwin was the decision-maker, or the sole decision-maker, or that he had done nothing more than adopt the reasons of others. However, this analysis was not undertaken. 422 There is a further matter that the primary judge needed to reconcile given the manner in which his Honour reasoned. As addressed above, a central reason why the primary judge considered that LOR had not discharged its onus in establishing that Mr Chatwin was the decision-maker was that it was Mr O'Rourke who had the power to make the decision and that Mr O'Rourke had, in fact, made that decision: PJ [499]. However, as also addressed above, the primary judge considered that, to the extent that Mr Chatwin was involved in making that decision, he had done no more than adopt the reasons in the Termination Letter without bringing his consciousness to bear upon those reasons which had been formulated by another person or persons: PJ [474], [615]. It is not clear whether this other person or persons were Mr O'Rourke or someone else, but this raised an inconsistency in the way that the primary judge reasoned. 423 Leaving this inconsistency to one side, to the extent the primary judge rejected LOR's case and Mr Chatwin's evidence on the basis that Mr Chatwin was merely adopting the reasons of others, the primary judge erred by failing to consider and evaluate the totality of the evidence (which is summarised above) and to engage with the applicable principles set out in Wong FFC. Those principles indicate that mere involvement in decision-making may not be enough, and something greater than mere contextual influence is required. The totality of Mr Chatwin's evidence, including other objective evidence, pointed to the fact that other persons were involved in each of the processes that led to the termination and Mr Chatwin accepted that he was taking advice and guidance from others. There was objective and contemporaneous evidence indicating that Mr Chatwin viewed aspects of the decision-making as collaborative and others which he considered were ones whereby he had to make a decision and then inform or consult with others. This evidence included the Notation. The evidence also pointed to the fact that Mr Chatwin intended that he would not make a final decision until he had discussed the matter with Mr O'Rourke. The evidence also included that Mr Chatwin had little input into the final form of the Termination Letter. As a result, the question that had to be addressed was the nature and quality of the involvement of Mr Chatwin and these other persons. The primary judge did not address this. 424 It may well be the case, and my impression is, that the primary judge was simply not satisfied on the evidence he had read and heard that LOR had established that Mr Chatwin was the sole decision-maker because there was evidence indicating that there were others, including Mr O'Rourke and the persons involved in the investigation and preparation of the Termination Letter, who played an indispensable or material part in the decision to terminate. However, this is not how the primary judge reasoned. Rather, as I have explained, the primary judge reasoned that Mr Chatwin was not the decision-maker because the power to make the decision rested with Mr O'Rourke, and he made that decision, and that Mr Chatwin merely adopted the reasons of others without addressing who those other people were and whether those other persons had only a mere contextual influence on the decision-making, as opposed to playing a material or indispensable part in it. 425 For all of the above reasons, I am satisfied that the primary judge erred in his Honour's reasons for concluding that Mr Chatwin was not the decision-maker. However, it does not follow from my conclusion that the primary judge erred that, in fact, it should be accepted that Mr Chatwin was the decision-maker or was the sole decision-maker. I address these matters further below. (c) An erroneous approach to the discharge of the statutory presumption in s 361 of the FW Act 426 The primary judge reasoned that LOR had not discharged the burden cast by s 361 by failing to call evidence from the person or persons who had made the decision to terminate Mr Haley's employment: PJ [615]-[617]. 427 The primary judge reached this conclusion for the following reasons. 428 First, as addressed above, the primary judge was not satisfied that Mr Chatwin had made the decision to terminate Mr Haley's employment, or that he had done so alone. 429 Second, as also addressed above, the primary judge was not satisfied that Mr Chatwin had brought his consciousness to bear upon the reasons for termination set out in the Termination Letter or in the First Chatwin Affidavit and that, to the extent he had done so, Mr Chatwin had done no more than adopt the reasons formulated by others. 430 Third, it followed that the primary judge found that LOR had not called evidence from the relevant decision-maker(s) to prove that LOR had not made the decision for a proscribed reason or reasons. 431 Each of these reasons was affected by the errors that I have identified and addressed at length above. 432 Further, in my view, the primary judge also erred by examining Mr Chatwin's evidence by reference to the wrong frame of analysis. The central question raised by s 361 of the FW Act is "why was the adverse action taken" as a step towards determining whether the reasons for so acting did not include, as substantial and operative reasons, the proscribed reasons. The primary judge here reasoned on the basis that he was not satisfied that Mr Chatwin had formulated the reasons stated in the Termination Letter or in the First Chatwin Affidavit, or that he had brought his consciousness to bear upon those reasons other than merely adopting them. 433 Whilst rejection of the employer's posited reasons for engaging in adverse action may be determinative as to whether it has discharged its onus, this does not necessarily follow, especially if there is express and unchallenged evidence denying that any of the proscribed reasons played a part in the reasons for termination. Here, Mr Chatwin's evidence contained such denials, which the primary judge did not consider. 434 In Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421, Bromberg J at [84]-[86] stated: [84] Although direct testimony from the person who decided to take the adverse action, which is accepted as reliable, is capable of discharging the statutory presumption imposed by s 361, direct testimony from that person is not a necessary pre-condition for the discharge of the statutory presumption: BHP Coal at [184]–[188]. It is possible, for instance, that the alleged reason may be negated on the applicant's own evidence: BHP Coal at [192] and see also Australian Red Cross v Queensland Nurses' Union of Employees (2019) 273 FCR 332 at [72] (Greenwood, Besanko and Rangiah JJ). Whilst the direct testimony of the decision-maker, if given, will need to be considered and may be a weighty consideration, whether or not the statutory presumption made by s 361 is rebutted will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the adverse action was taken. [85] Relying in large part upon the observations made by French CJ and Crennan J in Barclay at [41] and [45], including the observation that the question of why an employer took adverse action against an employee is a question of fact which much be answered in the light of all of the facts established in the proceeding, in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [27], Jessup J (with whom Rangiah J agreed) said this (emphasis added): In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question. [86] At [28], his Honour continued: In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer. (Emphasis added). 435 Further, at [92], Bromberg J explained: [92] To have correctly performed the statutory task required of him in relation to each contravention of s 340(1) found, the primary judge needed to be satisfied of the fact that a complaint made and relied upon by Mr Keenan as actuating the adverse action the subject of the contravention, was a substantial and operative reason for Ms Beaulieu (whom the primary judge held was the decision-maker) to have taken that action. In reaching that state of satisfaction, the primary judge was entitled to rely on the s 361 statutory presumption relating to the particular reason alleged by Mr Keenan as actuating the particular adverse action. That was so if the presumption had not been rebutted and thus remained operative. Whether the particular presumption had not been rebutted and remained operative had to be considered not merely by reference to the testimony of Ms Beaulieu, but by reference to all of the facts and circumstances relevant to whether the particular alleged reason was a reason which had actuated the particular adverse action in question. (Emphasis and additional emphasis added). 436 And at [116], in a passage which was in fact extracted by the primary judge at PJ [603], Bromberg J stated: [116] True it is that the disbelief of the decision-maker as to the reason given for the taking of adverse action will ordinarily be a weighty consideration and often a determinative consideration as to whether a reason asserted by an applicant is a substantial and operative reason for adverse action. However, neither that observation nor the s 361 statutory presumption itself, relieves a court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence. Whilst the statutory presumption casts an onus on the respondent to satisfy the court on the evidence before it that the asserted reason has been negated, it does not require that finding to be based solely on the evidence of the decision-maker or to be based solely on the evidence called or otherwise put before the court by a respondent. (Emphasis added). 437 It follows from the combination of the reasons in Barclay, Cummins and Qantas Airways 1 that: (a) direct and credible testimony from the decision-maker (or decision-makers) is capable of discharging the reverse onus in s 361 and it will usually be extremely difficult to discharge the onus absent such evidence; (b) however, direct testimony from that person (or persons) is not a necessary pre-condition for the discharge of the statutory presumption; (c) in any event, whether the reverse onus is discharged must be considered not merely by reference to the testimony of the purported decision-maker (or decision-makers), but by reference to all of the facts and circumstances relevant to whether the alleged reason was a reason which actuated the action in question; (d) the finding that the onus is discharged need not be based solely on the evidence of the decision-maker (or decision-makers) or on the evidence called or otherwise put before the court by a respondent. 438 Although the primary judge referred to Cummins, his Honour did not engage in the task of assessing all of the evidence including Mr Chatwin's denials. The primary judge moved from the premise that, having determined that the person put forward by LOR as having made the decision to terminate Mr Haley's employment (Mr Chatwin) had not, in fact, made the decision to terminate, the failure to call the person or persons who the primary judge considered had been involved in the decision to terminate meant, without more, that LOR had failed to rebut the presumption in s 361 of the FW Act. The primary judged erred in so finding. 439 It is wrong in point of principle to conclude that the presumption has not been rebutted merely because evidence was not led from the person or persons whom the Court considers took the adverse action. True it is that, absent such evidence, it may be very difficult for the respondent to discharge the onus imposed by s 361. But it does not inevitably flow from a failure to call such a person or persons that the onus has not been discharged. That is because it is not only direct testimony from the decision-maker as found that must be taken into account by the Court in determining whether the true reason or reasons for the taking of an alleged adverse action did not include the proscribed reasons. 440 It follows that the primary judge erred. (d) Did LOR discharge its onus on the evidence before the primary judge? 441 Ultimately, LOR's submission before me was that I should find that Mr Chatwin was the sole decision-maker. For the reasons set out above, I am satisfied that the primary judge erred in reasoning to the conclusions reached by his Honour. However, it does not follow that I am able to be satisfied that Mr Chatwin was in fact the sole decision-maker and that LOR rebutted the statutory presumption. That is largely because of the way the matter was conducted before me. 442 There was an assumption made by the parties both in their written and oral submissions that I had all the evidence before me and that I could make my own assessment of these matters. In substance, LOR contended that if I found that the primary judge erred, then it would follow that I would find that Mr Chatwin was the sole decision-maker. For his part, Mr Haley contended that even if I were to find that the primary judge erred, I would nevertheless find that LOR had not discharged its onus of establishing that Mr Haley was the sole decision-maker or that LOR had otherwise rebutted the statutory presumption contained in s 361 of the FW Act. 443 These contentions assumed that I was in as good a position as the primary judge to make these findings. However, as I have noted above, the compilation of Part C of the Appeal Book proceeded in a piecemeal way. I was not confident at the outset of the hearing of the appeal that I had been provided with all the relevant documents upon which to determine the matters that were put before me. Nor am I confident that this position has since improved to the point where I have all the necessary evidentiary materials. 444 The parties did not attend in their original written submissions to what would occur if I was persuaded that the primary judge had erred in some respects but not in others. I have been left in the unsatisfactory position where in order to determine the question, I would have to engage in an exercise of evaluation of the evidence (including oral testimony on matters going to witness credibility) and consideration of matters that have not been fully argued before me. 445 Specifically, to the extent that the parties' written and oral submissions addressed the question as to whether the primary judge erred (or did not err) by concluding that he was not satisfied that Mr Chatwin made the decision to terminate Mr Haley's employment, the parties' submissions did not address a range of other matters that would bear upon the resolution of that question. Those matters included the following questions as to what, if any, significance should be placed on: (a) Mr Chatwin having had oversight of the investigation other than the period during which he was on leave; (b) Mr Chatwin having reviewed a draft of the final Investigation Report dated 17 July 2020 before it was finalised; (c) Mr Chatwin having settled and issued the Show Cause Letter; (d) Mr Chatwin having participated in the Show Cause Meeting and the extent of his participation; (e) the commonalities or differences between the Show Cause Letter and the matters raised during the Show Cause Meeting, and the Termination Letter; and (f) whether Mr Chatwin's denials as to the reasons for terminating Mr Haley's employment including any of the proscribed reasons should be accepted or rejected. 446 Further, although the parties made some oral submissions and later filed supplementary submissions as to the paucity of evidence relating to the drafting and finalisation of the Termination Letter, the parties did not address in detail what, if any, consequences would flow from there being little evidence that Mr Chatwin had an involvement in the drafting or finalisation of that letter in light of the matters raised above. Mr Haley's submissions were essentially to the effect that this would mean that LOR had not discharged its burden, but did not address whether that would necessarily require rejection of Mr Chatwin's evidence as to his reasons for termination as set out in the First Chatwin Affidavit and his denials if it were otherwise established that Mr Chatwin had, in fact, made the decision to terminate Mr Haley's employment. For its part, LOR said little about the Termination Letter, other than that there was limited evidence as to its preparation and pointed to a document over which privilege had been claimed and which was not in evidence before the primary judge. 447 Nor did the parties squarely address other matters that would arise if I was satisfied that the primary judge erred in finding that Mr Chatwin was not the decision-maker because the power to make that decision rested with Mr O'Rourke and that he had made the decision. Specifically, the parties have not had the opportunity to address whether, in those circumstances, the evidence supported a finding as to whether Mr O'Rourke and others were involved in the investigation in a merely contextual way or made a material or indispensable contribution to it. Whilst Mr Haley submitted that this was ultimately a matter in respect of which LOR failed to discharge its onus, Mr Haley's submissions implied that the Court would be satisfied that there were other persons who made a material contribution to the decision. However, these matters were not developed by Mr Haley. For its part, LOR pointed out that it did make submissions in the proceedings below relying on Wong FFC, but these matters were not fully developed before me. 448 There were other matters which were briefly touched upon by Mr Haley's Counsel that would bear upon these questions. For example, there was evidence before the primary judge that those involved in the investigation and in the show cause process had knowledge of Mr Haley exercising workplace rights including in relation to the way the investigation was being conducted. There was also a suggestion raised by the evidence of the conversations that Mr Haley was having with Mr McDevitt that Mr Haley was being discouraged from making these complaints. There is also evidence indicating that Mr Haley's conduct during and in the course of the investigation and show cause process did not "align" with LOR's expectations. These matters were not explored in depth, but would need to be evaluated in assessing both the role of other persons in the decision-making process and in determining whether to accept or reject Mr Chatwin's denials that Mr Haley's exercise of workplace rights played no part in the decision to terminate his employment. 449 Regrettably, I am not in a position to determine these matters. I find myself in the position of the Full Court in Australian Red Cross (at [83]) where I do not think that I can "undertake the task of weighing and assessing the evidence" including the assessment of Mr Chatwin as a witness and, in particular, an assessment of his denials. 