I believe that the basic management principles that those two senior executives used in their positions were contrary to accepted and appropriate managerial style in terms of communication liaison, collaborate working arrangements, a whole host of similar characteristics which established a pattern, in my view a pattern of mismanagement
68 The applicant also said that Mr Furlong's management "of issues at around that period constituted mismanagement in my opinion."
69 In summary, the applicant thought that he was working in "an overall climate or culture of what I interpret was a hostile working environment … It was hostile in terms of the nature of communication and interaction between professional officers. It wasn't collaborative, it was very much speak when you are spoken to, if I need advice I will come to you, if I don't you won't hear from me, that was the climate in which I was working."
70 It was following the meeting on 17 October with Mr Haddad that the applicant put in his application to take leave without pay. At that stage, he did not tell Mr Haddad about the advanced state of his negotiations with Planning Workshop Australia, nor did he tell Mr Pearson, to whom he submitted the form, about these matters. He did, however, tell Mr Pearson that he was going to do some work on a home he had purchased and undertake some preparatory work on a development application. He said that he did not tell Mr Pearson that he was going to undertake some unpaid work for Planning Workshop Australia "because he would have understood the circumstances."
71 The applicant asserted that he had been encouraged by Mr Haddad to negotiate a starting date with Planning Workshop Australia in their conversation on 17 October 2007 after telling Mr Haddad that he did not intend to leave the Department until the outcome of the restructure was known. I have referred to this conversation in [27] above. I do not accept, even on the applicant's version of that conversation, that Mr Haddad made a representation that the applicant should negotiate a starting date with Planning Workshop Australia on the expectation that he would be made redundant and entitled to a redundancy payment.
72 I do not accept the applicant's explanation, nor do I accept his evidence that, at the time that he had the discussions with Mr Haddad in October 2007, he had not committed in his own mind to commencing work with Planning Workshop Australia. His evidence about his reasoning process is inconsistent with what he had told others and is inconsistent with his communications with Planning Workshop Australia.
73 The situation which is revealed by the evidence, and which I find, is that as at October and November 2007 the applicant had committed himself to commencing work for Planning Workshop Australia, and had committed himself to leaving the employment of the respondent but was endeavouring in some way to negotiate a voluntary redundancy payment if he could. At that stage he was juggling the conflicting need to commence new employment and to leave his then current employment on terms that would involve a payment under the respondent's voluntary redundancy program. Furthermore, he knew at that stage that the making of a voluntary redundancy payment was a possibility only and that there was resistance on the part of his employer to making any such payment.
74 After proceeding on unpaid leave, the applicant did not return to work with the respondent. He took sick leave during January 2008 until he commenced employment with Planning Workshop Australia in February that year.
75 In support of his application for sick leave, the applicant gave the respondent two medical certificates from a medical practice in Newcastle which indicated that the applicant was unable to attend work for the period 7 January 2008 until 17 February 2008 inclusive because of "medical illness".
76 The applicant's medical records with that medical practice became part of the evidence in the proceedings. The clinical notes indicate that on 7 January 2008, the applicant told the attending medical practitioner that he was stressed, "not sure if will be made redundant" and related a number of symptoms reflecting his stressed state. Of course, at that date, the applicant knew that his chances of securing a voluntary redundancy payment were remote. When asked why he had told the doctor that he was not sure about whether he would be made redundant, the applicant indicated in his evidence that this was a symptom of his stressed state.
77 To the extent that this matter has any ultimate relevance in these proceedings, I would conclude that the evidence does not establish that the stress which the applicant was feeling at that stage and the pressure which was being placed upon him was as a result of his failure to negotiate a voluntary redundancy payment prior to him commencing work for Planning Workshop Australia or from what he regarded as the stressful circumstances of his employment by reason of his "mismanagement" by others. Such a conclusion would need to be sustained by expert evidence properly qualified. It is impermissible to rely only on a statement given by the applicant to his medical practitioner as establishing some medical condition.
78 Payslips tendered into evidence indicate that the applicant was actually paid for work performed by Planning Workshop Australia for a period of four weeks from 19 November to 14 December 2007 and from 11 February 2008.
79 In evidence, the applicant said that the receipt of payment by Planning Workshop Australia during the first period was a mistake on its part because he was not to be paid for any work performed during that period because he was still on the respondent's payroll. Nevertheless, he made no attempt ultimately to repay those monies.
80 In addition to the evidence which I have summarised above, affidavit evidence was also given by Jennifer Westacott, David Broyd, James Ryan and Neil McGaffin. I have not referred to that evidence specifically because, in my opinion, it is not relevant for the determination of the issues that need to be considered in these proceedings.
81 At [5] and [6] above, I have set out, respectively, the allegations made by the applicant directed to establishing the relevant unfairness and the issues agreed upon between the parties as requiring determination by the Court.
82 The allegations of unfairness refer, inter alia, to "the position occupied by the applicant" and "the applicant's position".
83 There are two senses in which one may refer to the position of the applicant. The first is a reference to the position in the organisation which he occupied. That was, at all material times, that of Regional Director. The second sense in which this word may be used is a reference to the personal position of the applicant by reference to the duties that he was personally required to perform and the obligations and responsibilities of his job which were personal to him. Obviously, a change in the nature of the position which the applicant occupied in the organisation would have consequential effects on his duties, obligations and responsibilities. However, as I have observed, at all material times the applicant occupied the position of Regional Director. That position did not change during the course of the applicant's employment with the respondent although, obviously, there was a change in the work that needed to be performed in that position and the consequential duties, obligations and responsibilities of the applicant.
84 Similarities can be drawn with the case of Jones v Department of Energy and Minerals (1995) 60 IR 304 where, although in that case the position was held to be genuinely redundant, Ryan J made some helpful comments regarding an employer's general right to reorganise the company structure.