16 In relation to the question of unfairness, Haylen J found at pars [141] and [142]:
The applicant's case is that the contract with the first respondent was unfair insofar as it failed to treat him as being on secondment to the second respondent, or to treat him as being on leave of absence and thereby maintaining his continuity of employment. If either of these courses had been adopted, he would have been entitled to reasonable notice and redundancy upon termination of his employment in 1999. It is to be remembered that the letter of termination indicated that there was no position for him in Singapore nor in Australia, or in any of the European firms operating under the PriceWaterhouse global network. This decision was said to have been reached "with the knowledge of the Australian firm". The first and second respondents' lack of precision in dealing with transfers and secondments clouds the full import of the arrangements that are made whereby employees perform work in other PriceWaterhouse global entities. So it was in Mr Bastian's case. He was asked to go to Singapore in circumstances where the respondents were keen to pursue an expanding, potential market. They had no other suitable candidate and were not prepared to pay to recruit a star for the job. They knew the task would be initially difficult and that the second in charge was likely to take over the role. Other senior staff from PriceWaterhouse firms were placed there on secondment. It is not surprising that the applicant, in pursuit of his desire to become a partner, was persuaded that the acceptance of this position would permit him to show his true capacity and strengthen his claim for partnership and perhaps work with other entities within the PriceWaterhouse global operation. The late inclusion of the term that there would be no guarantee of a position in Australia at the end of two years was explained away by the desire not to set a precedent for Australians going overseas to work for other PriceWaterhouse entities. At the time that this appointment in Singapore was being finalised, Mr Bastian was entitled to know, in clear and unmistakeable terms, whether or not his employment with the Australian firm was terminated in order for him to be able to make an informed judgment about the value of the offer that was being made to him. He was also entitled to be informed as to whether he was just a "fill in" for two years while they looked for somebody better. If he had been forewarned of these matters, he could have there and then asked for appropriate separation payments or perhaps persisted in seeking different terms to take up the Singapore position. He was denied that opportunity by the way in which the respondents negotiated the package of arrangements for the Singapore position. In addition, if he had been told that his employment in Australia would be terminated and that he would only have two years in Singapore and that it would be the end of his career in PriceWaterhouse, he could easily have chosen to remain in his position in Sydney and not attempt to prove his worth on the international stage. There was no suggestion that there was anything about his performance in his role in the Sydney office of the firm that warranted his termination in the middle of 1997. He could have simply remained in that position. To the contrary, performance assessments made during that period showed him to score highly in terms of competence and technical ability although there were some criticisms of his personal style. The representations that I have found in substance made by Poulter and Watson were designed to assure Mr Bastian that, whatever happened, a position would be found for him when he left the Singapore position. All of these matters helped mask the situation that the respondents now say was brought about by Mr Bastian accepting their offer to move from his Sydney employment.