450 I had raised with the parties whether, in the event I found error in relation to these grounds, the matter should be remitted to the primary judge or to a different judge of the Court below. LOR contended that having regard to adverse findings made against it by the primary judge both in the primary judgment and in the Compensation Judgment, the matter should be remitted to a different judge. For his part, Mr Haley contended that the matter should be remitted to the primary judge due to his Honour's familiarity with the matter and in the interests of time and costs. 451 As I have noted, there is presently an appeal that has been instituted to this Court from the Compensation Judgment in respect of which (as I understand it) further findings made by the primary judge are being challenged by LOR. In those circumstances, I do not consider that it would be appropriate for the primary judge to have to redetermine questions raised by this appeal. Further, any advantage that the primary judge had in having heard the evidence has been diminished by the delay since the primary judge heard that evidence. As regrettable and unfortunate as it is, I am compelled to the conclusion that aspects of Mr Haley's adverse action case (but not its entirety) should be remitted to a different judge. It will be a matter for that judge to determine the relevant questions having regard to my reasons in this judgment. In my mind, the matters that will need to be determined are as follows (though the precise formulation of them and others will be a matter for that judge): (a) Has LOR discharged its onus of establishing on the balance of probabilities that Mr Chatwin made the decision to terminate Mr Haley's employment, taking into account the totality of the evidence; (b) In addressing this question, to the extent that the evidence discloses that other persons, including Mr O'Rourke and others were or may have been involved in the decision-making process or processes: (i) which process or processes were they involved in; and (ii) did LOR establish on the balance of probabilities that Mr Chatwin was the decision-maker because the involvement of others was not material or indispensable and merely contextual in the sense discussed in Wong FFC; (c) Irrespective of whether LOR established that Mr Chatwin was the decision-maker or not, did LOR establish for the purpose of s 361 of the FW Act that the reasons for the termination of Mr Haley's employment did not include as a substantial and operative reason the reason that Mr Haley had exercised one or more workplace rights as found in the primary judgment? 452 It will be open to the parties to raise on the remitter whether any other related questions arise and how they should be formulated consistent with my reasons. However, it is appropriate that I should draw attention to the authorities that prevail upon a remitter, which were most conveniently summarised in Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; (2022) 403 ALR 498 at [40]-[51] (Jackson J), and approved by the Full Court in Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179 at [96] (Banks-Smith, Colvin and O'Sullivan JJ) and applied in Crowley v Worley Ltd (No 2) [2023] FCA 1613 at [6]-[10] (Jackman J). In particular, I draw attention to the observations made by Finkelstein J in Community and Public Sector Union v Telstra Corp Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324 at [15] that a remitter is "…a continuation of a trial that has already begun, though interrupted by a final order which has been set aside", and at [17] that the "further hearing" is a "continuation… where the parties can only mend their hand or change course in accordance with well known rules". Within these limits, it will be a matter for the judge redetermining the relevant issues on the remitter as to whether to hear from Mr Chatwin and have his evidence subjected to cross-examination in order to make credibility findings, but without granting leave to LOR to file any further evidence. These are matters to be taken up in the remitter. Any application by either party to re-open their respective cases will be matter for determination in accordance with those well known principles. 453 Depending upon the findings that are made on the remitter, it may be that the balance of any questions remaining in the proceedings that have not yet been determined, such as the question of penalty in respect of contraventions that are established, should also be determined by the new judge. 454 In light of the fact that Mr Haley's employment was terminated in July 2020, these proceedings having been commenced in that year, and the fact that there are now a multiplicity of judgments and appeals, consideration may need to be given to whether the redetermination warrants expedition, subject to the usual exigencies that confront the Court below. The question of allocation of these proceedings to a different judge to the primary judge and the timeliness by which these matters can be attended to, having regard to the many competing demands upon the resources of the FCFCOA, will ultimately be a matter for the Chief Justice of that Court. F.8 Ninth Alleged Factual Error: dishonesty was not alleged in LOR's response 455 LOR challenges the primary judge's finding at PJ [549] that it had not alleged dishonesty in its pleading in the proceedings below. That finding was made in the context of his Honour's discussion of the allegation by LOR that Mr Haley had dishonestly failed to disclose saying the Offensive Words in the 8 July Haley Statement. The primary judge noted at [532](a) that this was not an allegation made in LOR's response to Mr Haley's application. Having reviewed that pleading, I agree with his Honour's assessment. At paragraph 34 of LOR's response, it pleaded that certain statements made by Mr Haley were false, and that he knew those statements were false at the time he made them; however, LOR did not plead that Mr Haley was dishonest by failing to disclose in the 8 July Haley Statement that he had said the Offensive Words to the Pointons. 456 Mr Haley points out that, despite finding that LOR had not alleged dishonesty, the primary judge proceeded to determine LOR's case based on Mr Haley's alleged dishonesty. LOR did not respond to Mr Haley's submission in this regard and did not address this question during the hearing of the appeal. Mr Haley's submission should be accepted. Even though the primary judge concluded that LOR had not pleaded dishonesty, his Honour nevertheless dealt with LOR's case on this point: see PJ [533], [546]-[550]. Rather than suggesting a "partisan approach", as submitted by LOR, this suggests that the primary judge was willing to overlook deficiencies in LOR's pleadings to allow it to run the defence it wished to run. 457 I reject the Ninth Alleged Factual Error. G. THE SUMMARY DISMISSAL GROUND 458 LOR contended that the primary judge erred by finding that Mr Haley had not engaged in serious misconduct warranting summary dismissal. Its primary contentions are that: (a) the primary judge: (i) did not direct his attention to Mr Haley's conduct on the night in question and, alternatively, did not explain why that conduct did not give rise to serious misconduct warranting summary dismissal; (ii) should have found that the circumstances in which Mr Haley said the Offensive Words were sufficient to constitute serious misconduct warranting summary termination; (iii) failed to account for Mr Haley having been the most senior attendee at the gathering during which the Incident occurred and that his failure to set an example for his subordinates was inconsistent with a continuing employment relationship with LOR, (the First Serious Misconduct Contention); (b) the primary judge erred by finding that Mr Haley had not been dishonest in the investigation and should have found to the contrary (the Second Serious Misconduct Contention); (c) the primary judge misdirected himself in determining whether, for the purpose of cl 2 of Section 4 of the Employment Contract, Mr Haley had engaged in conduct that caused an imminent and serious risk of reputational harm to LOR in that the primary judge conflated whether LOR's reputation was in fact harmed, as opposed to the risk of it being harmed (the Third Serious Misconduct Contention). 459 LOR submitted that the primary judge's errors should be corrected by finding that Mr Haley engaged in misconduct warranting summary termination, including that he had been intentionally dishonest. 460 Mr Haley submitted that the primary judge's conclusion that Mr Haley's conduct did not provide a sufficient basis for summary dismissal was in a different category to the other challenges made by LOR to findings of fact made by the primary judge. Mr Haley contended that the primary judge's findings and conclusions on this question involved "elements of fact, degree, opinion or judgment" and were made with "the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment": Branir at [24]. It was further contended that the nature of the issue as to a conclusion of misconduct warranting summary termination was one "such that (though not a discretion) there cannot be said to be truly one correct answer": Branir at [25]. Mr Haley submitted that the availability of a different view on the question does not without more demonstrate error. 461 To succeed on appeal, it is not enough for LOR to establish any error in fact-finding by the primary judge as to his conclusion that Mr Haley had engaged in serious misconduct. Rather, LOR needed to establish an error in the ultimate conclusion that Mr Haley's conduct did not amount to misconduct. Errors in fact-finding in the primary judge's reasoning process along the way are relevant in the determination as to whether his Honour erred as to the ultimate conclusion. For the reasons that follow, I accept some of LOR's contentions as to errors that the primary judge made, but I am not satisfied that the primary judge's ultimate conclusion that Mr Haley did not engage in misconduct was wrong. G.1 Relevant principles 462 As set out above, cl 2 of Section 4 of the Employment Contract conferred upon LOR a right to summarily terminate Mr Haley's employment. Relevantly, that clause provided as follows: If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you: (a) engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment; (b) engage in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company… 463 The Termination Clause applied where Mr Haley was "guilty of misconduct or commit[ted] a serious or persistent breach of a term or condition of" the Employment Contract including (without limitation) in the circumstances specified in each subclause. In the proceedings below, LOR contended that this clause conferred upon LOR a broader right to summarily dismiss Mr Haley than that which is available at common law, with the result that the Employment Contract displaced the common law right to terminate without notice. Despite this, the primary judge stated at PJ [536] that he did not understand LOR to have submitted that the right to dismiss under the Termination Clause was broader than that at common law. The primary judge also proceeded on the basis that the word "misconduct" as contained in the clause was informed by the common law principles. 464 LOR did not challenge this aspect of the primary judge's reasons and did not dispute his Honour's identification of the applicable principles. During the course of oral submissions, I raised these points directly with Senior Counsel for LOR and it was confirmed there was no ground of appeal seeking to challenge the primary judge's finding about the application and operation of the Termination Clause as informed by common law principles as to misconduct. Senior Counsel for LOR further submitted that LOR was content to proceed on the basis that Mr Haley's conduct met the "common law standard" of misconduct warranting summary termination. I have proceeded on that basis, and I will return to the significance of LOR's concession when dealing with LOR's contentions about Mr Haley's conduct insofar as LOR relied upon cl 2(b) of the Termination Clause. 465 It followed that LOR did not contend on appeal that the words "guilty of misconduct" or a "serious or persistent breach of a term or condition of this document" called for the evaluation and characterisation of Mr Haley's conduct in a way different to the common law meaning of "misconduct", that is, misconduct justifying summary dismissal: see, e.g., North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 (Smithers and Evatt JJ), 616 (Franki J). The approach that LOR took on the appeal was also consistent with the fact that its termination letter referred to termination on the grounds of "serious misconduct", even though the Termination Clause referred to "misconduct". 466 Although the applicable principles as to "serious misconduct" were not in dispute, it is convenient to set some of them out: (a) serious misconduct may be established where the employee's conduct was, in respect of important matters, incompatible with the fulfilment of the employee's duty or involved an opposition, or conflict between his interest and his duty to his employer or impeded the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, but the conduct of the employee must itself involve the incompatibility, conflict, or impediment or be destructive of confidence: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81-82 (Dixon and McTiernan JJ); (b) an actual repugnance between the employee's acts and the employment relationship must be found and it is not enough that grounds for uneasiness as to future conduct arises: Blyth at 82 (Dixon and McTiernan JJ); (c) summary dismissal is not justified by a mere breach of the contract of employment, as what is required is a "radical breach of the relationship… inconsistent with its continuance": Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151 (Isaacs ACJ). To amount to serious misconduct, the conduct must be such so as to indicate that the employee no longer intends to be bound by the contract: Adami at 155 (Gavan Duffy and Starke JJ); (d) to justify dismissal, an employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract, or actual conduct which is repugnant to the relationship of employee and employer: Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 at [250] (Gillard J); (e) however, misconduct does not need to amount to a repudiation of the contract for summary dismissal to be justified: Sautner at [13] and [15] (Tracey, Gilmour, Jagot and Beach JJ), citing Rankin at [253]-[254]; (f) serious misconduct may be established where the employee's conduct could and did destroy the trust and confidence which is essential to the employer/employee relationship including by reference to the employee's senior position, wide duties and powers, and the capacity of the misconduct to undermine the culture which the employer assiduously promotes: Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29 at [143] (McLure P). 467 Serious misconduct may be established by a one-off serious act of misconduct which would justify dismissal, even though the probabilities are high that it would not occur again: Rankin at [254]. On the other hand, there are circumstances where "isolated conduct" would not suffice to warrant summary termination for serious misconduct. In Rankin, Gillard J stated at [250]: Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature. 468 As is obvious, the question is always one of fact and degree. In Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381, Macfarlan J (with whom Ward and Leeming JA agreed) referred to the following authorities on this point at [88]-[89]: In Blyth Chemicals Ltd v Bushnell [1933] HCA 8; 49 CLR 66, Starke and Evatt JJ said: As manager for the appellant, the respondent was in a confidential position. And it is clear that he might be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and the appellant. The degree of misconduct that will justify dismissal is usually a question of fact (at 72-73, citations omitted). In support of the last sentence, their Honours cited Clouston & Co Ltd v Corry [1906] AC 122 in which there were allegations against the employee of "misconduct, drunkenness [and] the use of foul language in public" which were "virtually admitted" to be true (at 129). The House of Lords held that the case should be left to the jury because whether the facts proved justified the employee's dismissal was a question of fact. Their Lordships continued: In the present case the tribunal to try all issues of fact was a jury. Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of a contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal. Certainly when the alleged misconduct consists of drunkenness there must be considerable difficulty in determining the extent or conditions of intoxication which will establish a justification for dismissal. The intoxication may be habitual and gross, and directly interfere with the business of the employer or with the ability of the servant to render due service. But it may be an isolated act committed under the circumstances of festivity and in no way connected with or affecting the employer's business. In such a case the question whether the misconduct proved establishes the right to dismiss the servant must depend upon facts — and is a question of fact. If this be so, the questions raised in the present case had to be tried by jury (ibid). (Emphasis added). 469 More recently, in Eldridge v Wagga Wagga City Council [2021] NSWSC 312, Bell P (as his Honour then was) stated at [289]: The general principles as to what kind of act would entitle or justify the summary dismissal of an employee are largely settled and well established, albeit that "the resolution of this question is a matter of fact alone" in that "there is no fixed rule of law defining the degree of misconduct which will justify dismissal": Clouston & Co Ltd v Corry [1906] AC 122 at 129. Indeed it has been said that "the degree of misconduct that will justify dismissal is usually a question of fact": Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 73; [1933] HCA 8. (Emphasis added). 