Brown v Dunn

APPLICANT Mr Rogers of Counsel Shop, Distributive and Allied Employees Association LEGAL REPRESENTATIVES: RESPONDENT Mr Goot of Counsel SOLICITORS Blake Dawson Waldron

JUDGMENT:

• 36 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by the Shop, Distributive and Allied Employees' Association, New South Wales, of a dispute with W D & H O Wills Holdings Ltd re proposed transfer

1 On 29 June 1999, the Shop, Distributive and Allied Employees' Association ("the Union") lodged a notification of dispute, pursuant to s130 of the Industrial Relations Act 1996, ("the Act") with W D & H O Wills Holdings Ltd ("Wills"). The dispute was expressed in short terms as "the company's proposed transfer of business and matters arising from such transfer". 2 The "matters arising from such transfer" were later distilled in the compulsory conference proceedings to a claim by two of the Union's members employed as Field Marketing Representatives, Ms Lisa Campitelli and Mr Marc Robertson, for redundancy benefits said to be denied to them as a result of the business transfer. 3 Proceedings commenced on 1 July 1999, with Mr W Dedula appearing for the notifier Union, Mr J Howard appearing for the respondent employer and Mr N McBride intervening on behalf of the Federated Tobacco and Cigarette Workers Union of Australia. 4 The compulsory conference proceedings were commenced well before the transfer of business, on 3 September, 1999. Further compulsory conferences continued after this date. In a related matter, the Commission, as presently constituted, dealt with an alleged unfair dismissal claim, pursuant to s84 of the Act, filed by the Union on behalf of another Wills employee, Ms Ellen Ford. This application was dealt with on an interlocutory basis in a decision of the Commission on 3 September 1999. (Matter IRC4549 of 1999 - Ford and W D & H O Wills). Although the circumstances giving rise to the s84 application were directly relevant to this dispute, Ms Ford's claim was entirely distinguishable from that to be decided by this decision. Ms Ford's application was subsequently discontinued. 5 My earlier interlocutory decision has little bearing on this dispute notification, save as to serve as a background to some of the common factual circumstances. 6 In the early compulsory conferences, attention focused on whether offers of re-employment would be made to all Field Marketing Representatives and under what terms employees would be re-employed or made redundant. 7 At the date of transfer, 3 September 1999, the employment of Ms Campitelli and Mr Robertson was terminated (as were two other employees) and these proceedings became applications for relief from alleged unfair dismissal. 8 On 29 October 1999, Mr Dedula submitted that his members were constructively dismissed and their dismissals were unlawful. 9 Conciliation conferences were held on this occasion involving Ms Constantine (Solicitor) for the respondent. The matter was adjourned to allow the respondent to consider offers of settlement proposed by the Union. 10 A further conciliation conference, chaired by the Commission, was held on 5 November 1999, following which I formed the view that conciliation had been exhausted. Accordingly, I issued a s135 Certificate of Attempted Conciliation and set the matter for hearing. In the course of issuing directions for the filing and service of affidavit material, I also directed the notifier to file draft orders detailing the relief sought, and noted the following:

I note also during the course of the proceedings that certain arrangements have been put in place with respect to any vacancies that might arise up to and including the period of the hearing and also undertakings given by the company that the two persons subject of this dispute would be advised of such vacancies and be given an opportunity to apply for them. Should the matter be settled to the notifier's satisfaction prior to the hearing, of course the Commission should be advised as soon as practicable so that those directions can be abandoned and the dates for hearing vacated. (T.p25) 11 Further directions were issued on 16 March 2000. At the hearing on 27 and 28 March 2000, Mr Rogers of Counsel appeared for the notifier and Mr Goot of Counsel appeared for the respondent.

THE EVIDENCE 12 The Commission was presented with a voluminous amount of documentary evidence, much of which was duplicated by the parties. Key documents may be classified under the following heads:

1. The sales agreement between Rothmans of Pall Mall (Australia) Limited, W D & H O Wills (Australia) Limited and Imperial Tobacco Australia Limited dated 3 September 1999 ("Confidential Ex'2'").

2. Public announcements of the merger of the companies.

4. Letters of offer to employees stating terms and conditions of employment with Imperial Tobacco.

5. Specific letters addressed to Ms Campitelli and Mr Robertson advising that unless the offers of employment with Imperial are accepted, employment with Wills would cease at 5.00pm on 3 September 1999 (see pp 64 and 65 of Ex'1').

6. Termination of employment letters to Ms Campitelli and Mr Robertson. 7) Applications for alternative employment made by Ms Campitelli and Mr Robertson subsequent to termination of employment. 13 Affidavit and oral evidence was adduced from:

Mr Marc Robertson (former employee) Exhibit '4' Ms Lisa Campitelli (former employee) Exhibit '3' Mr Jeffrey Howard Exhibit 'A' (Human Resources Manager - Operations)

