Lacase v Neon Group Pty Ltd [2016] FWC 3058 (23 May 2016) [2016] FWC 3058 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Michael Lacase v Neon Group Pty Ltd T/A Neon Cosmetics Pty Ltd (U2015/16850) COMMISSIONER WILSON MELBOURNE, 23 MAY 2016 Application for relief from unfair dismissal. [1] Michael Lacase was employed by Neon Cosmetics Pty Ltd from 20 August 2009 until his dismissal on 4 December 2015, with him being dismissed for what the company alleges as serious misconduct. [2] Mr Lacase seeks through this application a finding of unfair dismissal and compensation for his dismissal. [3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 , I find that Mr Lacase’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise. [4] For the reasons set out below, I am not satisfied that Mr Lacase’s dismissal was unfair within the meaning of the Act and accordingly his application will be dismissed. BACKGROUND [5] Mr Lacase was employed as a Compounding Supervisor by Neon Cosmetics. At the time he was dismissed, two staff reported to him. Mr Lacase’s hours of work were between 7:45 AM and 3:51 PM. 1 [6] Mr Lacase was dismissed on 4 December 2015 following a meeting with Mr Serge Stupar, Production Manager for the Respondent and to whom Mr Lacase reported, in which allegations had been put to him that he had falsified the timesheets he was required to keep. The termination letter from Mr Stupar alleges that he “was approached numerous times regarding allegations that you were recording overtime hours that you did not actually work”. 2 Mr Stupar records in his letter of termination that an investigation into the allegations was conducted and that staff who were present during the times about which he was concerned had been interviewed on the subject. [7] The particular complaint that led to Mr Stupar’s concerns came from Doug Griffiths, a maintenance employee, in November 2015. Mr Stupar’s evidence, corroborated by Mr Griffiths, is that the two had a conversation about whether Mr Lacase was claiming periods of overtime without actually working them. 3 [8] Mr Stupar did not immediately raise this complaint with Mr Lacase. Instead he asked Mr Quach, the company’s Production Planner, to check if Mr Lacase had arrived early on two days that he himself was away. The product of this was that Mr Stupar was informed by Mr Quach that Mr Lacase had not been seen at work until 7:40 AM on both 23 and 24 November 2015, with Mr Stupar giving evidence that both those were days on which Mr Lacase claimed overtime – one hour on 23 November and 1.5 hours on 24 November 2015, respectively. Mr Stupar makes the point that in order for the claims to be justified, Mr Lacase would have had to start work on those days at respectively 6:45 AM and 6:15 AM. 4 [9] He also made a point of checking Neon Cosmetics’ car park at times outside the spread of working hours as referred to above in order to see if Mr Lacase’s car was there. In particular he would drive past the car park, sometimes multiple times at about 15 minute intervals, until he observed Mr Lacase’s car being there. 5 [10] Mr Stupar’s evidence about his examination of the car park included; “On 19 November 2015, 26 November 2015, 27 November 2015, 1 December 2015 and 2 December 2015 I drove past the workplace between 6:30am and 7:30am and did not see the Applicant’s car. On all of these dates I parked in an adjacent street at around 6:30am and I drove around the premises every 15 minutes to check whether the Applicant’s car was there, however it was not present until between 7:30am and 7:35am.” 6 [11] The company has different procedures for recording actual times worked by employees and the hours recorded against particular products or process lines for the purposes of job costing. Mr Stupar’s evidence is that the hours recorded in the two different systems are supposed to balance. Since the company is a manufacturer he has an expectation that all time worked by an employee, such as Mr Lacase, is allocated against a particular line. While that is so, Mr Stupar notes a particular concern about Mr Lacase’s recorded hours for 1 December 2015; “I have included a copy of the paybook … and the timesheet … that were completed by the Applicant. [The paybook] is handed over to the payroll department every Wednesday by the supervisor for the designated area and shows the hours that the Applicant worked during the week. For example, on the week ending 2 December 2015, the Applicant recorded 38 normal hours and 6 overtime hours. [The timesheet] is filled out every day by the Applicant and shows how many hours each person from compounding spends making the product. Timesheets are handed over to Joan Atkinson, the project administrator, every morning to record the hours worked. These two documents show that the hours recorded as overtime do not match with the days that I was present on site. For example, it was recorded in the paybook … on 1 December 2015 that the Applicant worked 9.1 hours (7.6 ordinary hours and 1.5 overtime hours), however the timesheet recorded 8.6 hours (7.6 ordinary hours and 1 overtime hour).” 