Enforcing restraints: at what cost?

Posted on 2 August 201515 May 2018 by PCS Admin

Kathryn Dent, Director and Elizabeth Kenny, Graduate Associate

Restraints of trade are not uncommon features of contracts of employment, particularly those involving mid to senior level managers and executives, but to what extent should your organisation consider trying to enforce any breach or imminent breach and what factors will a court give weight to in its decision (usually whether or not to grant injunctive relief)?

Contractual obligations post-termination, known as “restraints of trade” or “restrictive covenants” are generally used to prevent employees from engaging in a range of activities after their employment comes to an end such as not dealing with or approaching clients, not soliciting clients or employees and not competing with their former employer. Despite the fundamental principle that post-employment restraints are void as against public policy, over the years the law, through the varying Australian jurisdictions, has developed such that restraint clauses may be valid and justified in the circumstances of a particular case provided that the employer can demonstrate how the restraint reasonably protects the legitimate business interests of the employer. Organisations therefore need to be able to articulate to a court, in pursuance of such relief, what the interest is that they are seeking to protect, how the ex-employee is able to cause damage to it and that the way the employer is proposing to prevent this damage is reasonable in all the circumstances.

People must be able to earn a living – you can’t necessarily stop your competition

Non-compete clauses which operate to stop your ex-employees from working for a competitor tend to be the most difficult type of post-employment restraint to enforce. Courts are loathe to uphold these clauses where to do so would impose a significant and detrimental impact on a person’s ability to earn a living and certainly where it is only on the basis of prohibiting employees from working with a rival organisation.

In the case of Marlov Pty Ltd v Murat Col [2009] NSWSC 501, established that to prevent the competition the employee has to have a legitimate interest in business connection or goodwill. It cannot be a “remote or tangential” likelihood of “genuine harm”. There is no protection from mere competition.

On the other hand, a non-compete clause is “a legitimate means by which an employer can prevent an employee from taking unfair advantage of information the employee has gained during the course of his or her employment. It is a means of avoiding the difficulties associated with proving breaches of behavioural restraints — such as an obligation to keep information confidential and not to use it or an obligation not to solicit the clients or customers of the employer for a period of time” (Reed Business Information v Seymour [2010] NSWSC 790). In the case of Pearson v HRX Holdings Pty Ltd [2012] FCAFC 111; the Full Court of the Federal Court upheld an earlier decision in which it was found that a contractual clause which prohibited a company’s founder from working for two years after his resignation was reasonable in order to protect the business – the employee “accepted that he had been a key component” of his ex-employer’s success.

Can clients be stopped from choosing where to direct their custom?

The interest in preserving relationships with repeat or regular clients (as opposed to “one off” clients) has been recognised by the courts on a number of occasions. In Wallis Nominees (Computing) Pty Ltd v Pickett [2012] VSC 82 it was found that the employee was not in a “special category” that justified a restraint clause. The types of factors that were found worthy of a clause restraining an employee from dealing with clients were being a human face of a business, having control over a client’s business or fostering a special relationship. However an injunction was granted in Birdanco Nominees Pty Ltd v Money [2012] VSCA 64 because it was directed at preventing the employee from working for a select set of clients (not all of those of his employer) and it also did not prevent him from practising in his profession as an accountant. An injunction was also granted in OAMPS Gault Armstrong Pty Ltd & Anor v Glover & Anor [2012] NSW SC 1175 to take into account the customer relationships and goodwill that two highly experienced marine insurance brokers would bring to the marine insurance area of any potential employer.

Confidential information – it is legitimate but can you identify it?

The legitimacy of confidential information as an interest to be protected has long been recognised but recent cases have turned on whether an employer can actually identify what that confidential information is and whether the range of confidential information over which protection is sought is too wide.