Mr Marc Robertson 14 At the time of termination, 3 September 1999, Mr Robertson was employed as a full time Trade Marketing Representative, having commenced employment on 13 February 1987. His duties included: a) promoting the company's portfolio of tobacco products in the grocery channel; b) supervising a merchandiser who looked after the chain stores; c) controlling budgets and promotional funds; d) taking back damaged and out of date stock from retail outlets; e) merchandising retail outlets including the organisation and display of cigarette stands; f) paying display payments to retailers; g) ensuring that these payments provided value for money; h) ensuring that the retailers stocked all company products; i) the changing and updating of advertising material at the retail outlets. 15 He gave evidence that at a meeting on 6 May 1999 called to announce the merger of Rothmans and W D & H O Wills, he was told the sales staff would be retained - employees would be selected on merit; those not selected would be offered redundancy. 16 In late May, he participated in an incentive programme. 17 On 3 June, Mr Robertson said that a meeting of all New South Wales staff was told that there were no positions in the merged entity - all employees would be offered employment with Imperial. A failure to accept the employment would be deemed a resignation at the date of merger. 18 He gave evidence that on 5 August, Imperial published a list of all employees who had not signed a letter of transfer. His name was on the list. 19 He chose not to accept employment with Imperial because no one could give him "a detailed contract of employment" (Tp78). He later acknowledged receiving a contract of employment (possibly dated 27 July). It did not, however, contain all the details of employment. In cross examination, Mr Robertson said he didn't know details of long service leave, annual leave and retrenchment. He acknowledged that he knew the Wills retrenchment policy was the same as Imperial, but no one had given it to him "on paper". He was shown p54 of Ex'1' which was a letter to him from Mr Howard, in which he is told that Imperial's conditions would be no less favourable than when he started and that he could access the company policies on computer. He said he had no reason to think the policies would not apply to him, and he didn't access the computer to check. He was shown a further letter (although he didn't remember it) from Imperial (p48 of Ex'1') indicating that redundancy standards would be those applicable at Wills. He said, however, that he wanted a piece of paper saying what he was entitled to in "black and white" (Tp82). He was also aware that continuity of service would be maintained; but he did not know "specifically" what his entitlements were. 20 He accepted that the hotline service advised that an individual breakdown of redundancy benefits was available to all employees upon request. In further evidence, he accepted not asking management about his entitlements. However, he acknowledged that his pay advices disclosed accumulated entries for long service leave and annual leave. 21 In re-examination, Mr Robertson said he didn't ask anyone in management about his entitlements, believing it was being handled through the Union. His other reason for not transferring to Imperial was his belief that he would be victimised for not signing the letter of offer and his name being published on a list of employees who hadn't signed. He gave evidence that he did not raise his concerns at the time, or seek assurances that he would not be victimised. 22 He also confirmed the amount of his earnings since December 1999, working for Gap Communications and Mercury Tobacco Supplies.

Ms Lisa Campitelli 23 Employed by W D & H O Wills from 1 February 1987, Ms Campitelli was a Trade Marketing Representative at the time of termination. Her duties included: a) servicing a customer base of 260-300 clients in the convenience channel, which encompassed service stations, newsagents, mixed businesses and takeaway food stores; b) promoting the companies(sic) range of products; c) invoicing stock and receiving money for the sale of new brands of cigarettes to clients; d) maintaining and updating signage and cigarette stands at clients premises, including the rotation and filling of product lines; e) monitoring the range of company products at company sites were filled for the purpose of payments to the client; f) establish accounts for new clients; g) register and handle client complaints; h) exchange damaged stock or arrange stock credit; i) use laptop computer to record visits to client sites, time of visits and to transmit and download information by modem to the company.

24 On 6 May 1999, Ms Campitelli attended a meeting of all company sales representatives at which the merger of Wills and Rothmans was announced. The meeting was told that positions would be determined on merit and if a position was "not granted, then redundancy would be available". This was confirmed on the Merger Hotline dated 25 May 1999. 25 On 27 May 1999, the following question and answer was put on the merger hotline: Q. If I decline an offer with Imperial and am not selected for the merged company, will I still get a redundancy? A. If you are not offered a position with the new merged company and you decline an offer with Imperial, you will be eligible for redundancy. However, if you are offered a suitable position with the new merged company and you decline this offer, you will not be eligible for redundancy. 26 Ms Campitelli said that this position changed on 3 June 1999. All employees were offered similar positions with Imperial and if the offer wasn't taken up, the employee would "be deemed to have resigned". 27 On 22 July 1999, Ms Campitelli received a contract of employment for a position with Imperial. On 5 August a list of employees who had not signed with Imperial was published. 28 On 30 August 1999, Ms Campitelli received a letter advising that her employment with Wills would cease at 5.00pm on 3 September 1999. 29 In oral evidence, Ms Campitelli said the reason she did not take up employment with Imperial was that Imperial could not provide details of what her terms and conditions would be, and Wills could not provide her existing contract of employment (Tp43). 30 She was also concerned that she would not be treated fairly, as her name had been published as someone who had not signed up to transfer. She said she regularly raised these concerns with her manager, Nev Vellas. 31 In cross examination, Ms Campitelli was asked about her belief as to what was being offered by Imperial. She accepted that her salary would be the same; she had doubts about the redundancy package and other conditions of employment. She said she had nothing in writing and Wills could not provide her with her existing contract of employment. In further questioning, Ms Campitelli accepted that she knew her annual leave and long service leave entitlements, and that sick leave was unlimited. She said she made no contact with management after 18 June in order to obtain further information. 32 Ms Campitelli had received Imperial's letter of offer. She was concerned, however, that the redundancy package might be different to that at Wills. She added that she was unsure how secure the new employment would be (although this was the first occasion these concerns were raised). She further acknowledged that as at 3 September 1999 she did not inquire, as to whether any of the terms and conditions of the Imperial offer had changed. Ms Campitelli was taken to the merger hotline question, which described the position if the new employer, Imperial, found it necessary to make further redundancies. The answer was that the Wills package would apply. She said, however, there was no guarantee, in writing, from Imperial that this was the case. 33 She maintained her claim that the contract was not specific and she didn't believe the questions and answers because her employment at the time was with Wills, not Imperial (Tp56). Ms Campitelli conceded she did not ask anyone in management a specific question about whether Wills had changed its redundancy package. 34 Ms Campitelli gave evidence that she was uncertain as to her future with Imperial as it would be operating with the same number of employees with 17% of the market. 35 Ms Campitelli was asked about the requirements placed on the merger by the Australian Competition and Consumer Commission ("ACCC"). This changed the circumstances and she was concerned that she didn't know if what the company told her was "the truth or not" (Tp61). She referred to the earlier Commission proceedings and not knowing what the outcome might be. 36 In re-examination, Ms Campitelli said she had not seen the Imperial Human Resources Policies, but accepted they were "similar" to the Wills' Policies. These could be accessed on the data base. She conceded that she had not asked about the Imperial policies, through Mr Michael Reid, because they had not been finalised and Mr Reid was "not the most approachable man" (Tp70), Ms Campitelli denied she didn't ask about the policies because she already knew what they were, and wasn't troubled by them. 37 Mr Jeffrey Philip Howard is the Human Resources Manager - Operations, employed by W D & H O Wills (Aust) Ltd. He provided affidavit and oral evidence. Mr Howard's affidavit is largely uncontested and recounts the factual chronology of events which I shall later summarise. 38 In Ex'A', Mr Howard describes the process by which the merger of Wills and Rothmans occurred and the sale of a number of its tobacco brands to Imperial. 39 In paragraphs 13-21 of Ex'A', Mr Howard details the extent of communications to employees - as to the nature of the merger and its impact. 40 In paragraphs 22-25 he describes the offers of employment to Ms Campitelli and Mr Robertson and their subsequent terminations of employment. 41 In response to Ms Campitelli's statement, Mr Howard said that the change in the process from merit selection was a result of a requirement of the ACCC for Wills to sell 17% of its market share to a third party. This position was clarified in the Merger Hotline of 26 May 1999. In response to statements of both Ms Campitelli and Mr Robertson, Mr Howard said that to the best of his knowledge Wills managers were never told that, if employees did not sign a letter of intent, they would not receive a contract of employment from Imperial. 42 In cross examination, Mr Howard confirmed that the only letters sent to Ms Campitelli and Mr Robertson were their letters of offer dated 21 July 1999. He had been told by Mr Trent Russell (from Imperial) such a letter was sent to all employees. 43 Mr Howard confirmed that during June 1999, a selection based on merit was changed as none of the Field Marketing employees were to be offered continuing employment with Rothmans. The actual sales agreement was not concluded until 3 September 1999. It was his understanding that for Imperial to have a viable third force in the market, it needed a field force from Day 1. 44 Mr Howard understood that there was a transfer or transmission of business from Wills to Imperial and this was reflected in the Merger Hotline questions and answers (Ex'1' 24-25). He said it was his understanding that if suitable alternative employment was offered, a redundancy or severance payment was not required. 45 Ms Howard denied that there was a course of action engaged upon to "maintain a fiction" or to "create the impression" that there was no dismissal, but a natural progression to Imperial. He denied trying to create an impression that Ms Campitelli and Mr Robertson were "stepping out of line" by not accepting employment with Imperial. 46 Mr Howard was cross examined as to the notion of the employees being "deemed to have resigned". He did not agree with Mr Rogers that this term was misleading. 47 He further said there was no prospect between June and September 1999, that Mr Robertson and Ms Campitelli would have secured employment with the merged entity, as there were no positions available.