470 It falls to the employer to establish that the employee engaged in certain conduct and that the conduct gave rise to a legal right to terminate employment without notice: Daynes v I-MED Central Queensland Pty Ltd [2024] NSWSC 1064 at [64]; Eldrige at [293]. Often, the factual enquiry will involve a two-step process: the first being to characterise the conduct (as found by the trier of fact) as amounting to serious misconduct, and the second being the determination as to whether that conduct was serious enough to warrant summary termination: Willis at [98] and [101]. G.2 Consideration 471 Before turning to address each of LOR's contentions, it merits observation that the primary judge methodically considered and parsed LOR's pleadings, as well as its opening and closing submissions, to identify all of the contentions that it had put in support of its case that Mr Haley had engaged in serious misconduct. Even where LOR's submissions did not entirely accord with its pleadings, the primary judge nevertheless proceeded to consider and determine the case as put by LOR in its submissions: see PJ [534]-[580]. 472 In its written closing submissions below, LOR pointed to three "grounds" of misconduct upon which it relied to defend the summary termination of Mr Haley's employment. The first ground focussed upon Mr Haley's conduct on the night in question, the second ground focussed upon the risk to reputation arising from that conduct, and the third related to Mr Haley's alleged lack of candour in the investigation. The primary judge dealt with each of these grounds at PJ [534]-[580]. LOR contended that the primary judge's conclusions in relation to each of these grounds was erroneous. I do not agree. G.2.1 The First Serious Misconduct Contention 473 LOR contended that the primary judge did not properly consider Mr Haley's conduct during the night in question. It further contended that the primary judge failed to consider the fact that Mr Haley was the most senior attendee at the gathering during which the Incident occurred, and that Mr Haley had failed to set an example for his subordinates. It was submitted that the primary judge did not explain why Mr Haley's conduct did not give rise to serious misconduct warranting summary dismissal. LOR contended that the primary judge should have found that the circumstances in which Mr Haley said the Offensive Words were sufficient to constitute serious misconduct warranting summary termination, and that I should so find. 474 The primary judge's consideration of Mr Haley's conduct on the night in question was framed by reference to the three ways in which LOR had put its case as to Mr Haley's alleged serious misconduct. It was only LOR's first ground of misconduct that centred upon Mr Haley's conduct on the night in question. The entirety of LOR's written closing submission in support of this ground of misconduct was as follows: First ground – misconduct 137. The first ground is that, by his conduct in becoming intoxicated and saying the Offensive Words to Mr and Mrs Pointon, Mr Haley committed "misconduct" within the meaning of clause 2 in Section 4 of the Employment Contract. On the evidence that is before the Court, there can be no doubt that Mr Haley said the Offensive Words on 3 July 2020. His language was obscene, highly offensive, and was directed to two members of the public whose property was being rented by LOR and used by its employees in connection with their work on the Bushfire Project. Mr Haley's conduct was entirely unbefitting of someone who was employed in a senior management role at LORAMS. His behaviour plainly comprised "misconduct" that was sufficient to warrant summary dismissal. (Emphasis and additional emphasis added) 475 Other than the inclusion of the word "intoxicated", this submission was consistent with LOR's pleaded case as contained in its Response: see PJ [529]. 476 As is evident from LOR's closing submission, LOR's first ground of misconduct contained the following integers: (a) Mr Haley had become intoxicated; (b) Mr Haley had said the Offensive Words; (c) Mr Haley had said and directed the Offensive Words to the Pointons; (d) Mr Haley's language was obscene and highly offensive; (e) the Pointons were two members of the public whose property was being rented by LOR and used by its employees in connection with an important project; and (f) this conduct was unbefitting of someone occupying Mr Haley's senior management role. 477 The irreducible minima of LOR's first ground of misconduct required it to establish not only that Mr Haley had said the Offensive Words, but that he had said them to, and directed them towards, the Pointons. It was this conduct that LOR contended was inconsistent with the senior management role held by Mr Haley. And, it was this case that the primary judge addressed at PJ [534]-[539]. At PJ [534], the primary judge extracted the entirety of LOR's written closing submissions in support of its first ground of misconduct. At PJ [538], the primary judge identified the "difficulties" with LOR's case before concluding at PJ [539] that LOR had not established that Mr Haley had relevantly engaged in serious misconduct. 478 In concluding that the first ground of misconduct had not been established, the primary judge accepted that Mr Haley had said the Offensive Words but found that the Pointons had not complained that Mr Haley had said the Offensive Words and, accordingly, reasoned that they had not heard the Offensive Words. The primary judge reasoned to these latter conclusions by examining in detail the actual complaints the Pointons had made and placing them in context of his analysis of the Audio Recording including as to the sequence of the exchanges that were there recorded as between a number of people and the fact that the Offensive Words were only audible on that Recording with concentrated effort and when one's attention is consciously directed away from the foreground noise. 479 The primary judge's findings that the Pointons had not heard or did not complain about hearing the Offensive Words did not dispose of LOR's case. That is because LOR had contended that Mr Haley had said and directed the Offensive Words to the Pointons. In argument before me, LOR contended that it was beside the point that the Pointons did not hear the Offensive Words. 480 It is true that the way in which LOR put its case below did not hinge upon the Pointons having heard or complained about hearing the Offensive Words. Its case was also that Mr Haley had said the Offensive Words and directed them to the Pointons and that this, in the context of having become intoxicated and being in the presence of subordinates, was conduct that was inconsistent with his senior managerial position. It was submitted that the primary judge did not deal with whether Mr Haley had said or directed the Offensive Words to the Pointons, irrespective of whether they heard them. However, in my view, these findings may be implied from aspects of the primary judge's reasoning. For example, the primary judge found that amongst the "difficulties" with LOR's case was that it (PJ [538](b)): … [did] not identify the evidence on the basis of which it submits that Mr Haley's uttering "the Offensive Words" was "directed to" the "two members of the public". 481 Later, at PJ [563](a), in the context of determining the third ground of misconduct (regarding dishonesty), the primary judge stated: … First, it is not a "fact" that Mr Haley said "the Offensive Words" "to" Mr and Ms P. Mr and Ms P did not allege Mr Haley said "the Offensive Words" to them; and I have found that Mr and Ms P did not hear "the Offensive Words". 482 Further, the primary judge also considered at PJ[538](d) and (e) whether LOR had established its case assuming that Mr Haley had directed the Offensive Words to the Pointons and contrary to his findings that the Pointons had not heard them. 483 These various parts of the primary judgment disclose that the primary judge was not satisfied that LOR had established that Mr Haley had said or directed the Offensive Words to the Pointons, though it is correct that the primary judge did not say so in express terms. Even if the primary judge erred in not making an express finding to this effect, for the reasons set out below, LOR did not establish that Mr Haley had said or directed the words "Go home you fucking silly old cunt" to the Pointons. 484 As a starting point, it is necessary to observe that LOR tied itself to a case that Mr Haley had said and directed the Offensive Words to the Pointons. However, its case in this regard needs to be unpacked. The expression "Offensive Words" was used to denote the full words "Go home you fucking silly old cunt . . . Go home old man, old lady. Go home, go home, go home, go home": PJ [142]. 485 It was no part of LOR's case that Mr Haley had engaged in misconduct by uttering, saying and directing to the Pointons only the words "Go home old man, old lady. Go home, go home, go home, go home." Rather, LOR's case was that it was the combined effect of Mr Haley saying those words together with saying "Go home you fucking silly old cunt" that gave rise to misconduct. Consistently with this, the primary judge observed that LOR did not contend that Mr Haley's conduct in saying the words "Go home old man, old lady. Go home, go home, go home, go home" were of themselves sufficient to amount to misconduct: PJ [538](b) and [539]. LOR did not contend otherwise in the appeal. 486 The primary judge reasoned at PJ [152]-[153] that it was misleading to represent the Offensive Words in the way that expression was defined because it did not account for the actual sequence of discussions and commotion as recorded in the Audio Recording. This accords with my own assessment of the Audio Recording. 487 The primary judge also found at PJ [137], the particularly offensive comments "Go home you fucking silly old cunt" are only audible on the Audio Recording with concentrated effort. The primary judge's assessment of the Audio Recording in this respect also accords with my own assessment. 488 It followed from the above that, in the way that LOR advanced its case, LOR had to establish that Mr Haley had said the words "Go home you fucking silly old cunt" to, and directed them towards, the Pointons. LOR did not establish this aspect of its case. 489 The evidence which Mr Haley gave in cross-examination did not establish that he had said the words "Go home you fucking silly old cunt" to the Pointons or directed it towards them. At its highest, Mr Haley's evidence was that he could not recall doing so. As a result, his evidence did not establish the necessary fact. It is convenient to set out relevant portions of Mr Haley's cross-examination on this topic, which was as follows: COUNSEL: Mr Haley, you're able to recognise your own voice on the recording that was just played, aren't you?---On that particular recording, just about, yes, Mr Jedrzejczyk. Yes. The answer is yes, isn't it? You recognise your own voice, yes?---Yes. … All right, and do you admit that you said those words to Mr and Mrs Po[i]nton, Mr Haley?---No. You don't?---I admit that I said the words. All right. So let me just understand, to make sure that I understand correctly. You admit that you said the words, "Go home, you fucking silly old cunt. Go home, old man, old lady." You admit that you said those words?---The only words I heard on that voice recording and that was audible to me was "silly old cunt", just then. … THE WITNESS: So I got the second part and – the "go home, go home" and "silly old cunt" in the middle. I couldn't recognise the rest of it, Mr Jedrzejczyk, or it's not audible to me. COUNSEL: All right, all right. Now, I understand what you're saying about what you could hear, Mr Haley. I understand that. My question is slightly different in that as a – independently of what you heard on the recording, do you understand, do you admit that you said those words to Mr and Mrs Po[i]nton?---I don't remember saying those words to Mr and Mrs Po[i]nton. So you don't recall saying those words?---I don't recall saying those words. All right. So when you say that, does that mean that you might have said them, but you cannot now recall whether you did?---It means I don't remember what was said at that particular moment, Mr Jedrzejczyk. And the recording hasn't been able to assist you in refreshing your recollection about that matter, is that right?---The recording has assisted me in recollecting the words "silly old cunt" and "go home, old man, old lady" and that's all. All right. So does - - -?---Beyond that, I don't recall that particular exchange. All right. So I think I understand you correctly, Mr Haley, that you accept, at least, you said the words that you were able to hear on the recording, which you just relayed just then. Is that right?---Yes, Mr Jedrzejczyk. All right, and do you accept, Mr Haley, that you said those words to Mr and Mrs Po[i]nton?---I don't recall, Mr Jedrzejczyk. You don't recall. All right. So again, just so that everybody is clear, does that mean that you agree that you may have said them but you just can't remember now whether you did or not. Is that right? Sorry, I should rephrase that question to be fair?---Yes, please, yes. You – I should put it this way. You are saying that you may have said those words to Mr and Mrs Po[i]nton but it's just that now you can't remember whether you did or not?---No. The same answer applies. The recording helps me identify certain words which are me and but, beyond that, I don't accept that – sorry, can you repeat the question and I will give straight answer. Yes, Mr Haley. So I asked you whether you accepted that you said those words to Mr and Mrs Po[i]nton and you said I don't recall. And then I said does that mean, by your answer, that you may have said the words to Mr and Mrs Po[i]nton but you now cannot remember one way or another whether you did or not?---I don't remember the particular point and who was there. I don't remember what was said and why I said it. I accept that Mr and Mrs Po[i]nton were two of the people there and they may have been the recipient of that, but there were also 10 other people there. There was a lot of discussion and argument, you know, mini-arguments going on, and I don't recall the – every interaction that was going on, Mr Jedrzejczyk. I think you've agreed that you used the words "old man, old lady." You accept that, don't you, Mr Haley?---Yes. Yes. And Mr and Mrs Po[i]nton, without being unfair to them, were the only persons present that night who could plausibly be described as "old man" and "old lady." That's right, isn't it?---No. You don't accept that?---No… … What I'm putting to you, Mr Haley, is that there was no one else at the party that you were referring to when you were saying, "old man, old lady," was there, Mr Haley?---There could have been, Mr Jedrzejczyk. There could have been?---Yes. There could have been?---There was at least one person. And who was that, Mr Haley?---Definitely Mr Grearson who was older than Mr Po[i]nton and possibly one of the temporary admin – there was a number of females there and so there were males and females there of different ages, so – yes. Who were the same age as Mrs Po[i]nton. Is that what you're suggesting?---I – I'm not sure how old Mrs Po[i]nton is. I remember seeing Mr Po[i]nton so I can roughly gauge his age. But I'm not sure how old Mrs Po[i]nton is. And on your case, Mr Haley, when you said "old man, old lady" together, that was intended to be a combination of Mr Grearson and some other female attendant at the party. Is that your evidence?---I don't recall what I said and why I said it. "Old man" and "old lady" means mum and dad where I come from. Mr Haley, do you understand that - - -?---It's not an offensive term, by the way. … I should say, when you said: Go home, old man, old lady – you were not directing those words at Mr and Mrs Po[i]nton. That's your evidence, is it?---I said I may have directed them to Mr and Mrs Po[i]nton. Well, you did, didn't you, Mr Haley?---I don't recall. Well, now you say you don't recall?---I don't recall. Well, which is it, Mr Haley? Is it that you don't recall or is it that you may have?---I don't recall. HIS HONOUR: Well, they're not inconsistent. When you don't recall, you don't recall. And asking a witness, everyone does it, whether you put it, well, of course, he's not saying he didn't do it. So when he says, "I don't recall," the possibility is open that he did and that's for me to determine. It's really a rare relevance that a witness says he could have or could not have. He doesn't recall. He's not positively saying he didn't say it. So they're not inconsistent, what you're putting to him. COUNSEL: Yes, your Honour. … And so I think, would you accept, Mr Haley, that the offensive words that you said – you said them intending that they were directed towards Mr and Mrs Po[i]nton. You would agree with that, wouldn't you?---I don't recall, Mr Jedrzejczyk. You can't remember one way or another; is that right?---That's right. Mr Haley, can I ask you this: the language that you used – and I've already subjected everyone to it multiple times, so I won't unless it's necessary – but the language that you used towards Mr and Mrs Po[i]nton was offensive, wasn't it, Mr Haley?---I accept – I don't accept that it was directed at Mr and Mrs Po[i]nton or that they heard it, but I acknowledge that those words on their own are offensive, and that's a momentary lapse of judgment on my part to use that kind of language. So I do accept that, Mr Jedrzejczyk. … (Emphasis and additional emphasis added). 490 A few matters emerge from this evidence. 491 First, Mr Haley repeatedly said he had no independent recollection of saying the Offensive Words. Rather, his evidence was that he had been assisted by the Audio Recording and had relied upon it to recognise he had said the Offensive Words. He accepted that the words were offensive and said that this was a momentary lapse of judgment. However, Mr Haley's acceptance that he had said the Offensive Words did not amount to an admission that he had said them to or directed them towards the Pointons. 492 Second, Mr Haley was repeatedly pressed about whether he had said the Offensive Words "to" or directed them towards the Pointons. He was also pressed about the fact that he intended the Offensive Words to be heard by the Pointons. These questions did not discriminate between which parts of the Offensive Words were directed to the Pointons, but Mr Haley's consistent evidence was that he could not recall. 493 Third, and relatedly to the second point, Mr Haley accepted that he "may" have directed the words "Go home, old man, old lady" to the Pointons. He sought to explain away his conduct by suggesting that there may have been other older people present at the time to whom these words were directed, but the primary judge found that this evidence lacked credibility: PJ [149]. However, even allowing for the lack of credibility of that evidence, it did not follow that Mr Haley had said the words "Go home you fucking silly old cunt" to the Pointons. 