In Reed Business Information v Seymour [2010] NSWSC 790; advertising rates, website statistics that were not publicly available and brand plans were considered to be confidential, but customer addresses and contact details were not. In coming to this decision the court held that the circumstances a court will consider regarding restraints on disclosure of information include:

“… (a) the extent to which the information is known outside the business; (b) the skill and effort expired to collect the information; (c) the extent to which the information is treated as confidential by the employer; (d) the value of the information to competitors; (e) the ease or difficulty with which the information can be duplicated by others; (f) whether it was made known to the employee that the information was confidential; and (g) whether the usages and practices in the industry support the confidentiality…”

The pivotal nature of being able to identify confidential information was well illustrated in Belleville Properties v Asovale [2014] NSWSC 18 where one of the main reasons the claim for an interim injunction was refused was because the employer could not prove that the confidential information existed and if it did they couldn’t prove why it was confidential. On the other hand, in Wellard Rural Exports Pty Ltd v Robinson III [2013] WASC 89, the employer was granted an injunction in a situation where the former employee denied that he had access to a large volume of confidential information and the information that he did have access to would be outdated by the time he left as the employer was able to pinpoint information which would cause the employer detriment. The employer produced sufficient evidence to show that the employee had access to particular financial data, shipping schedules and price calculating tools that, if used against it, would damage the employer “probably permanently”.

The factors a court will have regard to in determining what is “reasonable”

The reasonableness of a restraint is usually judged at the time the contract is made and primarily relates to the length of the restraint, the geographical area in which the restraint operates and the restrictions that are imposed on the employee. All these should be no wider than necessary to protect the employer who must be able to demonstrate that it has an interest worth protecting including the damage which may be sustained if the restraint was not enforced.

In Properties Northside Pty Ltd (t/as Raine & Horne Manly/Freshwater) v Pickering [2015] NSWSC 310, it was held that it was not open for the employee to challenge a restraint on the ground of unreasonableness when the restraint was the result of a “genuine compromise” between the parties. The original restraint in the former employee’s employment contract had been altered in a deed of settlement when the ex-employee had left the employer and began soliciting clients of the plaintiff through his own real estate agency in breach of the restraint in the deed.

No damages without damage

Since restraints are contractual in nature, an employer must show that they have suffered damage as a result of the breach of a restraint of trade clause. Damages will not be awarded if the breach results in no loss to the employer.

In De Poi Consulting Pty Ltd v Dutton (No 2) [2015], the employee resigned from her employment and began work with a direct competitor the next day. The court read down the non-compete and non-solicitation clauses to two rather than six months (on the basis that they went further than necessary to protect the legitimate business interests) and six months if limited to South Australia as opposed to within 20km of any premises from which it operated. Further, the court rejected the employer’s claim for $185,000 for the loss of 37 files citing that the evidence did not suggest that the employee had undertaken an active managerial or consulting role where she was capable of soliciting clients and the surge in the competitor’s client base was found to be coincidental. Therefore, it was not proven that De Poi was entitled to any measurable loss of damage on account of the breached employment restraint.

Cascading clauses

A cascading clause will not necessarily be unreasonable or uncertain because it contains a considerable amount of covenants with respect to alternative periods and geographical areas. In the case of Bulk Frozen Foods Pty Ltd v Excell [2014] TASSC 58, an employee’s contract stopped him for acting in any of seven specified capacities across fifteen different businesses or activities. Other covenants were also included in this case. Each of the covenants had been stipulated and the court found that there had been a “genuine attempt to define the covenantee’s need for protection” therefore the clause could not be void for uncertainty.

Often cascading clauses are useful in jurisdictions where the courts do not have a discretion (such as in New South Wales) to read down the restraint to make it enforceable.

Myth-busters: debunking popular myths in labour and employment law

Posted on 2 August 201511 May 2018 by PCS Admin

Sina Mostafavi, Senior Associate

1. High income earners are automatically exempt from protection against unfair dismissal

It is a common misconception that employees who receive an annual rate of earnings greater than the high income threshold (currently $136,700) are not able to maintain a claim for unfair dismissal.

In fact, an employee who is “covered” by a modern award or to which an enterprise agreement “applies” (that is, who falls within the definition/classifications set out in said instrument) will be able to maintain an unfair dismissal claim, provided that they meet the other eligibility criteria, including (but not limited to) that:

they are a permanent employee, or a casual engaged on a “regular and systematic” basis;
they have been employed for at least 6 months (for employers with 15 or more employees) or 12 months (for employers with less than 15 employees); and
their employment has been terminated at the employer’s initiative (as opposed to a resignation). A constructive dismissal in this context counts as termination at the “employer’s initiative”.