7 [12] Mr Stupar arranged to meet with Mr Lacase about his concerns on 2 December 2015. The company accountant, John Parker, was also present to take notes, and Mr Lacase was offered an opportunity to have a support person attend on his behalf, but declined that opportunity. Mr Stupar put the allegations to Mr Lacase, saying words to the effect that he was concerned that Mr Lacase “had been claiming overtime he had not worked”. 8 [13] The notes of the meeting, which I accept as broadly accurate of the matters discussed, record as follows; Mr Lacase saying that “he was shocked to hear of these allegations” and that he “denied that he wasn't working the overtime and that he is starting early in the morning and sometimes is finishing late after normal finish time”; Mr Lacase putting forward after Mr Stupar’s comments about observing his presence in the car park that “he sometime started his overtime at 6.30 a.m. and when he starts that early he will work his overtime and then go down to McDonalds to get breakfast. This would be the reason why his car would not be in the carpark when Serge checked.” Mr Lacase saying further that “he sometimes opened up and started the machines etc. first thing in the morning prior to his normal commencement time”. 9 [14] Mr Lacase was stood down at the conclusion of the meeting on 2 December 2015 and informed by Mr Stupar that he would investigate the matter further and then meet with him again on 4 December 2015. 10 [15] In the period between the meetings on 2 and 4 December 2015, Mr Stupar interviewed Irene Griffiths, Production Supervisor, Mr Quach and Mr Griffiths. 11 While the latter two gave evidence in these proceedings, Ms Griffiths did not. One of the matters reported by Mr Griffiths is that on 3 December 2015, he had a phone call from Mr Lacase asking “me to cover for him”. 12 In oral evidence, Mr Griffiths elaborated in this way; “Can you explain to the Commission what you understood that to mean?---I mean cover for him as in he wasn't there on time. How did you form that view?---He said, "Can you do me a favour? Can you cover for me?" What else did he say in that conversation, was there anything?---Not really, not about him. I just said, "No." That's pretty straightforward.” 13 [16] Mr Griffiths went further on this point in cross-examination; “Okay. So I just want to then ask you your recollection - you know, I just want to - when he wanted to say to you "cover up"?---"Can you do me a favour?" Yes. Yes. Why did you assume that it's actually about the hours?---He said, "Can you cover for me and say I've been coming in early?" That's how I knew and I said, "No." It's putting my job at risk then because I'm now - I'd be lying for him. So did he tell you the specific dates that he wanted you to cover up?---No, we didn't get that far.” 14 [17] On 4 December 2015 Mr Stupar met again with Mr Lacase and Mr Parker with Mr Lacase again being offered and declining the opportunity for the attendance of a support person on his behalf. The meeting included a review of the minutes of the first meeting, about which Mr Lacase wanted it known that the specific dates he was alleged to have claimed time not worked had not been put to him on that occasion. The notes of the meeting record that Mr Stupar advised Mr Lacase that the company’s allegations related to Thursday, 26 November 2015; Tuesday, 1 December 2015 and Wednesday, 2 December 2015. [18] Mr Stupar informed Mr Lacase that he had formed a view that he had claimed overtime for hours not worked. Mr Stupar asked Mr Lacase if he had any response or comment about the allegation, which he did. In this regard Mr Lacase read from prepared notes, which are included within the notes of the meeting taken by Mr Parker 15 ; “I feel that you keep targeting me, (2 examples in 3 months) trying to find anything to pin me down or set me up for failure. You could have easily done your investigation whilst keeping me at work but instead you choose to suspend me at a critical time for production when we are down 1 man, have a new trainee and with only 2 weeks before I go for my operation which you are well aware of. By suspending me for those 2 days your adding pressure on me to meet impossible production deadlines. You keep targeting me and I feel that it's unjustified. It's starting to affect me professionally, personally and also on a health level where my stress and anxiety levels are so high that I have extremely high blood pressure as a result. I hope this will stop rather sooner than later or that we find a way to resolve this” 16 [19] Once that part of the meeting had ended, Mr Stupar halted the meeting in order to consider Mr Lacase’s responses. 17 When the meeting resumed Mr Stupar informed Mr Lacase “that after considering the information presented it was considered that he was involved in a matter of serious misconduct and that in view of this his employment he was to be terminated forthwith”. 18 A letter confirming his termination was also provided to the Applicant. [20] Mr Stupar’s evidence is that after consideration of all the material he had available to him, it was his view that Mr Lacase had claimed overtime to which “he was not entitled to on Thursday, 19 November 2015, Thursday, 26 November 2015, Friday, 27 November 2015, Tuesday, 1 December 2015 and Wednesday, 2 December 2015 and likely did this on other occasions as well”. 