48 Counsel for the notifier sought to admit evidence from Ms Ellen Ford. After consideration of the objection to all of Ms Ford's evidence, the Commission ruled that her position, as disclosed in the interlocutory decision earlier referred to, was entirely distinguishable from the claims advanced in this case. Ms Ford's evidence, therefore, would not be useful and I declined to admit it.

For the notifier, Mr Rogers ' submissions may be summarised as follows:

1. The termination of employment of Mr Robertson and Ms Campitelli was at the instigation of the employer. The notion that the employees resigned is a "fiction".

2. The dismissals were "harsh, unreasonable and unjust" - notwithstanding that Imperial had offered alternative employment .

3. In deciding the unfairness of the dismissal, one needs to look at the redundancy situation and consider:

4. The offer of alternative employment only arises in respect to assessing the nature of quantum of the remedy.

6. The selection process was arbitrary and unfair. There was no regard paid to length of service, age capacity, competence or need.

7. On a number of occasions, from 6 May to 2 June, employees were informed that selection would be based on merit. The three reasons given for the change from merit selection were false or incorrect.

The employees were entitled to know the precise terms of their employment with Imperial. No one could tell them in "black and white".

The employer was engaged in a process of "deceit" and dealt with employees "dishonestly". Having advised employees they would be retained on a merit selection basis, the employer announced on 3 June that no one would be retained. The employer then deemed employees, who had not taken up employment with Imperial, as having resigned.

The change from merit selection was designed to deprive employees of a legitimate redundancy payment.

The employees did nothing which would exclude them from the remedies available for an unfair dismissal. The offer of alternative employment was defective in that: a) Wills could not identify the terms of employment with Imperial; b) the offer by Imperial fell a long way short of providing identical terms and conditions as a minimum;

c) Imperial's letter of offer speaks of "similar" conditions;

d) Imperial's conditions may be reviewed from time to time; e) the employees were entitled to know, in precise detail, what the Imperial terms and conditions would be.

The publication of the names of persons who had not signed the letter of offer was inflammatory and led to a belief that the employer was duplicitous;

Both employees should be reinstated with back pay or, alternatively, receive the maximum compensation of twenty-six weeks' pay. 49 For the respondent, Mr Goot put the following:

The claim now made by the Union was never put during the course of negotiations during 1999. The sales process was far removed from an unfair dismissal claim.

The Commission should consider the offer of alternative employment and the terms of such offer. It is a nonsense to suggest that it be left out of the factual matrix of the case.

All employees were offered employment with full continuity of service and on their existing terms and conditions.

Guarantees of future employment could not be reasonably given, just as there were no guarantees from Wills.

Discussion of a fair selection process is irrelevant, as there was no selection process.

It was never put to Mr Howard that (a) the reasons for the change in process were untrue; or (b) that the employer was engaged in a process of deceit; or (c) that the process was not a transmission of business (see Browne v Dunn (1893) 6 R 67).

The process was unquestionably a transmission of business, or part of a business.

The Merger Hotline was a means of keeping employees informed and despite some answers which required correction, there can be no doubt the employees knew what the options and ramifications were.