The above applies even if a modern award or enterprise agreement does not “apply” to a high income employee (such as through a guarantee of annual earnings), meaning that the terms of the relevant instrument do not have effect in relation to that employee. This is because the test in terms of unfair dismissal eligibility is award “coverage”, not “application”.

In summary:

Where an employee is not covered by a modern award or there is no applicable enterprise agreement and they earn over the high income threshold, then they will not be able to maintain an unfair dismissal claim.
Where an employee is covered by a modern award or there is an applicable enterprise agreement (and otherwise meets the criteria for bringing an unfair dismissal claim) then they can maintain an unfair dismissal claim regardless of the level of their income or the operation of a guarantee of annual earnings (for an employee covered by a modern award).

2. You need to give employees three warnings

“I’m entitled to three warnings” is a common catch cry for employees who are being performance managed. This is almost always incorrect.

The only situation in which an employee may have an enforceable right to be provided with three warnings before their employment is terminated is where an express obligation to this effect is enshrined in an employment contract, industrial instrument or binding employer policy. This is an extremely uncommon scenario, yet many employers proceed on the basis that the provision of three warnings are a requirement.

The misconception about the “three warnings rule” arises in part from the unfair dismissal regime, in which the failure to provide appropriate warnings may render a dismissal unfair. In fact, each circumstance is different and must be considered on its own merits in relation to the timing and frequency of warnings. This means sometimes it is appropriate to give one or more warnings (even more than three, if appropriate), and in limited circumstances, a termination can be found to be fair despite the absence of any warnings being provided.

It is important to bear in mind that warnings are not a “silver bullet”, and a termination may be held to be unfair despite three or more warnings having been provided, if the Fair Work Commission finds that the termination was on balance still harsh, unjust or unreasonable.

A rule of thumb is that warnings/further warnings are generally more appropriate where the conduct in question:

is sufficiently serious to warrant a formal sanction;
has not been the subject of a previous warning (or warnings, where appropriate);
can be rectified in a satisfactory timeframe; and
has not led to an irretrievable loss of trust and confidence or amount to serious misconduct.

The key take away is that a determination should always be made on the particular facts, and without regard to an arbitrary (and generally mythical) “three warning rule”.

3. Employees must be offered a support person for “difficult meetings”

During “difficult” employee meetings, most frequently where employees are provided with warning or dismissal letters, employees and employers are often conscious of the need to have a support person present for the former. This derives (in part) from sub- section 387(d) of the Fair Work Act 2009 (Cth) (the “FW Act”), which states that the Fair Work Commission will consider “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal” as a factor in determining “harshness” for the purposes of an unfair dismissal claim.

Looking at the FW Act provision more closely, it’s important to highlight that it does not say that an employee is “entitled” to a support person being present, but rather that an employer should not “unreasonably refuse” to allow such a person to be present. As such, there is no legal obligation under the FW Act for an employer to advise the employee that they can invite a support person to a meeting.

The above notwithstanding, it is good practice (particularly in mitigating exposure to an unfair dismissal claim) to offer an employee the opportunity to bring a support person to disciplinary meetings, but in doing so you should be mindful of the following best practice guidelines:

you should have regard to the purpose and agenda of the meeting in determining whether a support person is appropriate. A simple fact finding meeting, in which an employer has not reached any preliminary or final view as to a set of facts, but is simply providing the employee with an opportunity to provide their version of the facts, does not generally require the employee to be provided with the opportunity to have a support person present. On the other hand, in a “show cause” meeting, or a meeting where the employee is provided with a warning letter, it may be appropriate to provide the employee with this opportunity. It is important in this regard to notify an employee at the first available opportunity of the purpose of a meeting, so that they are also able to turn their mind to the question of whether a support person may be appropriate;
when notifying employees of a meeting (and inviting them to bring a support person) you should advise that, in circumstances where they have been provided with reasonable notice of the meeting (24-48 hours is generally appropriate), that you are unlikely to postpone the meeting on the basis that their support person is unavailable;
you should obtain the name and position of the support person, to ensure that there is no conflict in them being present in the meeting (such as if they are a potential witness to an investigation involving the employee);
you should not be reticent about setting and enforcing clear guidelines about the role of a support person. While a support person can take notes and ask clarifying questions if appropriate, it is not appropriate for a support person to be an advocate, that is, speaking on the employee’s behalf, asking new questions, or stopping the employee from answering particular questions. If this takes place it is appropriate to remind the support person of their role, and call a break in the meeting so that the support person can adjust their approach (and also have any discussion with the employee as required). If the behaviour then continues you can either seek to exclude the support person from the meeting, or offer to postpone it for a day or so to provide the employee with an opportunity to have another support person attend;
where an employee has either utilised a support person (or declined an invitation to bring a support person) this should be duly recorded, and noted on a warning letter as appropriate; and
whether or not an employee brings a support person (and particularly important where they are present) an employer should have an appropriate note-taker present in the meeting for the purposes of clarifying any factual disputes that may arise as to the matters discussed in the meeting. The same principles apply as to the support person, that is, the person should not take active or any substantive role in the meeting, beyond taking notes.

How to warm up cold employees: building engagement for disengaged team members

Posted on 2 August 201511 May 2018 by PCS Admin

Erin Lynch, Senior Associate and David Weiler, Graduate Associate

Cold winter days often highlight one of the greatest threats facing positive, productive organisations all year round: disengagement amongst employees. This article addresses identifying disengagement in your workplace, understanding the costs it has on businesses, ways to prevent it from affecting your high- performing culture and the benefits that come from engagement.

Engagement vs disengagement?

Engaged employees are easy for both managers and colleagues to spot in a workplace. They volunteer for new projects, actively seek out work, support colleagues, encourage a team approach and rarely raise criticisms or concerns without also providing a potential solution. Quite simply, they are passionate about their jobs, are committed to the organisation and display discretionary effort (above and beyond the bare minimum) throughout their work.

Disengaged employees can also be just as easy spot. They are often unenthusiastic about their work, shirk responsibility on projects, isolate themselves from team members, do not understand (or embrace) the company’s direction and lack initiative while complaining about the work they are doing.

When identifying disengagement it is important to distinguish between employee satisfaction and employee engagement. Employee satisfaction represents the extent to which employees are happy or content with their jobs and work environment. While this may be integral to engaging employees, it is not the same thing as engagement.

There are two primary features that, together, comprise employee engagement: engagement with the organisation and engagement with management.

Engagement with the organisation is an indication of how employees feel about senior leadership as well as the organisational levels of trust, fairness, respect and commitment to values. Engagement with management is a more specific measure of how valued employees feel, the quality of feedback and direction and generally the strength of the working relationship between an employee and their direct manager.

What does disengagement cost organisations?

A 2013 Gallup study found that approximately 3 out of 4 Australians are not engaged with their work.¹ The cost of this disengagement to the domestic economy was estimated in the same research to be around $54.8 billion.

As disengagement spreads, retaining the top talent in an organisation becomes more and more difficult. The lost potential not only affects the bottom line of a company, it also hinders it from competing effectively in the marketplace. Engaged employees are more productive which inevitably has a positive impact on a company’s income.

If good workers continually leave a business it becomes increasingly more difficult for employers to guarantee work will be done to the necessary standard and almost certainly will prevent the company from exceeding expectations. The pressure put on remaining talent becomes unsustainable as more and more people leave. This means that one instance of disengagement has the potential to spread exponentially, often catching employers off guard and unprepared to re- engage employees in time. That is why it is crucial for businesses to be equipped to identify the symptoms of disengagement and to understand how best to engage employees.

How to engage employees

Just as disengagement can rapidly infect a culture, engagement too can be contagious. Like many topics concerning culture, the benefits are obvious but the real difficulty comes from trying to achieve it.

While some employers may consider the best way to motivate employees is through remuneration, leading organisations recognise that once an employee is paid around market value, a salary becomes largely ineffective at sparking passion in, and commitment to, one’s work.

Instead, leading organisations use these managerial practices to engage employees:

commendation for a job well done;
regular feedback;
opportunity for growth with new, challenging projects;
mobility across the organisation;
a clear direction for the company; and
encouraging employees to work together.