19 [21] Mr Lacase rejects the allegations made against him; saying that he had always attended work for the times he put in the paybook, and that he never claimed overtime to which he was not entitled; and that he never intentionally over-estimated or claimed extra overtime. 20 He put forward that there were occasions in which he worked but did not put time into the paybook, describing it as a “courtesy” that he does for Neon. 21 There were other times, for example on 30 November 2015, when although he arrived at work at 7:10 AM, 35 minutes before his starting time, “no overtime was claimed in the paybook as it was already accounted for on the Friday” 22 , and said the following about the potential for discrepancies between what is in the paybook and the timesheets; “…we have to give the timesheets in the morning every day and the paybook's done on a weekly basis so it's generally a memory thing of how long my employees or myself have worked during that week.” 23 [22] Mr Lacase referred in his evidence to a particular discrepancy, on Thursday, 26 November 2015, with this evidence during cross-examination; “You haven't mentioned it in your witness statement but the respondent actually says that you claim that you started work at 6.15 am on Thursday 26 November, but you didn't, did you?---That was a carry-on over from the day before of the work that we had done the day before and, as I said before, the timesheet is a reflection on the products and how long the product needs to (indistinct) up and continue to be made. But in the paybook you have claimed an hour and a half of overtime?---Yes. You didn't work that overtime?---Yes, I did. So that was done on the day before. You have claimed overtime for a day that you previously worked?---That's correct. So you haven't accurately recorded the overtime on the day that you worked the overtime?---That's correct.” 24 [23] In relation to Friday, 27 November 2015, he gave the following evidence; “Your witness statement says that you performed an hour of overtime on Friday and that you had claimed another half an hour on that Friday for work that you say you would have to complete on Monday?---Monday morning, that's correct. When you claimed that overtime you hadn't actually performed the overtime?---No, because the paybook is done on a weekly basis, so it was going to be on a Wednesday where I put it into the paybook. But you claimed an hour and a half on the Friday when you were - - -?---Which is on the timesheet, which is then transposed to the paybook which is done on the Wednesday. I understand the paybook records and the paybook provides that you worked an hour and a half of overtime on that Friday?---Yes. But you didn't work an hour and a half of overtime on that Friday?---No. So you lied in the paybook?---Not in the paybook, no. So you lied on your timesheet though?---The timesheet was an allocation of the work that needed to be done. I have got the timesheet here and this has been provided to you as part of this application and it provides that you worked an hour and a half of overtime on that Friday?---That's not the timesheet, that's a paybook.” 25 [24] In relation to Tuesday, 1 December 2015, the Applicant’s evidence was the following; “On Tuesday, 1 December you say that you started at 6.45, which is an hour before your normal commencement time?---That's correct. You say you claimed an hour and a half overtime because you had arrived early the day before?---I finished - which date are you relating to, sorry? This is Tuesday, 1 December?---Yes. You started an hour before?---That's correct. But you claimed again an hour and a half overtime because you say you arrived early the day before?---No, because I arrived early that day and I stayed back on the Tuesday, which was the 2nd. My understanding from your witness statement is you've said again that you started early but claimed an hour and a half because you had had to arrive early the day before, so you're saying that's not correct now?---You're just confusing me. Yes, that's correct.” 26 [25] Also known to Mr Stupar before he made the decision to dismiss Mr Lacase was a text message exchange between Mr Lacase and Mr Griffiths on 3 December 2015. 27 Part of that exchange included Mr Griffiths referring to Mr Stupar’s surveillance of the car park, with Mr Griffiths asking why Mr Lacase didn’t just come in early. Mr Lacase responded to the effect that he had come in at about 7:15 or 7:20 AM and “that early for me”. 28 The two then exchanged; 29 Mr Griffiths: “Yeah but if u didn’t put that in the pay book. It’s stealing I guess” Mr Lacase: “Yea but its only half an hour here n there …” Mr Griffiths: “I don’t no what’s going on but he does u get the sack if u don’t wash ur hands after going to the toilet” Mr Lacase: “Lol” Mr Griffiths: “If u think ur gonna be sacked I would ring up and quit cos it will fuck ur resume.” Mr Lacase: “Nah not worried mate” Mr Griffiths: “Yeah suppose u was sick of the place anyway” Mr Lacase: “If they sack me they pay me out” Mr Lacase: “I prefer to keep the job but he doesn’t like me”. LEGISLATION [26] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows; 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. CONSIDERATION [27] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier. [28] The Applicant’s evidence suffers from his inability to put forward a consistent explanation about his timekeeping. After