494 In relation to these matters, the primary judge reasoned as follows: [148] LOA also submits that "[r]emarkably, Mr Haley also stated in cross-examination that he could not recall whether he said the Offensive Words . . . to [Mr and Ms P]". Given I am not satisfied Mr Haley was false in his evidence that he does not have a recollection of saying "the Offensive Words", and that I have accepted that Mr Haley does not have an independent recollection of uttering "the Offensive Words", I do not accept as remarkable Mr Haley's evidence that he does not recall whether he said "the Offensive Words" "to" Mr and Ms P. Quite apart from this, the audio recording suggests that Ms P perceived that Mr Haley was not directing to her or to Mr P his chanting "go home old man, old lady, go home, go home, go home, go home". When she first noticed Mr Haley chanting, Ms P asked "And what's that one's name?" That question was not directed to Mr Haley, but appears to have been directed to Mr Grierson. Ms P first addressed Mr Haley when she asked Mr Haley his name twice; and Mr Haley first addressed Ms P when he responded to the second time she asked that question; and it is at that time that Ms P and Mr Haley engaged in what can reasonably be characterised as a "conversation", although a very short conversation. [149] It is the case that Mr Haley's evidence that there could have been some person, other than Mr and Ms P, to whom he directed the words "old man, old lady", lacks credibility. But the answer Mr Haley gave was to a question calling for his opinion or speculation about whether words he says he did not recall saying could only have been directed to Mr and Ms P. Mr Haley's opinions on that question are irrelevant, it being a matter for me to determine, to the extent it is relevant, whether "the Offensive Words" were directed to Mr and Ms P. In any event, I am not prepared to infer from Mr Haley's incredible opinion or speculation that it could have been some person, other than Mr and Ms P, to whom he directed the words "old man, old lady", that Mr Haley is not a witness of credit. As I have already noted, Mr Haley's account of the events that occurred during the Incident is to a significant degree corroborated by the accounts given by other employees. 495 The primary judge had the advantage of viewing and observing Mr Haley give evidence and being cross-examined. With that benefit, whilst the primary judge considered an aspect of Mr Haley's evidence to be lacking in credibility, his Honour otherwise accepted that Mr Haley had no recall of having said the Offensive Words "to" or directing them "towards" the Pointons. The primary judge rejected that Mr Haley's evidence was evasive and ambiguous. LOR did not articulate the basis upon which I could, or should, disturb these findings based on the primary judge's assessment of Mr Haley as a witness. 496 Despite these findings, LOR invited me to draw the inference that Mr Haley had said and directed the words "Go home you fucking silly old cunt" to the Pointons. LOR bore the onus of establishing this fact. The fact that Mr Haley did not recall saying these words to the Pointons did not assist LOR in establishing the fact. The highest the evidence went was Mr Haley's admission in the Reflection Email that he used offensive language "in the vicinity" of members of the public, but did not delineate as to which words were offensive. Further, LOR adduced no evidence from the Pointons or any other witness of fact that they saw and/or heard Mr Haley say the words "Go home you fucking silly old cunt", let alone that they saw or heard these words being directed to the Pointons. Moreover, having reviewed each of the Witness Accounts, LOR's investigation team led by Mr Curnow-Rose did not ask any of the witnesses whether they heard the words "Go home you fucking silly old cunt". Nor were the Pointons asked this question. As I have already stated, this is all the more remarkable in circumstances where LOR was in possession of the Audio Recording on and from 6 July 2020. 497 Undeterred by all of these fundamental problems with the way in which it advanced its evidentiary case, LOR invited me to infer that Mr Haley had said and directed the words "Go home you fucking silly old cunt" to the Pointons from two facts. The first being that Mr Haley had admitted saying those words and the second being that Ms Pointon had asked for Mr Haley to be identified shortly after those words were said. As to the first contention, as I have set out above, the fact that Mr Haley admitted saying the Offensive Words did not mean that he was saying or directing them towards the Pointons. These words were clearly about the Pointons. However, it does not follow that they were conveyed in some form to the Pointons, which is the premise that the primary judge rejected. I do not consider that the primary judge erred in rejecting that premise on all of the evidence. As to the second contention, for the reasons set out at [199]-[200] I am not satisfied that Ms Pointon made the enquiry as to Mr Haley's name upon hearing the words "Go home you fucking silly old cunt". 498 Returning to LOR's other submissions, I reject the contention that the primary judge did not consider Mr Haley's conduct on the night in question. LOR's contention misses the point that the primary judge considered Mr Haley's conduct on the facts as found by the primary judge and in the context of the events that occurred during the Incident. The matters set out at PJ [538](a)-(c) disclose that the primary judge considered that there were a number of contextual matters that militated against a finding that Mr Haley had engaged in misconduct as advanced by LOR. Those contextual facts included that the Pointons were not merely two members of the public but were the persons from whom the Pambula Property had come to be leased, the Pointons had exhibited verbal and physical aggression including by demanding all the occupants to leave (albeit that his Honour incorrectly considered this was a demand they had no right to make) and had made physical contact with Mr Adam Neely. The primary judge concluded that, having regard to all these contextual facts, Mr Haley's conduct (on the facts as established by the evidence) did not amount to misconduct. For these reasons, I reject LOR's contention that the primary judge did not consider Mr Haley's conduct on the night in question or, alternatively, did not explain why that conduct did not give rise to misconduct warranting summary termination. 499 LOR nevertheless contended that the primary judge erred by making erroneous findings of fact along the way to his conclusions, including by finding that the Pointons had no right to demand the occupants of the Pambula Property leave. For the reasons set out at in Part F.2, I have found that the primary judge erred by finding that the Pointons had no right to demand the occupants leave the Pambula Property, but it did not follow that they had such a right or that this would make any difference to the ultimate conclusion reached by the primary judge. 500 LOR contended that I should review all of the evidence and correct the primary judge's conclusions by finding that Mr Haley engaged in serious misconduct warranting summary termination having regard to the following circumstances: a. the Respondent was a very senior employee, travelling for work and the most senior employee in attendance at a gathering of employees in accommodation paid for by the employer; b. the premises were rented for the use of employees in a region where accommodation was scarce; c. the premises were subject to a strict "no party" policy; d. the owners of the premises were "old" in the assessment of the Respondent; e. the owners of the premises had twice earlier on the evening in question asked that the noise cease as it was disturbing their mother who lived on the premises; and f. it was an express term of the Respondent's employment that he treat everyone with respect and set an example for fellow employees. 501 LOR's contentions in this regard entirely ignored the balance of the evidence it adduced in the form of the Witness Accounts. It also entirely ignored the primary judge's rejection of LOR's assertions as to what occurred during the Incident at PJ [205], his Honour's evaluation of the actual evidence before him at PJ [207]-[209] and his ultimate findings about those matters at PJ [215]. 502 Critically, LOR sought to establish its case without calling evidence from any witness of fact as to the events leading up to, during and immediately after Incident. Mr Haley had admitted some matters, but contested others. LOR simply relied upon the contents of the Investigation Report and Witness Accounts, together with the accounts given by the Pointons. Neither in the proceedings below nor on appeal did LOR seek to assist the respective Courts as to how it expected findings of fact to be made in its favour in the absence of direct evidence that could be challenged and tested in the usual course of cross-examination. On appeal, LOR's contentions appeared to proceed on the basis that it could make out its case entirely upon the admissions made by Mr Haley and the Audio Recording. However, this did not address those matters in respect of which Mr Haley disputed aspects of LOR's factual assertions. As to the use that could be made of the Witness Accounts, Senior Counsel for LOR submitted as follows: HIS HONOUR: Okay. So your submission is I should have no regard to any of the records of interview? COUNSEL: Yes, your Honour. For this purpose. HIS HONOUR: Including the complaints from [the Pointons]? COUNSEL: Yes, your Honour. It's not direct evidence. It's not been challenged in Court. It's admitted under the business records as the investigation report, which is part of the business records. That doesn't make it credible. It just makes it part of the evidence supportive of the case. 503 Counsel for Mr Haley pointed out that the evidence contained in the Witness Accounts was in fact relied upon by LOR in its closing submissions in the proceedings below. The submission made by Mr Haley's Counsel is correct. LOR's closing submissions in the proceedings below relied upon the Witness Accounts in support of various aspects of its case. More critically, there was no challenge made in the appeal to the primary judge's admission into evidence of the Witness Accounts, or the primary judge's reliance upon those Accounts. In those circumstances, I reject the contention advanced by Senior Counsel for LOR that no weight should be given to the Witness Accounts. It is contrary to the way LOR conducted its case below, and it is contrary to the fact that LOR did not challenge the primary judge's reliance upon the Witness Accounts. 504 I have undertaken a detailed review of the evidence and submissions made by the parties, and I am not satisfied that the primary judge erred in ultimately finding that LOR had not established that Mr Haley engaged in misconduct warranting summary termination by reason of his conduct on the night in question. 505 It is necessary for me to set out the relevant aspects of the evidence. But again, the primary judge has set this out in detail at PJ [215]-[217]. 506 First, as I have already mentioned, there was no evidence before the primary judge as to the terms upon which the Pambula Property was occupied. Accordingly, there was no evidence as to what, if any, rights the Pointons had as the owners of the property to enter the Pambula Property or demand that that all the occupants, including the temporary residents, leave immediately without prior notice. However, irrespective of their legal rights to enter the Pambula Property, the fact that the Pointons did so and the manner in which they did, and the way they then behaved thereafter, was significant to the objective context within which Mr Haley's conduct was to be assessed. 507 Second, contrary to the assertion made by LOR, and also the Pointons, that there was a strict "no party policy", at least two witnesses, who were temporarily residing at the Pambula Property, gave evidence that they had been authorised by Ms Pointon to hold a BBQ and make noise. Mr Byrne made Ms Pointon aware that he would be holding a BBQ with work colleagues. Ms Pointon informed Mr Byrne that they could make "as much noise as [they] wanted" at the front of the house but not on the back balcony. Mr Adam Neely also said that Ms Pointon had said that the residents could hold a BBQ. LOR never sought to verify this fact from the Pointons. Mr Byrne's and Mr Adam Neely's accounts were uncontradicted other than assertions made by the Pointons as to the no party policy. 508 Third, before the Pointons entered the Pambula Property, they had complained about the noise being made at the Property. The evidence is that at about 12:10 am, upon being informed by his elderly mother about the noise, Mr Pointon drove to the Pambula Property and spoke to a person and told them to shut down the party. The evidence suggests that this may have been Mr Field who said that he had spoken to a man who asked for the noise to be turned off and said that he then conveyed this to Mr Byrne. Mr Pointon then continued to observe the Property, but there was no change. He then contacted Mr Byrne and told him that there was a no party policy, and that the party needed to cease immediately and this was a "first and final warning". When Mr Pointon returned home around 12:46am, Ms Pointon got up, spoke to Mr Pointon and then contacted Mr Byrne. At this point, she could still hear noise in the background, so she told Mr Byrne to stop and he apologised and said he would sort it out. At or about 1:05am, the Pointons attended the Pambula Property and could hear the party was still ongoing and that is when they decided to enter from the rear doors where they could see the LOR attendees gathered in the lounge room. 509 It is evident from these matters, and the events that followed, that Mr Pointon at least was, by this stage, understandably perturbed. I say understandably given that at least in the way Mr Pointon viewed the situation, nothing had been done to address his concerns about his elderly mother being affected by the noise and the gathering. 510 Fourth, there is no evidence that anyone other than Mr Field and Mr Byrne were notified about the Pointons' complaints, and no evidence was adduced from Mr Byrne that he had conveyed the fact of the complaints to anyone else present at the party. In his statement prepared for the purpose of his interview on 6 July 2020, Mr Byrne stated that he had spoken with Mr Pointon earlier in the evening but was "not certain that everyone in the group was aware of this". 511 Fifth, there is no evidence that prior to the Pointons entering the Pambula Property, Mr Haley knew that they were the owners. Nor was there any evidence to support the fact that Mr Haley had any knowledge of the complaints that the Pointons had made earlier in the evening. 512 Sixth, the overwhelming weight of evidence before the primary judge was that the Pointons' entry into the Pambula Property was sudden and unannounced. By this time it was 1:10am in the morning. The evidence indicates that there were various states of intoxication of those who were present. It might be inferred that these were matters known to the Pointons given later complaints made about the level of drinking at the gathering. 513 Seventh, upon entering the Pambula Property, the weight of the evidence indicated that the Pointons walked aggressively towards Mr Adam Neely. Mr Haley claimed that upon entering, Mr Pointon barged past him, knocking him to the side. During the course of the investigation, Mr Haley alleged that this was an assault, but later recharacterised it as being a push or nudge. There were other accounts that supported Mr Haley's evidence. Mr Shaun Boyle's account said that he was seated on a sofa and when he looked up, he saw Mr Haley being "pushed to the side" by a man he did not recognise and later described this as "they [the Pointons] barged through [Mr Haley]" to get the remote off Mr Adam Neely. There was evidence that at this point Mr Haley and Mr Adam Neely were using TV remotes as microphones to perform karaoke. Mr Byrne's account was that when the Pointons entered the Pambula Property unannounced, they "forcibly removed the TV remotes from two people participating in the Karaoke", while Mr Grierson stated that "[t]hey bowled in [and] snatched the remote control off someone". 514 For their part, the Pointons did not deny that they had walked into the house and headed towards the person who was using the remote control as a microphone to perform karaoke. The Pointons' accounts sought to identify the LOR employees as the aggressors and as behaving in a threatening way. However, this was denied by all of the Witness Accounts. This was LOR's problem to contend with in the proceedings below. It failed to address how the Court on appeal was to resolve these factual controversies in respect of which the primary judge had made unchallenged findings. 515 Eighth, at or about this time, the Pointons were telling all the occupants to leave. Mr Pointon was described variously as being verbally aggressive, demanding that all the occupants "fucking get out" and, on some accounts, was continuing to repeat these demands to those present. Various accounts also indicated that at or about this time Ms Pointon was also telling those present that she had called or would be contacting the police. 516 Ninth, there was evidence (which LOR did not dispute) that during the period that the Pointons were telling those present to get out, and, in particular, Mr Pointon was telling them to "fucking get out", Mr Haley said "you can't do that" to which Mr Pointon said "I can do what I fucking want", and to which Mr Haley said "You can fucking leave". It was said that at or about this time there was commotion and profanities being used by those present. This evidence was consistent with Mr Haley's evidence that there was a commotion and those present were telling the Pointons that they had no right to be there. Mr Haley accepted that: I contributed to the commotion by saying things like you are out of order and you need to leave. I felt it was necessary to speak up for myself and others in the group, who I believed were in danger. I was still a bit startled and in disbelief at what was happening. 517 For their part, the Pointons appear to have accepted that they told those present to leave, but then a group of four or five persons gathered around them and they felt threatened. 518 Tenth, at one point, Mr Pointon grabbed or shoved Mr Neely and this led to further commotion, though the accounts of this incident differed. Some accounts indicated that Mr Neely had been grabbed "aggressively". Mr Adam Neely said that Mr Pointon became "very heated" towards him and grabbed him by the shirt. This account was corroborated by Mr Grierson and Mr Shane Neely. Mr Pointon said he "shoved" a "bald-headed guy" who was "right in my face" and "very aggressive" and that it was "self-defence", and Ms Pointon said that Mr Pointon had pushed someone "because he was surrounded by 4-5 staff". Mr Byrne recalled that Mr Pointon had grabbed Mr Adam Neely by the arm. 519 Ms Pointon also asserted she had been struck, or accidentally struck at the point in time that she sought to wrest away the remote control from a karaoke participant, most likely Mr Adam Neely. That assertion was not supported by on the Witness Accounts. 