Performance appraisals, if done properly and regularly, offer businesses an opportunity to use the above methods to engage or re-engage employees. In practice the most successful performance evaluations focus on the future (while also not ignoring the past) by approaching each appraisal as a meaningful part of an employee’s career development. In fact, just recently Accenture announced that it was overhauling its entire performance review structure for nearly 330,000 employees.² The company is moving away from a rigid annual review schedule to one that is done on an ongoing basis relative to the completion of projects.

This change reflects an understanding that in order for evaluations to be effective, they must reflect the needs of both employees and managers.

It is important to note that you can have adequately performing employees who are disengaged as well as disengaged employees who may have once been high performing but have become detached from their role for reasons that are beyond the business’ control. It is therefore useful to appreciate the difference between turnover and unwanted turnover. Facilitating the smooth exit of employees who have not responded to re-engagement strategies can be a positive step in addressing the spread of disengagement.

Warmed up workplaces

When engagement does spread through an organisation, employers will notice an improvement in:

productivity;
talent retention; and
customer loyalty.

Engaged employees are more productive because they put greater focus into their work and their motivation extends further than just individual gain. Productivity is also improved through a decrease in absenteeism compared to that of disengaged employees.

When employees are committed to their jobs for reasons more than just a pay check they are also more likely to stay with that organisation. Encouraging engagement helps insulate employers against losing their best workers and the cycle of disengagement which can quickly follow.

Finally, an engaged workforce leads to stronger customer loyalty through positivity and excellence in service. Clients notice the discretionary effort that passionate and committed employees display and appreciate being the recipient of work done above and beyond what is required. Customers who have had a positive experience with an organisation are often the best marketing a company buy.

Although winter often makes engaging employees a difficult task, it is also an opportunity to re-evaluate how an organisation will address disengagement in the new financial year. As your company gets ready for spring, take stock of your workplace and look for two or three small ways you can make it easier for others to feel engaged with their job; the results will speak volumes.

Key Takeaways

Engagement is passion. Passion is contagious.
Cash is not always king.
Notice disengagement early ; re-engage immediately.

Weighing in on the right to workers’ compensation: the interaction between workers compensation laws and work health and safety laws

Posted on 2 August 201515 May 2018 by PCS Admin

Ned Overand, Senior Associate

In the recent case of BHP Coal Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 113 a worker at BHP Pty Ltd (“BHP”) had his workers’ compensation claim denied, after his employment was terminated because his weight posed a safety risk to himself and other employees.

The facts

Mr Bray commenced employment with BHP as a shift worker in 1994. In 2008 he was promoted to the position of Shift Supervisor and was responsible for supervising up to 30 operators. As part of his role, Mr Bray was required to cover between 25-30 kilometres of the pit. He was also required to, amongst other things, hitch up lighting plants and climb equipment.

For two years prior to the termination of his employment, Mr Bray was absent from work on paid sick leave due to a non work related stress issue. Mr Bray faced a number of barriers as part of his return to work, including:

mobility issues due to his weight (he was 176 centimetres tall and weighed 160 kilograms);
alcohol and other dependency issues; and
anger management and behavioural issues.

To assist Mr Bray with his return to work BHP paid up to $40,000 for Mr Bray to meet with a number of medical practitioners.

In a report dated 9 March 2013, psychologist Dr Sarkar noted that Mr Bray had challenges associated with physical weight gain and mobility and referred him to Dr McCartney, an occupational physician, to determine his suitability to undertake his supervisory duties. Mr Bray saw Dr McCartney over a period of nine months during which Dr McCartney provided various reports to BHP in respect of Mr Bray’s fitness for work and ability to undertake the physical aspects of his role (including kneeling and squatting, walking on uneven ground, climbing up ladders and entering machinery and other vehicles).