As early as 2 June, employees were told as to the terms of conditions at Imperial: a) they would retain their current salary;

b) superannuation would be continued; c) continuity of employment would apply;

d) letter from Kate Dickerson invites further inquiry and no inquiry is made;

f) Employees were invited to access the data base to find out the Human Resources Policy and Procedures;

g) the redundancy policy was the same as applied at Wills. 10. There was no attempt made by the two employees to contact Mr Howard, Ms Dickenson or Mr Reid (Imperial) and no evidence the Union asked for such information.

Neither employee could properly claim they didn't know what was being offered by Imperial. The process was reasonable and entirely acceptable.

There was no reasonable basis for rejecting Imperial's offer and they were free to do so. There is no evidence of the employees being misled.

The employer's obligations were completely and absolutely satisfied.

There was no rush which prejudiced the employees. They received letters on 21 July and sat on their hands until 3 September.

The allegation of victimisation should be rejected. It was never raised with management, never suggested by the Union, nor put to the Union by Mr Robertson and Ms Campitelli.

There was no sound basis for the fear of victimisation. All that was published was a factual list of employees who had not signed the letter of offer.

Chronology of Events 50 In my view it is not essential to find that the sale process was a transfer of business in the classic and conventional sense. Certainly, this was the submission of the respondent. The Union dispute notification referred to it as a transfer of business and there was no evidence that the Union protested or rejected the employer's contention as frequently expressed in written communications to the employees. 51 Mr Rogers, however, relied on cl 4.9 of the Asset Sales Agreement, which I reproduce: No transfer of business or goodwill The parties acknowledge that it is not intended that the transfer of the Sale Assets, the Brand Records and the Business Records pursuant to this agreement would constitute a transfer of any business goodwill or goodwill of the Vendors attached to those Sale Assets, Brand Records and Business Records. 52 He submitted that this provision, correctly interpreted, proved conclusively that there was no transfer of business. With respect, I cannot agree. The correct construction of this provision will be arrived at by reading it in the context of the whole of the document. When viewed as a whole and applying the conventional tests of construction, the Sales Agreement can only be described as an agreement effecting the transfer of business. Without compromising the confidentiality of the agreement, it is sufficient to observe, that it is littered with references to "transfer" and "transferring employees". For example, in the definitions is to be found: Transferring Employees means those of the Employees who accept Imperial (Aus)'s offer of employment described in clause 8.1, which Employees will be identified in a list provided by Imperial (Aus) to the Vendors within 5 Business Days following completion. 53 In any event, cl 4.9 is a provision of limitation. It does not describe the full extent of the sale. The limitation of goodwill is particularised to sale assets, branch records and business records. There were many other ingredients of the sale - not least of which was the transfer of the employees. 54 Accordingly, I propose to adopt the description of the sale process as a transfer of business. 55 In order to set the contextual background to this dispute, it is necessary to outline in some detail, the nature and effect of the transfer of business between the merged W D & H O Wills (Aust) Ltd ("Wills"), Rothmans Holdings Ltd ("Rothmans") and Imperial Tobacco ("Imperial"). 56 Necessarily relevant is the process of consultation with the employees and what options were available to them.

On 12 January, British American Tobacco, the parent of Wills, announces a world-wide merger with Rothmans.

On 6 May, Wills announces a local merger with Rothmans. Employees are advised that positions with the merged entity will be selected on merit and where employees are not selected, the Wills redundancy package will apply.

On 19 May, Rothmans and Wills announce a 17% market share sale to Imperial.

A Merger Hotline operates over a number of weeks in May and June, 1999.

On 25 May the merged company indicates that there will be no voluntary redundancies, jobs will be filled on merit and redundancies would not occur until September.

A question and answer document and facts sheet were provided to each employee in the field force.

On the Merger Hotline dated 26 May, employees are advised that no redundancy payment would be paid if the employee opts to transfer to Imperial, as continuity of service is preserved.

On 27 May, employees are invited to find out their personal entitlements to redundancy.

On 28 May employees are advised that if no job is available with the merged entity, and they decline an offer with Imperial, no redundancy will apply.

In the week of 31 May, employees are invited to obtain a copy of their current terms and conditions and entitlements under the redundancy package.

On 2 June, Imperial offers employment to employees, (including Ms Campitelli and Mr Robertson) on " terms and conditions no less favourable " than those currently enjoyed with Wills. Service with Wills is to count as service with the new employer.

On 3 June, employees are informed that no positions exist with the merged company and all field employees will be offered employment with Imperial.

On 8 June, Imperial announces Australian Competition and Consumer Commission approval of the sale of Wills and Rothmans brands to Imperial and the recruitment of the sales force from the current Wills field force.

On 10 June, Wills advises that all Field Marketing Representatives are to be offered " their current Wills role with Imperial and Imperial have committed to maintaining existing salary and conditions and will recognise all previous Wills service" .

On 24 June, employees are requested to confirm their intention to transfer to Imperial by 2 July.

On 2 July, employees are advised that if they do not sign the letter of intent they will not receive offers of employment from Imperial.

Imperial makes offers of employment to Ms Campitelli and Mr Robertson on 21 July.

On 5 August, the company publishes a list of names of employees who have not signed letters of intent.

On 23 August, Wills becomes a fully owned subsidiary of Rothmans.

On 30 August, Wills advised Ms Campietelli and Mr Robertson that their employment will cease on 3 September and no redundancy benefits will apply.

On 2 September, Rothmans changes its name to British American Tobacco (Australasia) Limited ("BATA").

Mr Robertson and Ms Campitelli are terminated on 3 September 1999.

The Redundancy Package 57 In comparison to the minimum redundancy standards of this Commission (see Re Application for Redundancy Award 53 IR 419) and industry standards generally, there can be little doubt that the Wills redundancy package is at the higher range of benefits. As it is pivotal to the employees' motivations in this case, it is appropriate for me to highlight its main features:

• 4 weeks pay per year of service (calculated at normal base rate) - a one off payment of $1500 for cigarette ration acquittal - 5 weeks formal notice of redundancy. - pro rata long service leave for employees with less than 10 years service, plus 17½%.