520 On balance, at least on my review of the evidence, it appears that all of the occupants of the Pambula Property were in a state of surprise and shock as to the events that were unfolding. There were profanities being used by all present, and encroachment on personal space. 521 Eleventh, thereafter, some of the LOR employees and the Pointons went out to the back area of the Pambula Property to continue the discussion. On the Third Version of the Pointon Complaint, Ms Pointon "left [Mr Pointon] in there" and went out into the backyard to call the police because there was limited phone reception inside, then "[t]hey [LOR employees] followed us out the back of the house". On the Fourth Version of the Pointon Complaint, the Pointons had to "push at arm's length to get out of [the] space" and then "walked outside all surround[ed] by the guys". Based on the other witness accounts, it appears that Mr Byrne and Mr Grierson accompanied the Pointons outside to the back area to talk to them, telling everyone else to stay inside. 522 Twelfth, there were further discussions and a commotion outside. While the Pointons alleged that Mr Haley had to be "restrained", the evidence contained in the Witness Accounts was that Mr Haley largely remained inside, about 15-20 yards away. He attempted to go outside but was shepherded back in. For example, Mr Grierson indicated that "Tom was sort of further back than most people". 523 Thirteenth, based on the Audio Recording, and before the Offensive Words were uttered, it is clear that Mr Grierson and others were apologising to the Pointons and politely requesting that they leave. Indeed, Mr Grierson had told the Pointons that the Pambula Property Residents would be gone in the morning. The following exchange occurred between Mr Byrne and Ms Pointon: AB: … and I accept that and I apologise and we will be gone in the morning if we have to, that's fine. [Ms Pointon]: No they need to go now. I'm not having it. You can all get out now. [Ms Pointon]: The police are coming now. [Ms Pointon]: This is not ok AB: The thing is, there is nowhere else for us to go. [Ms Pointon]: Well that's your problem. 524 This exchange makes it clear that the Pointons were insistent, to the point of intransigence, that all the occupants of the Pambula Property, including the Pambula Property Residents, had to leave and do so immediately. Even when it was pointed out that the occupants had nowhere else to go, it was met with the riposte that this was not the Pointons' problem. 525 Fourteenth, it was after these steps were being taken and the Pointons having remained in the back area of the Property, that Mr Haley uttered "Go home you fucking silly old cunt" and a short time later uttered the words "Go home old man, old lady, go home, go home, go home, go home". 526 Fifteenth, the evidence also included a Video Recording, which Ms Pointon indicated in an email to LOR had commenced after the Audio Recording ended. This records the Pointons insisting that all the occupants leave. A representative of LOR can be heard saying "I do genuinely from the bottom of my heart apologise. I'm just thinking how to settle this now…" and "… we don't, we have no other place to go". 527 Ms Pointon responded to these entreaties by stating "I'd get something warm, because you're gonna be sleeping in your cars by this look of it" and "No. I'm not having. I'm not having people like that stay in this house. This is a luxury home". 528 My strong impression from the evidence was that there was no amount of pleading, apologising or seeking to be conciliatory that was going to persuade the Pointons to stop demanding that all present leave immediately, including the Pambula Property Residents. 529 Sixteenth, in the event, the police arrived and the Pointons did ultimately leave, not the Pambula Property Residents. 530 Seventeenth, on the next day and the days that followed, the complaints made by the Pointons about Mr Haley were that he had: (a) been aggressive and threatening; (b) said he would "f-up the old man and old lady"; (c) chanted "go home old man, old lady"; and (d) needed to be restrained. 531 As I have noted a number of times, the Pointons did not allege that Mr Haley had uttered the Offensive Words. Indeed, no other witness said that they had heard the Offensive Words. The question was not put to any of the witnesses, including the Pointons. Nor did the Pointons at any time say or allege that they had played the Audio Recording and heard the Offensive Words. 532 Critically, as noted above, LOR elected to call no direct evidence to contradict Mr Haley's evidence where it conflicted with LOR's assertions as to the facts of the Incident. 533 The facts are to be considered objectively. The subjective understandings and perceptions of the various participants in the commotion contributed to the way they behaved. It is undoubtedly the case that the conduct of all persons involved in the Incident was exacerbated by the time of evening, the consumption of alcohol (by those attending the BBQ) and their respective perspectives about the Pointons' unannounced entry into the Pambula Property. On the Pointons' part, it is entirely understandable that, having received a complaint from Mr Pointon's mother and raised complaints earlier in the evening, they expected the party would cease, or at least that the noise would abate. This did not occur. They were clearly frustrated. On the part of the LOR employees that were present and, in particular those who had no knowledge of the earlier complaints, including Mr Haley, the entry of the Pointons was indeed akin to being set upon by unannounced intruders. 534 Despite these rival perspectives, it is nevertheless the case that the question of misconduct called for an objective determination. That objective determination is not, however, acontextual. It is fact-dependent and fact-intensive: Willis at [88]-[89] and Eldridge at [289]. The evidence which I have reviewed comfortably established that it was the Pointons who instigated the Incident by their unannounced entry into the Pambula Property and their immediate provocative act in walking to Mr Adam Neely and taking the TV remote out of his hand. The subsequent conduct on their part to demand that everyone leave, including Mr Pointon yelling to everyone to "fucking get out" created an atmosphere that was confrontational. Mr Pointon's subsequent conduct in grabbing Mr Adam Neeley added to that atmosphere. 535 There was also evidence indicating that Mr Haley did at least initially seek to diffuse the situation. On the evidence, his initial response was to tell the Pointons that they could not demand the occupants to leave. He was the most senior employee present and at that point in time he did not know that the Pointons were the owners or had complained earlier in the evening. In my view, this response was consistent with the role of a senior manager in seeking to attend to the demands being made at that time from Mr Pointon and also seeking to look out for the interests of his subordinates in the extraordinary circumstances that were then playing out. Mr Haley's attempt was met with a response from Mr Pointon that he could do "whatever the fuck [he] want[ed]". 536 Thereafter, Mr Grierson and Mr Byrne took on the role of seeking to placate the Pointons, whilst Mr Haley largely remained inside. From this point onwards, Mr Haley's conduct may be characterised as having been less than ideal and imprudent. Mr Haley attempted to go outside when others were already seeking to placate the Pointons, he uttered the words "Go home you fucking silly old cunt", and then said to the Pointons "go home old man, old lady, go home, go home, go home, go home". By this time, on Mr Haley's own account, he realised the Pointons were likely the owners of the Pambula Property. Although I am not satisfied that LOR established that he said the words "Go home you fucking silly old cunt" to or directed them towards the Pointons, those words were offensive and vulgar, and there was at least a risk that someone would hear those words being uttered. It was imprudent for Mr Haley to have done so. It was also imprudent for him to have told the Pointons to "go home old man and old lady". All of this conduct had to be considered in light of the fact that the conduct was occurring in a private home, in the very early hours of the morning, and after a sequence of events that led to that point in time. Although the gathering was one of work colleagues and at premises ultimately paid for by LOR, the context is nevertheless important. In the Reflection Email, Mr Haley did ultimately accept that he had used offensive language in the vicinity of members of the public and apologised for that. 537 Whilst Mr Haley's conduct was not ideal, and it was imprudent for him to be using profanities, at least in the vicinity of subordinate employees and members of the public (albeit in a private home well after midnight), it had to be considered by reference to all of the objective contextual facts that I have set out above. This is what the primary judge did. 538 In Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 74, the House of Lords stated: Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of December 21, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, CJ, was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. (Emphasis added). 539 The passage has been cited with approval in this Court: see Pryde v Coles Myer Limited t/as K-Mart Auto (1990) 33 IR 469 (Keely J). As dated as it is, the underlying principle stated by the House of Lords remains relevant. It is in line with Gillard J's observation in Rankin at [250], cited with approval in Willis at [92], that "[i]solated conduct usually would not suffice" to establish serious misconduct warranting summary termination and that each case must be considered in the light of its particular circumstances. The circumstances include Mr Haley's senior position with LOR and that his conduct occurred in the presence of subordinate employees. However, taking all of the context into account, although Mr Haley's conduct may be regarded as not being ideal or prudent, it was, to that extent, a lapse in judgment. More relevantly, I do not consider that the primary judge erred in concluding that LOR had not established that it amounted to misconduct warranting summary termination. 540 For all of the above reasons, I reject the First Serious Misconduct Contention. G.2.2 The Second Serious Misconduct Contention 541 LOR next contended that the primary judge erred by finding that Mr Haley had not been dishonest during the course of the investigation, and submitted that I should find to the contrary. This was the "second ground" of misconduct that LOR advanced in the proceedings below. The primary judge dealt with this "second ground" in detail at PJ [545]-[580]. Before turning to address LOR's contentions on appeal, it is necessary to say something about the way LOR put its case below and on appeal. 542 As set out at [31] above, LOR's pleaded case was that Mr Haley had made false statements in: (a) the 8 July Haley Statement; (b) during his interview on 8 July 2020; and (c) in the Response to the 9 July Letter. However, LOR's pleaded case went further than asserting that Mr Haley had made false statements; it expressly propounded that Mr Haley knew that the statements were false at the time he made them. Thus, the case that LOR advanced required it to establish not only that the impugned statements made by Mr Haley were false, but that he had a subjective belief as to their falsity in that he knew them to be false at the time they were made. On appeal, Senior Counsel for LOR accepted that its case was that Mr Haley had engaged in conduct that was "deliberately dishonest" and involved "deliberate" lies. 543 In its submissions on appeal, LOR did little more than point to the findings the primary judge made as to why Mr Haley had not made knowingly false statements during the course of the investigation and invited me to make the contrary finding. Little was said to demonstrate error on the part of the primary judge. I reject LOR's contentions, and it falls to examine the critical findings made by the primary judge to explain why that is so. 544 The first allegation made by LOR that Mr Haley had made a knowingly false statement was that Mr Haley did not disclose in the 8 July Haley Statement and in his interview on the same day that he had said the Offensive Words. LOR contended that Mr Haley's failure to recall or admit having said the Offensive Words was inconsistent with the detailed recall he had of other events that occurred during the Incident as set out in the 8 July Haley Statement and in his evidence before the primary judge. The primary judge rejected this contention at PJ [546]-[550]. In doing so, the primary judge accepted Mr Haley's evidence that he did not have a recollection of having uttered the Offensive Words: PJ [547]. Further, the primary judge reasoned that LOR had not established the "evidential foundation" for its assertion being that he knew or believed that he said the Offensive Words "to" the Pointons: PJ [550]. 545 Having reviewed the evidence, the primary judge did not err. For the reasons set out above at Part F.5, there was no inconsistency in Mr Haley having a recall (including a detailed recall) of some of the events that occurred during the Incident, and not others. Any inconsistency in this respect may have raised a question of credit, but the primary judge declined to make an adverse credit finding. It is not a finding that I am persuaded ought to be disturbed. It follows that LOR did not establish the evidential foundation for its contention that Mr Haley had made a knowingly false statement, and that the primary judge had erred in not so finding. 546 The second allegation made by LOR that Mr Haley had made a knowingly false statement was his statement that he "completely refute[d] the allegations of aggressive, intimidating deplorable and inconsiderate behaviour", and that he "was not intimidating and [his] behaviour was neither deplorable or [sic] aggressive". The primary judge rejected this allegation at PJ [551]. It was obvious that Mr Haley rejected the allegations that were made against him. The allegations required a characterisation of Mr Haley's conduct as being aggressive, intimidating, deplorable and inconsiderate. In rejecting those allegations, Mr Haley was denying the characterisation of his conduct as meeting those descriptors. That was his belief. LOR took me to no evidence and did not articulate the basis upon which it was alleged that Mr Haley did not hold this belief or knowingly made a false statement by rejecting the allegations made against him on the basis of that belief. The primary judge did not err in rejecting LOR's second allegation. 547 The third allegation made by LOR that Mr Haley had made a knowingly false statement was that by asserting that Mr Pointon represented a risk and danger to the safety and welfare of the persons present at the Pambula Property. The primary judge rejected this allegation at PJ [552]-[555]. As the primary judge pointed out at PJ [554](c), LOR's submissions ignored the substantial evidence other employees had given about Mr Pointon's verbally and physically aggressive behaviour. To the extent that LOR's allegation related to Mr Haley's statement that Mr Pointon had physically attacked him, the primary judge reasoned at PJ [553]-[554](a) that, although Mr Haley had initially complained that Mr Pointon had subjected him to physical harm and had later during the Show Cause Meeting indicated that he did not view the contact as a serious thing, this did not establish that Mr Haley did not have a "genuine belief" at the earlier point in time that he had been pushed in the back and that he considered it at that time to be a serious matter. Again, I discern no error in that finding. Having reviewed the evidence, it is apparent to me that, having made allegations as against Mr Pointon earlier in time, Mr Haley later acknowledged that that initial response had been emotive and that "emotion got the better of me". This did not establish that he did not have a genuine belief at the earlier point in time. Again, the primary judge did not err in rejecting LOR's contentions. 548 The fourth allegation made by LOR that Mr Haley had made a knowingly false statement was that Mr Haley was dishonest by responding to a question asked by Mr Curnow-Rose as to whether he addressed the Pointons at any time by saying "That's covered in my statement". LOR contended that this was inconsistent with Mr Haley having uttered the Offensive Words, which was not "covered" in the 8 July Haley Statement. The primary judge addressed this allegation at PJ [556]-[559]. The primary judge essentially reasoned that the question asked by Mr Curnow-Rose only directed Mr Haley to respond to whether he addressed the Pointons when there was a commotion inside the Pambula Property and not outside, and otherwise rejected LOR's contention on the basis that he had already found that Mr Haley had no independent recollection of uttering the Offensive Words at the time he made the 8 July Haley Statement. Again, I discern no error in the conclusion reached by the primary judge. As Mr Haley had no independent recollection of uttering the Offensive Words and the primary judge made a finding to that effect, LOR did not establish that Mr Haley had made a knowingly false statement by referring Mr Curnow-Rose to the matters that were covered in the 8 July Haley Statement as to whether he addressed the Pointons. 549 The fifth allegation made by LOR that Mr Haley had made a knowingly false statement was that in the Response to the 9 July Letter Mr Haley did not admit that it was his voice in the Audio Recording. The primary judge essentially reasoned at PJ [562] that LOR did not establish that Mr Haley was obliged to expressly admit that it was his voice and otherwise that he consciously did not make that admission such that its case as to dishonesty was not established. 550 In the 9 July Letter, LOR reproduced the following parts of the 8 July Haley Statement: From my part, I contributed to the commotion by saying things like you are out of order and you need to leave. I completely refute the allegations of aggressive, intimidating, deplorable and inconsiderate behaviour. 