Dr McCartney’s final report, dated 17 November 2013, stated that although there had been improvement in terms of Mr Bray’s prior knee and psychological injuries there were on-going concerns about Mr Brays’ ability to perform specific tasks safely, namely:

“tasks that require Mr Bray to undertake repeated kneeling, squatting or climbing ladders pose a significant and foreseeable risk of the aggravation of the underlying degenerative condition affecting his knee;
his frame is likely to have considerable difficulty fitting into a light vehicle without significant and foreseeable impact on safely controlling the vehicle;
Mr Bray’s obesity places him at a significant and foreseeable risk of slips, trips and falls; and
should Mr Bray become incapacitated, he is likely to significantly impact the safety of his colleagues should they attempt to move him”

Following this, BHP met with Mr Bray on 29 January 2014 and offered him two choices:

he enter into a performance plan in respect of his weight loss (given there had been little improvement over an extended period of time); or
BHP and him agree to a mutual separation. Mr Bray rejected the separation offer and requested to return to work.

BHP had a number of concerns associated with Mr Bray’s return to work. In particular Mr Bray’s supervisor, Mr Iliffe, expressed concerns that Mr Bray’s return to work could possibly contravene BHP’s obligations under the Coal Mining Safety and Health Act 1999 (Qld) which contains obligations for workers to ensure they are not exposing themselves or others to risk.

Mr Iliffe discussed these concerns about Mr Bray’s return to work with Mr Milful, the Senior Site Executive, including concerns about Mr Bray’s ability to:

walk on uneven ground;
walk a reasonable distance;
get on a machine; and
act and assist in an emergency situation.

After considering all of the facts, Mr Iliffe and Mr Milful determined that Mr Bray presented an “unacceptable risk to himself and other employees on the site” and as a consequence, a decision was made to terminate his employment.

On 12 February 2014 Mr Iliffe met with Mr Bray and communicated the decision to terminate his employment. On 24 February 2014 Mr Bray lodged an application for compensation with BHP for a psychiatric/psychological injury.

The primary decision

On 20 May 2014, BHP (who is a self insured) rejected the worker’s compensation application made by Mr Bray on the basis that his psychological issue arouse out of reasonable management action taken by BHP and therefore he did not suffer a compensable “injury” under section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘Act’).

Mr Bray sought a review of the decision by the Workers’ Compensation Regulator who set aside the rejection of the claim on the grounds that it objected to the way BHP terminated Mr Bray’s employment by not giving Mr Bray prior notice that they were considering termination of his employment.

BHP appealed this decision to the Queensland Industrial Relations Commission.

The appeal

The key issue for determination was not whether Mr Bray suffered a workplace injury but whether that psychiatric/psychological injury was a compensable injury.

Section 32(5) of the Act provides:

“5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the, Regulator or an insurer in connection with the workers application for compensation” (Our emphasis added).

The decision

Commissioner Knight found that Mr Bray’s psychological injuries were a result of reasonable workplace management action.

The Commissioner held that BHP had provided support to Mr Bray to improve his health over a long period of time and in making the decision to terminate his employment, considered the safety risk to Mr Bray and his colleagues of his return to work.

The Commissioner further stated that the “reality of the situation was that Mr Iliffe was faced with the prospect of returning Mr Bray to work while there remained significant risk factors involved with doing this. Mr Iliffe had been unable to see any progression in Mr Bray’s attempts to improve his health and mostly his weight over a long period of time”.

While the Commissioner acknowledged that there might have been a better way for BHP to give Mr Bray an indication that termination of his employment was a possibility, it was not unreasonable to effect the dismissal when considering the “long history of the matter and prior conversations that had been held in respect of the termination of Mr Bray’s employment”.

What does this mean for employers?

A decision to terminate an employee’s employment can be based on legitimate OH&S concerns: given the obligations of employers under WH&S legislation, employers can, in the right circumstances, defend against claims brought in relation to termination of employment (eg. workers’ compensation, unfair dismissal, adverse action etc.) where it can be established that the reason for the decision was due to safety concerns and their corresponding obligations under WH&S legislation.
Employers should act quickly: given the significant financial costs associated with workers’ compensation claims, if employers are concerned as to the legitimacy of a workers’ compensation claim they should act quickly to challenge and/or input into the investigation of a claim before an insurer makes a determination to accept the claim.
Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.

Key Takeaways

A decision to terminate an employee’s employment can in the right circumstance be defended on legitimate WH&S concerns.
Employers should act quickly if they are concerned as to the legitimacy of a workers’ compensation claim.
Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness
of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.