Relevant Principles 58 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Newcastle Herald (Matter IRC4065 of 1998) and Speers & St George Private Hospital and Medical Centre (Matter IRC2563 of 1999), I discussed the obligations upon employers in respect to their employees in circumstances where redundancies become necessary and employees are to be selected for redundancy. In doing so, I referred to a number of authorities which have considered these obligations. It is opportune, particularly in light of the pleadings in this case, to refer, in some detail, to the relevant authorities. 59 A convenient starting point is the Termination, Change and Redundancy Case of the Australian Conciliation and Arbitration Commission in 1984 (8 IR 34) which, inter alia, discussed the notion of consultation. At p63 the Full Bench said: Nevertheless we believe that it is of fundamental importance to involve employees and their representatives in the problems of redundancy as soon as a firm decision has been taken that retrenchments may be necessary, and we are prepared to make an award provision to that effect. 60 It is also appropriate to cite a number of seminal test cases in the New South Wales jurisdiction, which include Shop Distributive & Allied Employees' Assn (NSW) & Ors v Countdown, 7 IR 273; Shop Distributive and Allied Employees' Association (NSW) v Myer (NSW) Ltd (1983) 7 IR 300; Re Clerks (State) Award (1987), 21 IR 29 and Re Application for Redundancy Awards, 53 IR 419. This latter case consolidated a now generally accepted set of award provisions going to the duties and obligations on employers and which must now be inserted into all New South Wales award under s19 of the Act and following the Principles for Review of Awards State Decision (1998) 85 IR 38. The clause is to be found at p445-446 of 53 IR and is reproduced below: (i) Employers duty to notify: (a) Where an employer has made a definite decision to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the Union to which the(sic) belong. (b) "Significant effects" include termination of employment, major changes in the composition, operation or size of the employers workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect. (ii) Employer's duty to discuss change: (a) The employer shall discuss with the employees affected and the Union to which they belong, inter alia, the introduction of the changes referred to in subclause (1), Employers duty to notify, of this clause, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by employees and/or the Union in relation to the changes. (b) The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause (i) of this clause. (c) For the purpose of such discussion, the employer shall provide to the employees concerned and the Union to which they belong all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer. (iii) Discussions before terminations: (a) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone pursuant to paragraph (a) of subclause (i), Employers Duty to notify, of Clause 1, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the Union to which they belong. (b) The discussions shall take place as soon as practicable after the employer has made a definite decision which will invoke the provision of paragraph (a) of this subclause and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

(c) For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the Union to which they belong, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer. (d) For provisions relating to termination of employment refer to subclause (v), Termination of Employment, of this clause. 61 Also apposite are the comments of Wilson J of the High Court in Federated Clerks Union & Anor v Victorian Employers Federation, 154 CLR 472 at 502: Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity. 62 Reference is also made to the succinct comments of the Full Bench of the Australian Industrial Relations Commission in Windsor Smith & Others, Giudice P, Polites SDP and Gay C, 13 July 1998, Print Q3462 at pp11 and 12: We add that in ordinary circumstances it is reasonable for an employer who is contemplating redundancies to discuss the matter with the employees, and their representatives should the employees so desire, to enable alternatives to be canvassed and to allow employees who are in peril of losing their employment to adjust their affairs accordingly. 63 In Outboard World v Muir, 51 IR 167 at 182, a Full Commission of the Industrial Relations Commission of New South Wales described the unfairness which might arise in a redundancy situation: While in the ordinary case it may be that a redundancy genuinely occurring would not come within the parameters of Part 8, Unfair Dismissals, it takes little imagination to apprehend a situation which is both a redundancy and a harsh, unreasonable or unjust dismissal. For example, it may be that in selecting employees for redundancy an employer unilaterally decides to terminate an employee of long and exemplary service over another employee. The facts of the case may demonstrate both redundancy of one position but unfairness as against the employee selected. Once that position is accepted then it follows that an employee is not necessarily incapable of suffering an "unfair" dismissal in the context of a position becoming redundant. Other examples come readily to mind. 64 The general question posed by Lee J, of the Industrial Relations Court of Australia in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch, 63 IR 1 at p7, is also apposite: The question in this case is whether the employer gave due regard to all reasonable and fair considerations the employee was entitled to expect as part of the employer/employee relationship that existed between them prior to termination of the employee's services. That is to say, acting fairly and having due regard to the interests of the employee did the employer do that which could be reasonably expected of it in the circumstances to avoid the termination operating harshly, unjustly or unreasonably?

65 I note also the discussion of these principles by Murphy C in Pickering & Ors v Skilled Communications Pty Ltd (unreported) 29 March 2000. 66 A body of well settled contemporary industrial principles has developed from these, and many other, authorities. They may be summarised as follows. In redundancy situations an employer is obliged to:

give reasonable notice to employees and/or their Unions;

adequately consult with employees and/or their Unions on the impact of the proposed changes;

explore genuine alternative options for redundancy, such as redeployment or relocation;

ensure such options are fairly offered to the affected employees;

provide reasonable standards of redundancy benefits;

provide appropriate ancillary services, such as time off to seek alternative work, retraining opportunities, outplacement services or financial planning;

ensure employees nominated for redundancy are fairly selected on an objective and unbiased basis. 67 Notwithstanding the employer's obligations, there are certain reciprocal obligations on employees when confronted with genuine efforts by the employer to minimise the impact of potential redundancy. These obligations include:

a) a willingness to participate in consultation with the employer;

b) genuinely participating in exploring alternatives to redundancy;