551 The 9 July Letter then stated: The recording provided to you appears to contradict your version of events both in terms of what you said to the Complainants and how those words might be characterised. For example, at 1 minute and 24 seconds into the recording, you can be heard to say the following: Go home you fucking silly old cunt … (inaudible) .. . go home, old man, old lady … You then repeated on a number of occasions the phrase "go home ", directed at the Complainants. 552 In his Response to the 9 July Letter, Mr Haley stated as follows: The individual noted in the illegal recording at 1 minute 24 seconds is neither aggressive, intimidating nor threatening. The tone of the voice is controlled and the volume of the voice, comparable with the volume of other voices in the recording, indicates that the individual is stood some distance from where the listening device was located. This reference does not support the allegations made. I have no change to make to my previous statement. (Emphasis added). 553 LOR contended that by not admitting that he was the "individual" who had said the words "Go home you fucking silly old cunt", Mr Haley had knowingly made a false statement. Whilst I accept that by referring to the voice heard as being that of an "individual" Mr Haley was not being fulsome in his response, I do not accept that LOR established that by doing so Mr Haley knowingly made a false statement. Again, I am not satisfied that the primary judge erred. 554 The sixth allegation made by LOR that Mr Haley had made a knowingly false statement was that in the 9 July Response Letter Mr Haley variously stated that he had "no change to make" to his earlier statement. The primary judge rejected these contentions at PJ [564]-[565] by finding that, in essence, it was a repetition of the fifth allegation that LOR had made. LOR did not articulate how or in what way the primary judge erred in this respect. Again, I find no error. 555 The final allegations made by LOR that Mr Haley had made knowingly false statements related to the contents of the 8 July Haley Statement wherein Mr Haley had asserted the Pointons had made "false and malicious allegations", that he had been subjected to a physical assault by Mr Pointon, and that the Pointons were seeking to avoid criminal charges. The primary judge rejected these contentions at PJ [566]-[580]. The primary judge essentially reasoned that: (a) Mr Haley's belief as to the Pointons having made false and malicious allegations was justified because the complaints that they had actually made did not conform with the allegations being put to Mr Haley, and were not made out: PJ [556]-[567]; (b) Mr Haley believed at the time that he made the 8 July Haley Statement that he had been subjected to a physical attack by being pushed in the back, and his later comments at the Show Cause Meeting were not inconsistent with him having held that belief at the earlier point in time: PJ [570]-[573]; and (c) Mr Haley believed at the time of the 8 July Haley Statement that the Pointons were seeking to avoid criminal charges and this was not false as the primary judge considered it to be consistent with what occurred, and that the statement was not rendered false by Mr Haley's later statements that he did not consider that Mr Pointon should be charged for having come into contact with him: PJ [573]-[576]. 556 As to the first matter, it is to be recalled that the Pointons had alleged that Mr Haley had, amongst other things, said he wanted to "f*ck up the old man and his Mrs" and that he had to be restrained because he was saying that he "was going to f-up the old man and lady". This was part of the context within which it was alleged that Mr Haley had engaged in aggressive, intimidating, deplorable and inconsiderate behaviour. It is also to be recalled that Mr Haley was given very few particulars of the complaint. All the evidence before the primary judge (other than from the Pointons) was consistent with the Pointons being the aggressors. In those circumstances, Mr Haley's assertion that the Pointons had made false and malicious allegations had to be viewed in that context, but LOR did not establish that Mr Haley had thereby made a knowingly false statement. 557 As to the second and third matters, it is correct that Mr Haley initially claimed that he had been subjected to a physical attack by Mr Pointon by being pushed in the back and that they were seeking to avoid criminal charges. It is also true that by the Show Cause Meeting Mr Haley had sought to qualify his initial characterisation of Mr Pointon's conduct. As I have pointed out above, there were other witnesses who gave evidence consistent with the fact that Mr Pointon had come into physical contact with Mr Haley, including one other witness who had said that Mr Pointon had pushed past Mr Haley. That contact may well have been unintentional and not as objectively serious as Mr Haley initially suggested it to have been. However, again, LOR did not thereby establish that Mr Haley had made a knowingly false statement. 558 My assessment of Mr Haley's response, as he later acknowledged, is that it was highly emotive and ill-advised. He was seeking to answer largely unparticularised allegations made against him by alleging that the Pointons had engaged in criminal behaviour by the way they had conducted themselves. It was entirely unnecessary for him to do so. However, LOR did not run its case on the basis that Mr Haley had been intemperate or made ill-founded allegations. Rather, it alleged that Mr Haley had made knowingly false statements. It did not establish this case and the primary judge did not err in rejecting it. 559 For the above reasons, LOR has not established that the primary judge erred in rejecting its various claims as to Mr Haley's dishonest conduct. Accordingly, I reject the Second Serious Misconduct Contention. G.2.3 The Third Serious Misconduct Contention 560 LOR contended that the primary judge misdirected himself in determining whether, for the purpose of cl 2(b) of Section 4 of the Employment Contract, Mr Haley had engaged in conduct that caused an imminent and serious risk of reputational harm to LOR. Specifically, LOR contended that the primary judge directed himself to whether LOR's reputation was in fact harmed, as opposed to the risk of it being harmed. 561 Clause 2(b) of Section 4 of the Employment Contract provided that LOR could terminate Mr Haley's employment if he: Engage[d] in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company… 562 This text is similar to that contained in reg 1.07(1)(2)(b)(ii) of the Fair Work Regulations 2009 (Cth) (FW Regulations). There has been no direct judicial consideration of these words, though industrial tribunals have been called upon to apply this aspect of the FW Regulations from time to time. In respect of similar text relating to a "serious and imminent risk to air safety" as contained in the Civil Aviation Act 1988 (Cth), Madgwick J in Civil Aviation Safety Authority v Boatman [2006] FCA 460 reasoned at [31] that: The applicant correctly points out that the fact that a risk does not materialize into an incident does not deny the existence of the risk, nor its seriousness. The applicant says that it is the risk of exposure to the potential for harm that must be serious and imminent, not its materialisation. So it is the exposure that has to be serious and imminent, not the materialisation of the risk. 563 Madgwick J further reasoned at [44] that: The phrase 'a serious and imminent risk to air safety' is a difficult one to comprehend fully in relation to all possible circumstances in which it might fall for consideration. It is, to a degree, a composite phrase: it is not appropriate to see 'serious' as only referring to the risk of harm occurring. In the context, 'serious' means something like 'really significant'. However, if a licence holder had done something indicative of very poor regard for safety but the potential consequences were only very slight then it might be unfair to call that a serious and imminent risk to air safety. 564 Although decided under a different statutory scheme, Madgwick J's reasons direct attention to the necessity to give content to the totality of the words "imminent and serious risk" as a composite phrase, and that "seriousness" may attach to either or both the potential consequences of the conduct or the likelihood of the risk materialising, depending on the context. 565 Clause 2(b) of the Termination Clause required LOR to establish that Mr Haley had engaged in conduct and that his conduct was causative of an "imminent and serious risk to… the reputation… [of LOR]". LOR is correct in its contention that its right to terminate Mr Haley's employment under this clause arose if it established a "risk" to its reputation, as opposed to establishing that the reputational harm had in fact materialised. 566 Further, LOR had to establish that the risk to reputation was "imminent and serious". This involved a question of fact and degree. Not every risk to reputation will be imminent or serious, and it may not be both imminent and serious. It goes without saying that a risk to reputation may be slight, but the consequences may be extreme, and vice versa, a risk to reputation may be high but the consequences may be trivial or insignificant. The clause in question required it to be established that the risk here was both imminent and serious, which required it to be established that there were both immediate and significant consequences that could flow from that risk. Critically, the clause required a causal connection to be established between Mr Haley's conduct and the creation or existence of the risk. LOR paid little attention to each element of the clause. 567 Further, whether Mr Haley's conduct caused an imminent and serious risk to LOR's reputation called for an objective determination, as opposed to any subjective understanding held by LOR. As Jagot and Rangiah JJ stated in National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159; (2021) 392 ALR 252 at [223]: Absent some provision to the contrary, it has always been for a court to determine, objectively on all information available to it (not merely information that was available to the employer), whether a termination of employment is lawful or not. This accords with basic and long-standing principles. For example, it is axiomatic that the issue of the lawfulness of a termination may be established by an employer by reference to sufficient misconduct of an employee even if the employer was unaware of that misconduct at the time of termination… This is because the issue is the lawfulness of the termination which is to be objectively determined and not the reasonableness of the employer's state of satisfaction about alleged misconduct. The same principle would ordinarily apply to the lawfulness of any disciplinary action. 568 This is relevant here because an aspect of LOR's contentions on appeal focussed upon Mr Chatwin's and LOR's assessment or belief as to the existence of the risk, as opposed to the objective facts and the elements of the clause in question. The primary judge pointed out that the entirety of the evidence upon which LOR relied in its closing submissions to establish the risk of imminent and serious harm to its reputation was given by Mr Chatwin in cross-examination as follows: So we're clearly in a very sensitive area, the bushfires. A lot of people suffered loss and, like, their homes and or had family members that suffered homes in the local areas and things like that, so we were in a really high-pressure area. One of Laing O'Rourke's biggest major fears in just tendering for this contract was the adverse media effect if we put one step wrong; that was our biggest, biggest fear on this job. It wasn't can we finish it in six months? It was if we do one step wrong, the media will crucify us. They will absolutely crucify us. We've seen it before with previous bushfire and flood-recovery efforts. So when you take on a contract like this you have — every single member of your staff has to be really, really careful and a high standard of duty of care of the communities that you're working in and have to be very, very sensitive to the community members. So having a party, swearing at people, making allegations, changing those allegations, there's a high chance that [Mr and Ms P] will go and tell their friends and people . It will become public knowledge what happened. Someone will have a link to a story. Someone will make it into, you know, a big issue in the press and then suddenly all those fears that we have come true and materialise because of one crazy — you know, one crazy night and event. (Emphasis and additional emphasis added). 569 The essence of Mr Chatwin's evidence was that given the sensitivities involved at the time in the South Coast region, LOR's staff had to be especially careful of adverse community reactions and media reporting that would arise if LOR's staff behaved inappropriately. It was Mr Chatwin's view that this would arise in circumstances where staff had a party, swore at members of the public, made allegations against them and changed those allegations. It was his view that there was a risk that such conduct would become public as affected members of the community, such as the Pointons, would tell others and the matter could become the subject of adverse media comment. 570 The primary judge did not reject Mr Chatwin's evidence, but rejected LOR's contentions relying upon this evidence and its other contentions at PJ [540]-[544]. The primary judge reasoned that Mr Chatwin's evidence established "little more than a belief in the existence of the possibility of a risk to [LOR]'s reputation" and did not establish, objectively, that there was "an imminent risk" or that it was "a serious risk to [LOR]'s reputation": [542](a). The primary judge also reasoned that Mr Chatwin's concerns were not limited to Mr Haley's conduct, and that his concerns extended to the conduct of others who were present and swearing: PJ [542](b). The primary judge then reasoned that as the Pointons did not allege they heard the Offensive Words and had otherwise said they wanted the matter "to be over", there was little, if any risk, that they would tell their friends or publicise the Incident: PJ [542](d)-(e). 571 I do not accept LOR's contentions that the primary judge misdirected himself in construing and applying cl 2(b) of Section 4 of the Employment Contract by considering only whether the risk of harm to reputation in fact materialised, as opposed to whether the risk existed. This is an inexact characterisation of the primary judge's findings. As noted above, the primary judge's essential conclusions at PJ [542](a)-(b) were to the effect that LOR had not established the existence of an imminent and serious risk to reputation. His Honour considered that LOR established little more than a belief to that effect. More critically, the primary judge was not satisfied that LOR had established the specific conduct on Mr Haley's part that was causative of the imminent and serious risk. 572 In my view, the primary judge did not err in this respect. As set out above, the clause in question required LOR to establish something more than that Mr Haley's conduct would cause any risk to LOR's reputation. It had to establish that Mr Haley's conduct was causative of a serious and imminent risk to LOR's reputation. 573 Mr Chatwin's evidence was that the conduct which gave rise to his belief as to the existence of the relevant risk was that: (a) staff had a party; (b) they swore at members of the public; and (c) made allegations against them and changed those allegations. In its closing submissions below, in addition to Mr Chatwin's evidence, LOR contended that the conduct that caused the imminent and serious risk to its reputation was the same conduct that it relied upon to generally support its case on misconduct against Mr Haley as set out at [474] above. In other words, again, its case hinged upon it being established that Mr Haley had become intoxicated, had said the Offensive Words to and directed them towards the Pointons, and that this conduct was unbefitting of a person in his position. However, there were a number of problems with Mr Chatwin's evidence and LOR's legal contentions. Most critically, LOR did not isolate the conduct of Mr Haley, as opposed to other members of staff, that was causative of that risk. Mr Haley had not organised the gathering. It had been arranged by the Pambula Property Residents, who, on the evidence before the primary judge, had sought and obtained Ms Pointon's approval before holding the BBQ. It followed that the holding of the gathering itself was not conduct on the part of Mr Haley. 574 As to the issue of swearing at members of the public, the evidence did not establish that Mr Haley had said the words "go home you fucking silly old cunt" at or to the Pointons. The evidence did establish that Mr Haley had said the words "Go home old man, old lady. Go home, go home, go home, go home" at or to the Pointons, but LOR did not contend that these words or Mr Haley's conduct in this respect gave rise to misconduct. For the reasons I have already addressed, I do not accept that LOR established the essential integers of its case against Mr Haley as to his misconduct on the night in question. Nor was Mr Haley the only person who had become engaged in exchanges with the Pointons. The evidence indicated that it was Mr Pointon who initiated the uttering of swear words, and others followed thereafter. None of LOR's contentions engaged with the evaluation of the Pointons' conduct (on the facts established before the primary judge). 575 It is not clear what LOR and Mr Chatwin intended to convey by referring to the making of allegations, and then changing them. To the extent that this was in relation to Mr Haley's allegation that he had been attacked by Mr Pointon, it was not established that these allegations were conveyed to the Pointons or anyone else outside LOR. Therefore, the basis of a risk to reputation was not established, let alone that it was an imminent and serious one. 576 LOR's case reduced to the proposition that by being the most senior manager present, doing nothing to de-escalate the Incident and instead saying the Offensive Words, Mr Haley had engaged in conduct that caused an imminent and serious risk to LOR's reputation because it created a risk that the Pointons would in one way or another publicise the Incident to their friends or more broadly. It may be accepted for the purpose of the argument that, on an objective assessment of all of the evidence, there was a risk that LOR's reputation would diminish in the eyes of the Pointons and there was a further risk to LOR's reputation arising from the fact that the Pointons might have told others about what had happened and passed on the Audio Recording. However, LOR did not grapple with whether the risk of such a diminution in reputation was as a result of Mr Haley's conduct as established on the evidence or whether it was because of the Pointons' perceptions about Mr Haley's conduct. For example, by their complaints, the Pointons had alleged, amongst other things that, Mr Haley had said "he was going to f-up the old man and lady". However, LOR itself did not urge this finding upon the primary judge. And the findings that the primary judge made as to Mr Haley's conduct were less serious than those alleged by the Pointons, and also less serious than those propounded by LOR. LOR did not address these issues. 