careful consideration of all the evidence given in this matter, including that of Mr Andrew Pope, who left the business in April 2014, and Mr Parker, who took notes at the two meetings, I prefer the evidence of Mr Stupar and Mr Griffiths to that of Mr Lacase. [29] A consideration of the evidence presented in this matter leads to the following findings which inform my determination of the application; Mr Lacase was not entitled to claim overtime on Thursday, 19 November 2015, Thursday, 26 November 2015, Friday, 27 November 2015, Tuesday, 1 December 2015 and Wednesday, 2 December 2015; On 2 December 2015, Mr Lacase was aware in general terms that Neon Cosmetics had questions about his timekeeping and that it required a response from him on the subject; On 3 December 2015, Mr Lacase sought Mr Griffiths to assist him in making an untruthful explanation to the company about those allegations, a request that Mr Griffiths refused; On 3 December 205, Mr Lacase expressed indifference to Mr Griffiths about the significance of the allegations, or that he may be dismissed as a result; On 4 December 2015, Mr Lacase was given greater specifics of the allegations against him and was invited to respond. When he did so, he failed to be candid and gave an explanation which was, in all the circumstances, untruthful and designed to deflect attention away from him. (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) [30] Having been dismissed for misconduct, the Commission is first required to find whether, on the balance of probabilities, the alleged misconduct actually occurred. 30 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities. 31 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation. 32 [31] The Respondent alleges misconduct on the part of Mr Lacase in two forms; firstly by claiming overtime in his timesheets that had not been worked; and secondly by not being truthful with it when allegations about his misconduct were put to him on to 2 and 4 December 2015. I find both aspects of misconduct alleged by the Respondent have been proven on the balance of probabilities. [32] Mr Lacase’s own evidence does not directly contradict that he made claims through his timesheets for overtime periods that was not directly associated with time worked. [33] Several points of defence are offered by Mr Lacase against the Respondent’s allegations. At the start of the company’s enquiries they included that he may have been having breakfast, thus explaining why his car had not been seen or that he worked time for which he did not make overtime claims. 33 He then put forward that hours in the paybook and timesheet may not reconcile because of the documents being submitted for different date ranges, or that matters of memory might explain any differences. 34 He put forward that Mr Stupar and Mr Griffiths may be lying when they gave evidence they had not seen Mr Lacase at work. 35 He put forward that the Respondent was endeavouring to attempt “to find anything to pin me down or set me up for failure”. 36 His representative put forward questions designed to suggest that Mr Griffiths may be impaired at work, with the implication his evidence may be unreliable. 37 [34] He also put forward a submission which I understand to be essentially that time worked outside ordinary hours could be aggregated with an overtime claim made at some later time pertaining to the aggregated period, even the next day. In effect, this is an invitation to accept that there is at Neon Cosmetics a form of flexible working hours which allowed him to make an overtime claim without specifying the precise dates or times to which the claims referred, with the date and time recorded on the pay sheet being merely a surrogate for what was actually worked. A defence of this nature may be plausible if it were corroborated by evidence that such procedure or culture was actually in place. However, there was no such corroboration before me. [35] Further to this evidence, and relative to the question of whether overtime was claimed but not for time actually worked, is the evidence of Mr Griffiths and Mr Quach. [36] That evidence confirms that Mr Lacase was not seen working overtime in the company's premises on days and at times which he claimed overtime, and that while he was aware from what Mr Griffiths had said that the company may take a dim view of that situation, he was indifferent to its consequences. The evidence of Mr Griffiths and Mr Quach also confirms that Mr Lacase was not candid about his conduct, nor cooperative with his employer's investigation into the conduct when questioned in the course of the meetings held with him on 2 and 4 December 2015. [37] For these reasons I am satisfied that the Respondent had a valid reason for Mr Lacase’s dismissal, which in his case is related to his conduct. (b) whether the person was notified of that reason [38] I am satisfied that Neon Cosmetics notified Mr Lacase of its reasons for his termination. He was told of those reasons on the day of the dismissal, 4 December 2015, with those reasons later being communicated through a letter of the same date to him from Mr Stupar. (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [39] Consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal is consequential to a finding there is a valid reason for dismissal. 