c) not unreasonably refusing to accept retraining, alternative employment, redeployment or relocation. 68 A number of decisions of the Australian Industrial Relations Commission are pertinent to the employees' obligations. In Clothing & Allied Trades Union of Australia v Algray Pty Ltd, 31 IR 365, Merriman C said: In considering all of the aspects of these two claims, the company seeks relief on the basis that neither former employee was actively seeking a commitment to employment or cooperating with the company as to future employment. The company's contention in this matter is supported by a decision of the Industrial Commission of SA in the matter of the Milk Processing and Cheese Manufacturing Etc (Appeal) case. In its decision the Full Commission said: Like the Australian Commission, we agree that, if employment of a suitable nature and returning a comparable remuneration can no longer be found or is not arranged for by the employer, then it is appropriate to require special provision to be made. It goes without saying that any employee who unreasonably either declines such employment or fails to cooperate in mitigating any disadvantage in an appropriate manner can scarcely be heard to seek the same special treatment as those who do. I certainly support this decision that in a redundancy situation where the employer is genuinely attempting to find alternative employment an employee should cooperate in every way to accommodate the alternative employment efforts. 69 And in Steppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union, 86 IR 337, an appeal bench of the Australian Industrial Relations Commission discussed severance payments in the context of a transmission of business: We should indicate that we are satisfied on what we have read in the transcript and what we have been told on the appeal that there was a transmission of business from Beaufort to Carlton. There was a conveyance as a going concern of the business of the Beaufort Hotel from the former to the latter. In this connection, it is important to draw attention to some parts of the decision in the Termination Change and Redundancy Case (1984) 8 IR 34 (the TCR case). The Full Bench said, after considering a number of arguments as to the purpose of an award of severance pay (at 73): We prefer the view that the payment of severance pay is justifiable as compensation for non-transferable credits and the inconvenience and hardship imposed on employees. We think it important in the context of the current appeal that in the original TCR case the Bench justified the awarding of severance pay by reference to the inability of employees to have credits based on length of service transferred to a new employer. Secondly, we draw attention to a passage in the report where the Full Bench said (at 75): However, we would make it clear we do not envisage severance payments being made in cases of succession, assignment or transmission of a business. In normal circumstances if the Commission is satisfied that credits based on length of service have been transferred to the transmittee or the acquirer of a business, it would be inappropriate to require that employees who transfer their employment from the vendor to the purchaser should also receive severance payments. We note that in relation to sick leave, annual leave, severance pay and long service leave, the relevant award and long service leave legislation provide for continuity of service on transmission of a business. The relevant clauses in the award are cl 26(c) in relation to sick leave, cl 25(d) in relation to annual leave, cl 50(i) in relation to severance pay. The long service leave provisions are contained in the Long Service Leave Act 1997 (NT) which is extracted, relevantly, in Ex B21 before the Commissioner. We should also point out that we were informed that because of the common rule application of the award, Carlton is bound by it. It appears to us that the relevant provisions will apply to give the employees who took up employment with Carlton an entitlement to credits based on years of service with their previous employer, namely Beaufort. It also appears to be clear that the employees concerned who have been offered and accepted employment with Carlton are in acceptable, alternative employment. They are employed under the same award and on the same premises.

See also Australasian Meat Industry Employees Union v South Australia , 89 IR 139. 70 As I said in Speer v St George Private Hospital: It is well held that, in circumstances of redundancy, offers of alternative employment must be reasonable and practical. Nevertheless, as discussed in Clothing Trades Union of Australia v Hot Tuna Pty Ltd, even if the alternative employment has unacceptable features to it, it is not necessarily valid or reasonable for the employee to reject it. (p13).

71 The principles herein discussed will become particularly pertinent to my later consideration of whether or not the employees have been unfairly dismissed.

Termination of Employment 72 There is no dispute that the termination of employment was effected by the terms of the letters to Mr Robertson and Ms Campitelli (Ex'1' documents 23 and 24) which I reproduce in full: Re Sale of Brands to Imperial As you know, associated with the merger between W.D. & H.O. Wills Holdings Limited and Rothmans Holdings Limited, a number of Wills' brands are being sold to Imperial Tobacco Australia Limited. As part of the arrangement, Imperial will retain the Wills' Trade Field Force. We understand that you have not yet accepted the offer of employment that Imperial has made to you. This offer of employment made by Imperial is on terms and conditions that are no less favourable than the current terms of your employment with Wills, and Imperial will recognise your service with Wills as it is service with Imperial. We confirm that since Wills has obtained for you this offer of ongoing employment with Imperial, Wills will not be paying you any redundancy benefits should you choose not to accept the employment that Imperial has offered you. If you decide not to accept employment with Imperial, we confirm that your employment with Wills will cease at 5.00pm on 3 September, 1999. Upon cessation of your employment with Wills, you will be paid out your period of notice plus your accrued leave entitlements. Please carefully consider the matters outlined in this letter. If you have any questions, please feel free to contact Jeff Howard on (02) 9370 1777. 73 As earlier discussed, the merger of Wills and Rothmans and sale to Imperial is, in my opinion, appropriately described as a transfer of business. The Commission, as presently constituted, has had recent occasion to consider the termination of employment in the context of a transfer of business. In New South Wales Independent Education Union v Allambia Pty Ltd, after referring to North Western Health Care Network v Health Services Union of Australia, 164 ALR 147 and Finance Sector of Australia v PP Consultants Pty Ltd [1999] FCA 1251, I said: These authorities confirm that strict legal tests as to the successor arrangements between two employers should not stand in the way of a logical focus on the work performed. This is necessary to ascertain the extent of the similarity of the work and whether there has been any material change or alteration. 74 Thus, the employees' termination described as "ceasing employment" occurred in the context of the transfer of business on 3 September 1999. 75 I note that in these circumstances the accrued employees' entitlements are protected by s101 of the Act. It is plainly obvious, from the undisputed evidence, that the employer satisfied all the requirements of s101 of the Act. I need take this matter no further. 76 The words used in the letters of termination to define the actual position was to describe the termination as the employee having "deemed to resign". This was the expression used by the applicants, in Mr Howard's evidence and also recorded in the Merger Hotline of 21 June 1999 (p33 of Ex'1'). 77 In my view, there is a conceptual dilemma with describing this termination of employment as a "deemed resignation". I am not convinced that a resignation can be "deemed" by the employer to have occurred. 78 "Resignation" is defined in the Macquarie Dictionary as: the formal statement, document, etc. stating that one resigns an office, position etc.