577 Further, even if LOR's standing and reputation had diminished in the eyes of the Pointons, and there was a risk of its further diminution by reason of what the Pointons might convey about the Incident to others, LOR had to establish that risk by reference to Mr Haley's conduct and that it was an "imminent and serious" risk to LOR's reputation. LOR did not engage with whether an objective assessment as to the existence of such a risk had to also account for the Pointons' contribution to the Incident by their own behaviour. None of this was developed or even addressed by LOR. 578 Also, critically, LOR's contentions relating to cl 2(b) of the Termination Clause proceeded on its jaundiced view of the facts of the Incident, which were not accepted by the primary judge. As I have noted, the primary judge rejected the notion that what LOR submitted occurred "went anywhere near to fairly representing the evidence about what occurred during the Incident, or Mr Haley's conduct in the course of that Incident": PJ [209]. LOR did not challenge these factual findings, other than in specified respects. Like other matters to which I have referred, LOR did not address the elements of cl 2(b) by reference to those facts as found. 579 LOR's contentions in the proceedings below and on appeal simply assumed a conclusion. The primary judge was correct to find that LOR had not established its case. 580 Both in the proceedings below and on appeal, LOR relied upon the obiter remarks of Ward JA (with which remarks Leeming JA agreed) in Willis at [133]-[135] as follows: [133] I agree with Macfarlan JA that it amounted to serious misconduct for Mr Mitchell-Innes to have attended the conference in that state of intoxication and to have behaved as inappropriately as Mr Mitchell-Innes did at the conference. Mr Mitchell-Innes' attempt in the witness box to downplay the seriousness of his conduct (to some examples of which Macfarlan JA has referred), which is illustrated by Mr Mitchell-Innes' dismissive response at T112.26 ("I was taking it [the conference] as seriously as I thought necessary"), cannot be accepted. I also agree that it was serious misconduct for Mr Mitchell-Innes to have behaved as he did in the public area of the RACV Hotel while staying there in connection with the work conference. [134] Where I have had some misgiving is as to the conclusion that his conduct at the conference, though serious misconduct, was not serious misconduct "in serious circumstances". That there were no clients present and that his role at the conference was a limited one must be balanced against the fact that not only were there in attendance a number of senior staff for whom his conduct should have set an example but also that the session he attended was being facilitated by an external consultant from the United Kingdom. Mr Mitchell-Innes' conduct clearly had the potential to damage the reputation of Willis not only in the eyes of the senior staff, many of whom reported to him, but also in the eyes of the external facilitator. The fact that it may not have caused any or any lasting damage to Willis' reputation does not gainsay that it had the potential to cause such damage. [135] Nevertheless, as Macfarlan JA has noted, there was no evidence that Willis' reputation was diminished in the eyes of junior staff. Nor was there any evidence of the reaction of the facilitator to Mr Mitchell-Innes' conduct. That, and the fact that the response of Mr Mitchell-Innes' colleagues was to procure his relatively swift departure from the conference, has led me ultimately to agree with Macfarlan JA that this was not serious misconduct "in serious circumstances". However, I would not want it to be thought that simply because serious misconduct of this kind occurred in an internal staff training seminar in the absence of clients it could not in other circumstances have amounted to conduct sufficient to warrant summary dismissal under the applicable provisions of Mr Mitchell-Innes' contract of employment. (Emphasis added). 581 LOR contended that Mr Haley's conduct was more serious than that of Mr Mitchell-Innes in Willis, in that there was evidence here that Mr Haley had engaged in conduct that risked its reputation in the presence of subordinate employees and two members of the public. Putting to one side that no one case of serious misconduct will ever have equivalence to another, the facts in Willis were markedly different. Mr Mitchell-Innes had attended a work-related conference in a state of intoxication and then behaved inappropriately. Those facts are different to the circumstances here. First, Mr Haley attended a gathering of workers organised at a private home. Second, the evidence was that such gatherings had been organised with the knowledge or authorisation of LOR in the past. Third, the evidence was that the gathering had been approved by Ms Pointon. Fourth, the evidence was that the Pointons had entered the property unannounced, with Mr Haley having no knowledge as to the fact that the Pointons were the owners or had complained earlier about the noise from the gathering. Fifth, there then followed all of the events and circumstances I have set out above. I do not accept that the conduct in this case is more serious than in Willis. 582 There is a further matter. As noted above, LOR accepted in the appeal that the common law principles applied to the construction of cl 2 of Section 4 of the Employment Contract. Even though cl 2(b) likely extended the category of misconduct in respect of which an employer could terminate at common law, LOR did not make any submissions on the appeal about this matter and did not press it as a ground of appeal. Nor did LOR challenge the primary judge's conclusion that the common law informed the operation and application of the clause. Senior Counsel for LOR accepted that Mr Haley's conduct would meet the "common law standard". As a result of the way LOR conducted the appeal, it was necessary for LOR to establish that Mr Haley's conduct in causing an imminent and serious risk to reputation was of sufficient gravity to warrant summary termination. LOR did not engage with these issues in the appeal. In my view, the primary judge correctly found that LOR had not established its case in this regard. 583 It does appear that the primary judge at PJ [542](d)-(e) considered whether the risk of harm to reputation would materialise or had materialised by having regard to how the Pointons in fact responded to the Incident. It may be that in assessing the Pointons' actual responses, the primary judge in these subparagraphs was erroneously not focussing upon whether Mr Haley's conduct had given rise to the risk. However, another way of characterising these subparagraphs is that the primary judge was referring to the actual effect of the conduct in concluding that Mr Haley had not engaged in misconduct sufficient to warrant summary termination having regard to the facts that were before his Honour. In my view, the primary judge did not make clear that this was the process of reasoning being embarked upon. Accordingly, I consider that the primary judge did err in these subparagraphs by asking the wrong question. However, that error is of no moment. That is because even absent those findings, the primary judge's findings at PJ [542](a)-(b) supported the ultimate conclusion that LOR had not established its case. 584 I reject the Third Serious Misconduct Contention. G.2.4 Conclusion on the Summary Dismissal Ground 585 As I have rejected the appeal on each of the contentions advanced by LOR, I do not consider that LOR established before me that the primary judge erred by failing to find that Mr Haley's accumulated conduct gave rise to misconduct, let alone misconduct sufficiently serious to warrant summary dismissal. 586 It follows that I reject the Summary Dismissal Ground. H. ALLEGED ERRORS OF LAW H.1 The Adverse Action Ground 587 As noted earlier in these reasons, LOR contended by way of the Adverse Action Ground that the primary judge erred and acted contrary to authority, in deciding that by "purporting" to summarily dismiss Mr Haley from his employment, LOR took adverse action against Mr Haley in contravention of s 340(1) of the FW Act because it had failed to call Mr O'Rourke as a witness. For the reasons I have set out above, I have found that the primary judge erred in relation to Alleged Factual Error Seven and Alleged Factual Error Eight, as a result of which the questions which I have identified will need to be remitted. The resolution of those questions will determine whether Mr Haley's adverse action case was made out or not. H.2 The Section 117 Ground 588 LOR contended by its Amended Notice of Appeal that the primary judge erred in finding that it had contravened s 117(1) of the FW Act in the way the notice of termination of employment had been given to Mr Haley. 589 Section 117(1) of the FW Act provides as follows: Requirement for notice of termination or payment in lieu Notice specifying day of termination (1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). Note 1: Section 123 describes situations in which this section does not apply. Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by: (a) delivering it personally; or (b) leaving it at the employee's last known address; or (c) sending it by pre-paid post to the employee's last known address. 590 Section 123(1)(b) provides that "this Division" (being Division 11 of Part 2-2, the division in which s 117(1) is contained) "does not apply to… an employee whose employment is terminated because of serious misconduct". 591 The primary judge's reasoning on Mr Haley's claim under s 117(1) was as follows. First, his Honour extracted the following paragraphs from Mr Haley's application (at PJ [635]): Notice of Termination: i. NES requires employers to give notice to the employee by either: 1. Delivering it personally; 2. Leaving it at my last known address; or 3. Sending it by pre-paid envelope to my last known address ii. I confirmed my address to Murray Rose at the meeting on 08 July 2020. ii. The decision to dismiss me was initially delivered by phone call at 4:45pm on Friday, 24 July 2020. iv. This was followed up with a letter attached to an email and sent my personal email address at around 6:00pm on Friday, 24 July 2020. v. Laing O'Rourke failed to meet the NES requirements in respect of giving notice of termination… 592 At PJ [636], the primary judge stated that, "[a]lthough [Mr Haley] does not expressly so allege, it is apparent that Mr Haley relies on s 117(1) of the FW Act", which his Honour then extracted. 593 Second, his Honour stated at PJ [637] that, consistent with the legislative Note 2 to s 117(1), the subsection "must be read with s 28A(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act)", which provides: (1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or (b) on a body corporate–by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate. Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication. 594 Third, his Honour acknowledged at PJ [638] the exception in s 123(1) whereby s 117(1) does not apply to an employee whose employment is terminated because of serious misconduct. His Honour then extracted the definition in s 12 of the FW Act which provides that "serious misconduct" has the meaning prescribed by the regulations, being reg 1.07 of the FW Regulations, which relevantly provides: (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. (2) For subregulation (1), conduct that is serious misconduct includes both of the following: (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer's business. 595 Fourth, his Honour stated at PJ [639] that: Regulation 1.07 does not apply to Mr Haley because I have not accepted LOA's claim that Mr Haley engaged in serious misconduct. For that reason, Mr Haley is not an employee whose employment has been terminated because of serious misconduct. (Emphasis added). 596 Fifth, his Honour reasoned that, because LOR communicated the Termination Letter by email sent by Mr Chatwin to Mr Haley at 5:09 pm on 24 July 2020, LOR had not "given", within the meaning of s 28A(1) of the Acts Interpretation Act, to Mr Haley "written notice of the day of the termination": PJ [641]. The primary judge concluded that: That means that [LOR] contravened s 117(1) of the FW Act; which, in turn, means [LOR] contravened s 44(1) of the FW Act, which provides that an "employer must not contravene a provision of the National Employment Standards". 597 As is evident from the above summary, the premise upon which the primary judge arrived at the conclusion that LOR had contravened s 117(1) was that s 117(1) requires an employer to give the employee written notice of the day of the termination in accordance with s 28A(1) of the Acts Interpretation Act—that is, "by delivering it to the person personally" or "by leaving it at, or by sending it by pre-paid post to" the person's last known place of residence. With respect, while LOR did not challenge this reasoning and it was therefore not put before the Court as an issue to be determined, I have serious doubts as to its correctness and make the following observations. 598 Section 117(1) states that an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of termination. It does not specify how such notice must be "given", other than that it must be written notice. True it is that Note 2 accompanying the sub-section states that "Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given" (emphasis added). However, there is nothing in the text of the sub-section to suggest that notice must be given in the ways specified in those sections. 599 Further, regard must be had to the text of those sections themselves. Section 28A of the Acts Interpretation Act states that, "[f]or the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then the document may be served" in the specified ways (emphasis added). Again, this language is permissive, not imperative. Such an interpretation is supported by authority which indicates that s 28A is "facultative" only and not exhaustive as to how documents may be served. In Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464 at [43], Austin J stated that "[s]ection 28A is facultative, and does not exclude the possibility that service may validly be effected in some other way under any other law, including an applicable State law". 600 In Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481, Snaden J had occasion to consider the other means by which notices may be validly effected. In that case, the appellant (like Mr Haley below) submitted that the provision of notice of the termination of her employment that was given to her by email did not satisfy s 117(1) of the FW Act as that sub-section does not contemplate email as a means by which such notice may be given: at [186]. His Honour rejected this submission, stating as follows (at [188]-[191]): [188] The cross-respondents submitted that s 117 of the FW Act by its terms permits the provision of notice of termination by email. They argued that the means of providing notice stipulated in the second note to sub-s 117(1) is permissive rather than mandatory, and therefore does not preclude written notice given by email. It is, in any event, a note to the legislation only. The reference in that note to s 28A of the AI Act is said to bolster that conclusion, as the language in that section is likewise permissive, and the note to s 28A(1) in turn refers to the [Electronic Transactions Act 1999 (Cth) (ET Act)]. [189] On that score, SMRC's notice of contention argued that the ET Act applied so as to authorise the giving of effective written notice of termination of Ms Shum's employment by means of the emails that Mr Heeney sent on 14 and 19 June 2017. SMRC relied on s 9 of the ET Act, which applies in circumstances where, under a law of the Commonwealth, a person is required or permitted to give information in writing. Section 9 then provides any such requirement is taken to have been met by means of an electronic communication provided certain criteria are satisfied. I do not, however, consider that s 9 of the ET Act is relevant to the validity of any notice given pursuant to s 117 of the FW Act, as the latter section neither requires nor permits information to be given in writing. It requires, rather, that an employer must not terminate an employee's employment unless written notice has been given. [190] I consider instead that s 8 of the ET Act is applicable to the giving of notice of termination by email. Subsection 8(1) provides that "[f]or the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications". A notice of termination of employment is a notice of a kind to which the ET Act applies: see the definition of "transaction" in s 5 of that act (at [33] above). That being so, a notice of termination would not be invalid merely because it was provided by email. [191] By reason of the operation of the ET Act, then, SMRC's email communications sufficed to serve as effective written notice of Ms Shum's dismissal. I accept that Mr Heeney's email to Ms Shum sent on 19 June 2017 constituted written notice of termination of Ms Shum's employment, and that it should be taken to have been received on 19 June 2017: ET Act, s 14A. It follows that the factual precondition specified in sub-s 117(1) of the FW Act was met — that is, Ms Shum was given written notice of the day of her dismissal, and SMRC was not prevented from proceeding to terminate her employment by reason of that sub-section. (Emphasis added). 601 None of these matters as to the proper construction of s 117(1) and its interaction with s 28A of the Acts Interpretation Act were argued before the primary judge and were not argued before me. 602 Rather, LOR contended that the primary judge erred by finding that it had contravened s 117(1) on two other bases. The first, articulated in its Amended Notice of Appeal, was that I should find, contrary to the primary judge, that Mr Haley had engaged in serious misconduct, such that the s 123(1)(b) exception would apply, meaning that the obligation to provide notice under s 117(1) never arose. LOR further contended (in its written submissions, but not in its Amended Notice of Appeal) that, even if I was not satisfied that Mr Haley had engaged in serious misconduct, the finding that it had contravened s 117(1) should nevertheless be rejected on the basis that Mr Haley was dismissed on 24 July 2020 for serious misconduct, irrespective of whether the primary judge (and now this Court on appeal) found at a later point in time that Mr Haley had not in fact engaged in serious misconduct. 