38 [40] The evidence allows findings that Mr Lacase was aware of the serious nature of the allegations made against him. They were first put to him in the meeting on 2 December 2015 and he was given ample opportunity both on that occasion and the meeting on 4 December 2015 to respond to the allegations being put to him by Mr Stupar. The evidence also records that Mr Lacase availed himself of the opportunity to respond to the allegations and to defend what had been said about his conduct. (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal [41] Mr Lacase was offered an opportunity to have a support person in attendance at both meetings in which the misconduct allegations were aired and discussed, on 2 and 4 December 2015. The evidence records that on both occasions he chose not to have such a person in attendance. (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [42] Mr Lacase’s dismissal relates to misconduct and not to unsatisfactory performance. Further consideration of this criterion is therefore not required. (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal [43] While noting that Neon Cosmetics reports it employed 55 people at the time of Mr Lacase’s dismissal, of whom 33 were permanent staff 39 , there is no evidence which would suggest that the size of the enterprise was likely to impact on the procedures followed in effecting Mr Lacase’s dismissal. (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal [44] There is no evidence before me that would lead to a finding that Neon Cosmetics’ absence of dedicated human resource management specialists or expertise was likely to impact on the procedures that it followed in effecting the dismissal. (h) any other matters that the FWC considers relevant [45] It is appropriate in the circumstances for me to take into account two matters in relation to this criterion. [46] The first is the construct put forward by Mr Lacase to the effect that he worked overtime hours on various days and then aggregated a claim for overtime payment into a single period. As referred to above, putting forward such matters a potential defence to an allegation of misconduct may well be plausible in the event there is corroborative evidence of the matter or if the evidence is otherwise persuasive over what is being said in the alternative. In the case of Mr Lacase I am not persuaded that there was such a system in place and that it is therefore not a matter which would otherwise ameliorate the finding of misconduct amounting to a valid reason for dismissal set out above. [47] The other matter for consideration is the medical conditions experienced by both Mr Lacase and his wife in late 2015. While he refers to the impact of those circumstances, neither is put forward as an explanation for his conduct. This is not a circumstance in which an applicant might say to the Commission that their medical or emotional state was such that their judgement was clouded. In any event, the evidence compellingly shows Mr Lacase as being someone who not only knowingly undertook the conduct as alleged but, even at the point of the hearing, was not especially of the view that there was anything wrong with it. CONCLUSION AND ORDERS [48] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Mr Lacase, his dismissal was otherwise harsh, unjust or unreasonable. [49] I therefore do not consider that Mr Lacase has been unfairly dismissed. [50] As a result of my finding that Mr Lacase has not been unfairly dismissed, his application will now be dismissed and an Order to that effect will be issued at the same time as this Decision. COMMISSIONER Appearances : Ms A Mistica (paid agent – HR Division) for the Applicant. Ms N Howells-Schramm (VECCI) for the Respondent. Hearing details: 2016. Melbourne: 4 April. 1 Exhibit A2, Witness Statement of Michael Lacase, [10]. 2 Form F2 - Unfair Dismissal Application, Appendix 8. 3 Exhibit R2, Witness Statement of Serge Stupar, [6]; Transcript PN 726–729. 4 Exhibit R2 [7]. 5 Transcript PN 275–276. 6 Exhibit R2 [6]. 7 Ibid [10]. 8 Ibid [11]-[12]. 9 Form F3 - Employer Response Form, Appendix 4A. 10 Exhibit R2 [15]. 11 Ibid [18]. 12 Exhibit R5, Witness Statement of Douglas Griffiths, [5]. 13 Transcript PN 634–636. 14 Ibid PN 699–701. 15 Exhibit R2 [21]; Transcript PN 213. 16 Form F3 - Employer Response Form Appendix 4B. 17 Exhibit R2 [24]. 18 Form F3 - Employer Response Form Appendix 4B. 19 Exhibit R2 [24]. 20 Transcript PN 181–185. 21 Ibid PN 63–64. 22 Exhibit A2 [108]. 23 Transcript PN 59. 24 Ibid PN 101–105. 25 Ibid PN 117–124. 26 Ibid PN 139–144. 27 Ibid PN 387-388. 28 Exhibit R5 Attachment DJG-2. 29 Ibid. 30 Edwards v Giudice [1999] FCA 1836 ; (1999) 94 FCR 561 [6]‒[7]. 31 Budd v Dampier Salt Ltd (2007) 166 IR 407 , at [15]; with reference to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 67 ALJR 170 at 171. 32 Streeter v Telstra Corp Ltd (2008) 170 IR 1. 33 Form F3 - Employer Response Form Appendix 4A. 34 Ibid. 35 Transcript PN 180. 36 Exhibit R4, Witness Statement of John Parker, Attachment JP-1. 37 Transcript PN 344-346, 396, 399, 688. 38 Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41]. 39 See Form F3 - Employer Response Form, item 1.7; Exhibit R1, Respondent’s Outline of Submissions, [26]. 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