and the Concise Oxford Dictionary defines resignation as: Resigning esp. of an office, document conveying it (give, send in, tender one's resignation) 79 By using the adjective "deemed" the employer "considered, believed or judged" (Shorter Oxford Dictionary) the employee to have resigned. 80 Logically, it seems to me, a resignation, by definition, and as commonly understood, requires a deliberate act by the employee of submitting a resignation, either verbally or in writing. In the absence of such act, it seems to me, not open for an employer to deem the employee has resigned. 81 The refusal of the employees to comply with the employer's request to transfer to Imperial is more akin to an "abandonment of employment", although in stricto sensu, I would prefer to define the termination as a refusal to accept a reasonable offer of alternative employment. 82 On the other hand, little turns on whether it be a resignation or some other manifestation of termination. In my view, what is material is whether the termination of employment was at the initiative of the employer or the employee. See Alison v Bega Valley Council (1995) 63 IR 68, Britton v Riverstone Public School, unreported Schmidt J, Sams DP and McLeay C, Matter IRC5504 of 1999, 6 May 1999, and Bates and Gundagai District Services Club, unreported, Walton VP, Sams DP, Redman C, 14 April 2000. 83 Approaching the issue from a slightly different perspective arrives at a similar conclusion. Was there a dismissal? A dismissal will occur when there is found to be a "termination of services by the employer without the employee's consent". See Pacific Waste Management Pty Ltd v Saley, 51 IR 339 at 342, Smith v Director-General of School Education (1993) 51 IR 204 and Clark v Pittwater RSL Club Pty Ltd (1998) 84 IR 309 at 311-312. 84 On either test, I have no doubt as to the correct approach in resolving this dispute. The refusal to accept a reasonable offer of alternative employment is analogous to the termination of employment at the initiative of the employee, thus not constituting a dismissal by the employer. 85 This conclusion might well be said to end the matter for it is axiomatic that if there was no dismissal, there is no jurisdiction for the Commission to deal with an unfair dismissal application. I could dismiss this matter on these grounds alone. 86 However, this matter is brought pursuant to s130, and not by way of application under Pt 6 ch 2 of the Act. A finding as to want of jurisdiction is no doubt open to the Commission. However, it seems the most convenient way of disposing of this dispute is to decline to make any orders as to reinstatement or compensation for alleged unfair dismissal, pursuant to the Commission's discretionary powers under s136 of the Act. 87 In deference to the comprehensive submissions of both Counsel and having regard to the manner in which this case was argued, I intend to further elaborate on my reasons for refusing the Union's claims.

Reasons for Refusing Alternative Employment 88 Both Ms Campitelli and Mr Robertson gave evidence that there were two reasons why they did not accept the offer of employment with Imperial. As I apprehend it, the primary reason was that they were not certain of their employment conditions with Imperial and didn't receive the details in precise, written terms. 89 A secondary reason was that Mr Robertson believed he would be "victimised" and Ms Campitelli believed she would be "treated unfairly", because their names had been published on 5 August in a list of employees who refused to sign the letter of intent. 90 Ms Campitelli raised a further reason during her oral evidence. She said she was concerned as to her future security of employment with Imperial. I can readily deal with this matter. Impliedly from this concern is that retaining a job on similar conditions, including a generous redundancy scheme, was less secure than no job and no redundancy scheme. 91 The logic of this conclusion escapes me completely. It is a nonsense. In any event this matter was injected late in Ms Campitelli's evidence - almost as an afterthought. There is no evidence that it was a concern raised by her at any of the relevant times before this case was well under way. I therefore reject it. 92 I turn then to consider in some detail the primary and secondary reasons advanced by both applicants and whether their concerns had any basis in fact and were reasonably open to them. 93 By and large, the factual position is not disputed. The uncontested evidence is that Imperial was offering employment to former employees of Wills on terms "similar" or "no less favourable than" their existing entitlements. These conditions included a redundancy package which can only be described as generous. Was it reasonable for Ms Campitelli and Mr Robertson to refuse to accept the offers of alternate employment? 94 In considering this question, the Commission is mindful of, and takes into account, the following circumstances:

1. Both employees had over twelve years' service with Wills. Both were long serving employees. From their demeanour and evidence in the witness box, I have no doubt they are intelligent, articulate and confident individuals.

2. As early as 25 May, all employees had access to a Merger Hotline on which their personal entitlements to redundancy could be calculated (Ex'1', p16).

3. Despite being invited to do so, neither Ms Campitelli nor Mr Robertson made any formal approach to any person in management to ask specific questions or seek particular guarantees (Ex'1',p38).

4. Both employees acknowledged they knew what their salary was to be with Imperial, as well as other conditions, such as long service leave, annual leave and sick leave.

5. Both employees received written assurances that Imperial's policy and procedures would be similar to those established for them as part of their Wills employment (p46 of Ex'1').

6. Employees were told on the Hotline (Ex'1',p26) that Imperial would carry over redundancy conditions on " equivalent terms ", as if the employee had worked continuously for Wills.

7. Imperial had not yet assumed formal responsibility for the employees. It was Wills' responsibility to keep its employees fully and truthfully informed - although Wills was clearly acting on the information and decisions being made by Imperial.

8. Both employees were members of the Union. There is no evidence that they complained to the Union about these matters or that the Union sought information or guarantees on their behalf. Indeed, the Union's early representations were for the two employees to be made redundant; not what employment would be like with Imperial.