603 The parties did not address the Section 117 Ground in their oral submissions. Following the hearing of the appeal, in the course of deliberating on the Section 117 Ground, it became apparent to me that the primary judge was not assisted by the parties in relation to the matters I have identified above at [597]-[601]. It also became apparent to me that LOR's second argument advanced in its written submissions was not raised in its Amended Notice of Appeal and had not been addressed by Mr Haley. Accordingly, I invited the parties to address me on the proper course to take in those circumstances. Counsel for Mr Haley reiterated his client's stance, articulated repeatedly at the hearing of the appeal, that he did not consent to the appeal being decided on any grounds which were not raised in LOR's Amended Notice of Appeal, and that it would be oppressive to Mr Haley to permit LOR to seek to amend its grounds of appeal at this late stage. There is considerable force in this submission, and I accept it. Mr Haley should not now be required to contend with grounds which were raised in LOR's written submissions that went beyond its Amended Notice of Appeal. Nor should Mr Haley be required to answer the Section 117 Ground on the alternative basis which I have independently identified above at [597]-[601]. There was no application made by LOR to further amend its grounds of appeal to advance either of those points. 604 It follows that the Section 117 Ground must be determined on the narrow basis contended for by LOR in its Amended Notice of Appeal, namely that the primary judge erred in finding that it contravened s 117(1) because his Honour should have found that Mr Haley engaged in serious misconduct and that the sub-section therefore did not apply by reason of s 123(1)(b). 605 In the event, as I have found that the primary judge did not err in finding that Mr Haley did not engage in serious misconduct warranting summary dismissal, this ground of appeal falls away. For the reasons I have stated above, it is unnecessary for me to go on to consider matters not raised by the Amended Notice of Appeal. 606 The Section 117 Ground fails. I. PROCEDURAL FAIRNESS GROUNDS I.1 The Delay Ground 607 As noted earlier in these reasons, LOR's Amended Notice of Appeal raised a ground of delay, namely that: The Appellant was denied procedural fairness by reason of the delay between the giving of evidence in the proceeding (19, 20, 21 and 23 September 2022), the making of closing submissions (28 November 2022) and delivery of the primary judgment (28 March 2024). 608 This ground was not addressed in LOR's written submissions, leading Mr Haley to surmise in his written submissions that the ground had been abandoned. Nevertheless, Mr Haley's submissions dealt with the issue. In oral argument before me, Senior Counsel for LOR pressed a version of the delay ground in which it was suggested that "whilst there are things that can be done 16 to 18 months after a hearing… "feeling" is the one thing that does depart, particularly in a busy court such as the Circuit Court". The submission was developed as follows: COUNSEL: Your Honour, the feeling of the case cannot be underestimated, and it's why we have the principles of appeal that we do. But when one departs 16 to 18 months from that feeling, and, as our friend says, the trial court goes and reviews all the materials, and it does so in an attempt to make it clear that all relevant issues have been considered – in that process there can sometimes be a temptation to start with a conclusion and fill in the reasons, and, in our respectful submission, we fear that that occurred in this case, and we submit that, if it did occur, that would constitute error correctable on appeal. When one comes to look at the appellate principles, to the extent that the judge is asked to go back and review all materials 16 to 18 months later, consider them and come to a conclusion, he is in a worse position than the appellate court because he's doing it at that point without any assistance from counsel. And when one reviews the judgment at first instance in this case it reveals a large amount of authority considered by the court, unassisted by counsel in address, unassisted by the parties in address. Now, your Honour will have seen from our written submissions we're somewhat critical of his Honour's conclusions as to the legal rights of the Pointons in relation to the property; perhaps, if that had been an issue raised in the proceedings, that could have been addressed… 609 The proceedings below were heard over six days in 2022 (five days in September for evidence and one day in November for submissions), with final submissions on 12 December 2022. The primary judgment was delivered on 28 March 2024, approximately 16 months after final submissions and 18 months after the hearing of the evidence. As already noted, the primary judgment was very lengthy, running to over 300 pages and 675 paragraphs. 610 Mr Haley contended that whilst the delivery of the primary judgment was not speedy, it was not inordinately delayed, particularly having regard to the large number of issues raised by the parties and the need to closely analyse a mass of documentary material. Mr Haley submitted that it is clear from the primary judge's reasons that his Honour dealt with the many issues raised by the parties in exceptional detail. He further submitted that this is not a case where the Court on appeal is left to speculate as to whether the primary judge considered all of the issues or as to the basis for his Honour's key factual findings. 611 Delay per se is not a ground of appeal. Rather, delay may require a trial judge to deliver reasons which make it clear that all the relevant issues have been considered, and which make clear the basis for key factual findings and the reasons why witness evidence has been accepted or rejected: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 at [69]ff; Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729 at [44]; Microsoft Corp v CPL Notting Hill Pty Ltd [2024] FCAFC 20; (2024) 177 IPR 389 at [115]. 612 Although there has been a considerable delay, I am not satisfied that LOR has established error in this respect. The primary judgment reflects that the primary judge considered the matter in detail and methodically, despite the errors I have found. Further, despite LOR's assertion that the primary judge considered "a large amount of authority… unassisted by…the parties in address", Senior Counsel for LOR failed to identify with any specificity what "consideration of authority" this submission was directed toward. It was suggested in oral argument that if the issue of "the legal rights of the Pointons in relation to the property" had been raised in the proceedings, that could have been addressed by Counsel. However, I have already dealt with that as an individualised error made by the primary judge. The submission that the primary judge proceeded in the absence of assistance from the parties was otherwise not developed by LOR and I need not say any more about it. 613 For these reasons, to the extent it was maintained by LOR, the Delay Ground fails. I.2 The Browne v Dunn Ground 614 Next, LOR claimed by its Amended Notice of Appeal that it: … was denied procedural fairness by reason of the primary judge's decision to reject Mr Simon Chatwin's evidence that he was the sole decision-maker in relation to the decision to terminate the Respondent's employment, and to find that the Appellant's managing director, Mr Cathal O'Rourke, likely made the decision to terminate the Respondent's employment, in circumstances where it was never put to Mr Chatwin in cross-examination that Mr O'Rourke was the sole decision-maker in relation to the decision to terminate the Respondent's employment. (Emphasis added). 615 LOR developed this ground in its written submissions, where it stated as follows: 51. Mr Chatwin was not accorded the necessary procedural fairness of being able to answer an allegation that someone other than himself was the decision maker in relation to the termination of the Respondent's employment. Perhaps in anticipation of such a complaint the Primary Judge notes that he had put the Applicant/Appellant on notice that such a finding might be made. 52. It might be noted that the purported "warning" was given during a procedural hearing where the witness, Mr Chatwin was not present. More particularly, it was predicated upon: If, however, as Mr Haley appears to intend to submit at the hearing commencing on 19 September 2022, LOA's documents suggest there were employees of LOA, other than Mr Chatwin, who were responsible for, or who joined in LOA's decision to terminate Mr Haley's employment, it may be open to Mr Haley to tender at the hearing the documents that he will submit show or suggest this; and to submit that LOA's not calling the person or persons which the documents suggest may have made or joined in the making of LOA's decision to terminate Mr Haley's employment, is a basis for drawing with greater confidence inferences that are available to be drawn on the basis of the documents that other employees of LOA made or joined in the making of LOA's decision to terminate Mr Haley's employment. 53. As it happened, whilst the Respondent cross examined Mr Chatwin at length about the involvement of others in the decision-making process, he never actually put to Mr Chatwin that any particular individual was, in fact, also decision maker. As close as it appears to get is when the Primary Judge assists the Respondent by explaining the necessity to directly put challenged evidence before the witness. The exchange follows from a question from the Respondent to Mr Chatwin: Did you take any advice from Cathal O'Rourke between 17 and 20 July, as to whether to terminate my employment?---No. The trial judge asks whether the Respondent will submit that this evidence should not be accepted, and the Respondent replies: We will see where we get to, your Honour. 54. Ultimately the Primary Judge finds that Mr Chatwin was not involved in the decision-making process. The Primary Judge provided three reasons for that finding, being: a. Mr Chatwin did not give affidavit evidence about his discussions with the Chief Executive, Mr O'Rourke in relation to the termination of the Respondent's employment; b. the calculations for the Respondent's termination pay were done prior to the time when Mr Chatwin gave evidence that he made his decision; and c. Mr Chatwin did not give evidence about who prepared the termination letter and what contribution Mr Chatwin had made to the preparation of that letter. 55. It is convenient to note here that the Primary Judge did not point to any document which led to an inference that Mr O'Rourke was the decision maker. Moreover, there was no evidence (documentary or otherwise) to suggest that Mr O'Rourke had any involvement in having calculations for termination pay performed or in the preparation of the Dismissal Letter. 56. In the respectful submission of the Applicant/Appellant, the Primary Judge, whilst evidently mindful of the necessity to comply with the fairness requirement inherent in the application of the rule in Browne v Dunn, failed to accord that fairness to the Applicant/Appellant on the issue of the identity of the decision maker. 616 In response, Mr Haley submitted that the identity of the decision-maker was squarely in issue in the proceedings and any suggestion that LOR was denied a fair opportunity to be heard on that issue was misconceived. First, it was noted that in an interlocutory dispute prior to the hearing of the substantive proceedings below, Mr Haley sought disclosure of evidence relevant to the identity of the decision-maker, which course was successfully resisted by LOR: see the Subpoena Judgment. In the course of that dispute, Mr Chatwin gave affidavit evidence in which he denied a contention put by Mr Haley that various persons including Mr O'Rourke were decision-makers and asserted that he was the sole decision-maker. In determining that dispute, the primary judge gave the "warning" to which LOR referred in its submissions above that Mr Haley appeared to intend to submit at hearing that persons other than Mr Chatwin were involved in the decision to terminate Mr Haley's employment (extracted at PJ [492]). 617 Second, Mr Haley submitted in both opening and closing submissions in the proceedings below that Mr Chatwin was not the sole decision-maker and that Mr O'Rourke was at least involved in the decision to dismiss. 618 Third, LOR did not submit in closing below that the Court should decline to consider a submission that Mr O'Rourke was a or the decision-maker because that proposition had not been put to Mr Chatwin in cross-examination or because it would otherwise be unfair to do so. 619 Finally, it was submitted that there is no rule which required the primary judge to accept Mr Chatwin's assertion that he was the decision-maker unless the contrary was put to him. In this regard, it was said that the rule in Browne v Dunn did not have that effect because: (a) it is doubtful whether the rule operates at all in relation to a litigant in person: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 532; (b) the rule does not apply where the witness is on notice that their evidence is in contest (which, for the reasons given above, both LOR and Mr Chatwin were); and (c) in any event, a breach of the rule does no more than authorise a trial judge to address any attendant unfairness, there being no rule of law that requires acceptance of unchallenged evidence: Zong v Lin [2022] NSWCA 136 at [53]. 620 It is not necessary to determine every aspect of Mr Haley's contentions. It is sufficient that I reject LOR's contention that Mr Chatwin was denied procedural fairness. The identity of the decision-maker was squarely in issue in the proceedings below. LOR was on notice of the possibility that the case could be determined on the basis that someone other than Mr Chatwin, including Mr O'Rourke, was the true decision-maker, or at least one of them. The Second Chatwin Affidavit expressly dealt with the issue and contained Mr Chatwin's denials that anyone else was involved in the decision to terminate Mr Haley's employment. The acceptance or rejection of that evidence was a matter about which both LOR and Mr Chatwin were on notice about prior to the commencement of the trial. In those circumstances, I consider that there was no error and LOR was not denied procedural fairness by reason of it not having been explicitly put to Mr Chatwin in cross-examination that Mr O'Rourke was involved in the decision to terminate 621 The Browne v Dunn Ground fails. I.3 The Absence of Evidence Ground 622 By this ground, LOR contended that the primary judge acted in the absence of evidence in finding that the Pointons were not entitled to enter the premises during the Incident and that their unlawful entry onto the premises "incited" the Incident. 623 Again, I have already dealt with the subject matter of this ground of appeal above, finding that his Honour did err in finding that the Pointons were not entitled to enter the premises, but that equally the evidence did not establish that they were so entitled. As for the alleged error in finding that their unlawful entry onto the premises "incited" the Incident, for the reasons I have given (including at [534]), I do not consider that the primary judge erred in so finding. J. DISPOSITION OF THE APPEAL 624 For all of the foregoing reasons, I will make orders upholding the Seventh and Eighth Alleged Factual Errors, setting aside Declaration 2 made by the primary judge on 28 March 2024 and remitting the matter for redetermination of the matters I have raised above in Part F.7.4(d). I certify that the preceding six hundred and twenty-four (624) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate: Dated: 15 November 2024 SCHEDULE: GLOSSARY OF RELEVANT PERSONS AND ORGANISATIONS (a) LOR – Laing O'Rourke Australia Management Services Pty Ltd (the appellant); (b) Mr Tom Haley – Commercial Leader, Clients and Markets Team, LOR and visitor to the Pambula Property (the respondent); (c) Ms Shaunna Haley – Mr Haley's wife; (d) Mr Robert Pointon and Ms Sally Pointon – owners of the Pambula Property; (e) Mr Simon Chatwin – Commercial Director, LOR; (f) Mr Murray Curnow-Rose – Human Capital and Industrial Relations Lead and Employee Relations Manager for Bushfire Project, LOR; (g) Mr Cathal O'Rourke – Managing Director, LOR; (h) Mr Dane Bates – Head of Industrial Relations and Human Capital Operations, LOR; (i) Mr Daniel Sleeman – Senior Employee and Industrial Relations Manager, LOR; (j) Mr Simon Barrett – Head of Legal, Contracts (Core and Specialist Businesses), LOR; (k) Ms Sarah Boulter – Human Capital Business Partner, LOR; (l) Ms Cassandra Byrne – Human Capital Business Partner, LOR; (m) Ms Helen Fraser – General Manager, Human Capital, LOR; (n) Mr Paul Barrie – Project Director for Bushfire Project, LOR; (o) Ms Michelle Salisbury – Senior Human Capital Advisor, LOR; (p) Mr Pat Cashin – Director, Major Projects, LOR; (q) Mr Jeff McAuliffe – Project Leader for Bushfire Project, LOR; (r) Ms Holly Hatcher – Commercial Manager, LOR; (s) Mr Kevin McDevitt – an officer or member of the LOR group of companies in the United Kingdom; (t) Mr Andrew Byrne – Commercial Manager for Bushfire Project (South Region), LOR and Pambula Property Resident; (u) Mr Shane Neely – Quantity Surveyor for Bushfire Project (South Region), LOR and Pambula Property Resident; (v) Mr Adam Neely – Assistant Quantity Surveyor, LOR and Pambula Property Resident; (w) Mr Shaun Boyle – Commercial Administrator for Bushfire Project (South Region), LOR and Pambula Property Resident; (x) Mr Jamie Boyle – Commercial Administrator, LOR and Pambula Property Resident; (y) Mr David Grierson – Senior Superintendent, LOR and visitor to the Pambula Property; (z) Mr David Field – Procurement Manager, LOR and visitor to the Pambula Property; (aa) Ms Amy Lovell – Assistant Quantity Surveyor, LOR and visitor to the Pambula Property; (bb) Ms Lisa McKeever – Commercial Administrator (labour hire engaged by LOR) and visitor to the Pambula Property; (cc) Central Travel Team (CTM) – LOR's external travel provider; (dd) "Amy" – Corporate Consultant, CTM Laing O'Rourke Team; (ee) Ms Tarsh Woodford – Hub Travel Coordinator, Central Travel Desk, Australia Hub.