9. The employees' pay advices included details of accrued annual leave and long service leave entitlements.

10. In oral evidence, Mr Robertson said he knew Wills and Imperial had the same retrenchment policy.

11. Both employees were informed in writing that their future terms and conditions " would be no less favourable than when you started " (Ex'1',p54 and Tp80).

12. Mr Robertson in oral evidence said he had no reason to think the redundancy policy would not apply to him (Tp81).

13. The expressed terms of the sales agreement provide as follows: "Imperial (Aus) has made offers of employment to the Employees to commence from the day after the Completion Date on terms and conditions of employment no less favourable (taken as a whole) than those on which the Employees were employed at the time. (p10 of "Confidential Ex'2'"). 14) Ms Campitelli and Mr Robertson were the only two employees out of over one hundred who expressed the kind of reservations put during this case. All the other employees seemingly accepted Imperial's offer and transferred accordingly. 95 In light of this evidence, I find that the view of Ms Campitelli and Mr Robertson that they didn't know the precise details of their future conditions with Imperial, to be utterly extraordinary and without any logical basis. 96 For two experienced and intelligent employees to contend that they didn't know of their entitlements - or even make any formal inquiry about them - simply beggars belief. 97 In addition, for the employees to harbour baseless and unfounded suspicions as to the company's intentions is absurd and unsustainable. Did they really believe that Wills was not telling the truth? Surely, they cannot possibly be serious. 98 While it might be understandable that employees would worry about their future in the same workforce servicing 17% of the market rather than the previous 44% (as alleged by Mr Dedula, see Tp14), it is surely a very broad assumption predicated on no detailed knowledge of the company's marketing, investment or other strategies. This was not some corner shop transaction; Imperial was to invest $325 million in the new merged venture. Nevertheless, the correct concern of the Union and its members was the protection of entitlements. The fact was that all conditions and entitlements, including continuity and redundancy benefits, were protected. Nothing could have been more patently obvious. It was a totally misplaced view that this would not be so. It is even more bizarre when it logically follows, should job security fears be realised, that redundant employees would receive redundancy benefits on the same (or a slightly higher basis because of additional service) than was available from Wills. 99 Even if the company had reneged on its written commitments and assurances, recourse would have been available to this Commission under the Industrial Relations Act in respect to any issue of injustice or unfairness that might be alleged. 100 The employees were offered alternative employment which was, not only reasonable, but equivalent to their previous employment. In such circumstances, they cannot expect this Commission to regard their terminations of employment as harsh, unreasonable or unjust. 101 As to the fears of victimisation or being treated unfairly by Imperial management, these concerns have absolutely no basis. Having one's name on a list as not offering for employment with Imperial is hardly evidence of an intention to victimise or treat unfairly. It is drawing a very long bow indeed. 102 It is ludicrous to suggest that had the employees transferred at the eleventh hour, that the employer would look back and note that they didn't transfer early enough and therefore, in some way, seek to victimise them. What could possibly be gained by the employer in doing so? 103 In any event, the evidence is that neither Mr Robertson or Ms Campitelli ever raised these concerns with the management of Wills or Imperial or their Union. As earlier stated, these employees are not inexperienced, nor are they unsophisticated or unaware of their rights. Such rights, including protection from victimisation and being treated unfairly, are readily accessed through the relevant provisions of the Act. 104 In my view, this incredible reason, for refusing to take up employment with Imperial is without foundation. It is rejected.

The Process 105 I am perfectly satisfied that there were no elements of unfairness in the process leading to the transfer of business and its effect on the employees. On the contrary, I positively find the conduct of the employer to be scrupulously fair and perfectly reasonable. It was a genuine and generous effort to involve the employees, keep them informed, protect entitlements and, most importantly, secure alternative employment for all of them. 106 In my view, the process was thorough, comprehensive and open. Counsel for the Union sought to impugn the process on the basis that it changed from a merit selection system to one where all employees were offered alternative employment with Imperial. 107 There are a number of observations which need to be made about this submission:

1. There was no improper motivation for the change in process; indeed it wasn't even initiated by the employer. The change was as a direct result of requirements of the Australian Competition and Consumer Commission in respect to approving the sale arrangement.

2. Employees were informed as to the change and were provided with ample notice (three months) to consider the implications for their own personal circumstances.

3. There was no information withheld from employees and the change of process was implemented openly and fairly.

4. Merit selection processes are often criticised because of the potential for subjectivity and bias and where, by definition, some employees are chosen and others are not. Here the employees were given the alternative of a system which guaranteed retention of their employment, on no less favourable terms and conditions. It saved all, rather than some, jobs. 108 I am astounded this alternative would be criticised, even more amazed that it was criticised by the Union. In my view, it is to be applauded. 109 In correlating the evidence with the principles referred to earlier, it is difficult to conceive of what more the employer could have done to cushion the impact of the transfer and fulfil its obligations to employees. In my view, the expression functus officio can be appropriately applied to the employer in these circumstances.

CONCLUSION 110 Sadly, there is only one underpinning and unstated reason why the employees refused the offers of employment with Imperial. Blind Freddy could see it. I have no doubt their only motivation was that they wished the generous redundancy package to be applied to them, even though they were not redundant. 111 This Commission will give no comfort to claims of redundancy benefits where there is no lawful redundancy. While I appreciate that this was not the claim eventually pursued by Mr Rogers, it was most certainly the underlying theme throughout this entire case. 112 In the face of guaranteed reasonable alternative employment, their choice of pursuing a claim of unfair dismissal on such an obviously flawed basis was a risky gamble indeed. It was a choice that was freely open to them. 113 There is no basis for finding the terminations of employment were harsh, unreasonable or unjust, either substantively or procedurally. 114 I am moved to say, it is a tragedy that two competent and experienced employees have lost an opportunity for ongoing employment and have forfeited their continuity of service accumulated over twelve years. 115 However, in the circumstances, the Commission declines to make any orders under s136 of the Act. 116 These proceedings are concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.